[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-12051 

Non-Argument Calendar

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D.C. Docket No. 4:94-cr-00006-HLM-12

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

PHILLIP PRICE WYATT, 

a.k.a. Seedie, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 26, 2020)

Before ED CARNES, Chief Judge, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: 

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Phillip Price Wyatt was found guilty of conspiracy to possess with the intent 

to distribute “mixtures containing” cocaine base (“crack cocaine”) and possession 

“with the intent to distribute cocaine” in 1994. Based on the charging and 

sentencing practices at the time, the indictment did not state the specific amount of 

drugs Wyatt trafficked, nor did the jury make any findings about the specific drug

amounts; instead, the Presentence Investigation Report attributed to Wyatt “at least 

70 kilograms” of crack cocaine. At sentencing Wyatt objected to that amount, but 

the court overruled the objection and adopted the findings of the PSR. Based on 

the sentencing guidelines in effect at that time, Wyatt was sentenced to life in 

prison. 

In 2015 Wyatt and the government jointly moved to reduce his sentence 

under Amendment 782 to the guidelines, which lowered the base offense level for 

crack cocaine offenses. The court granted that motion and sentenced Wyatt to 360 

months in prison, the minimum under the new guideline.

In 2019 Wyatt filed a motion to reduce his sentence under § 404 of the First 

Step Act. The First Step Act says that a court “may, on motion of the 

defendant, . . . impose a reduced sentence as if sections 2 or 3 of the Fair 

Sentencing Act of 2010 . . . were in effect at the time the covered offense was 

committed.” S. 756, 115th Cong., § 404(b) (2018) (emphasis added). But 

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“[n]othing in this section shall be construed to require a court to reduce any 

sentence pursuant to this section.” S. 756, 115th Cong., § 404(c).

A covered offense is one that was modified by the Fair Sentencing Act of 

2010. S. 756, 115th Cong., § 404(a). For purposes of this appeal, what matters is 

that the Fair Sentencing Act modified crack cocaine sentences for offenses 

involving 280 grams or less of crack cocaine. Fair Sentencing Act of 2010, Pub. L. 

No. 111-220, 124 Stat. 2372. § 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), 

(B)(iii).

The district court found that Wyatt was ineligible for relief under the 

retroactive provisions of the Fair Sentencing Act of 2010 because his offense 

involved more than 280 grams of crack cocaine. The court relied on the sentencing 

court’s finding that he had at least 70 kilograms of crack cocaine to make that 

determination. The district court also found, in the alternative, that Wyatt was not 

entitled to a plenary resentencing and that, even if Wyatt was eligible for a reduced 

sentence, it would not exercise its discretion to do so in light of the quantity of 

drugs involved. Wyatt appeals.

We review sentencing decisions for abuse of discretion. United States v. 

Irey, 612 F.3d 1160, 1188 (11th Cir. 2010). But we review de novo questions of 

statutory interpretation. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 

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2009). “A district court by definition abuses its discretion when it makes an error 

of law.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).

On appeal, Wyatt contends that the district court should have considered 

only his charged conduct in determining whether his offense was a covered offense

and that, because the indictment charged him with an unspecified amount of crack 

cocaine, his offense fell within the covered offenses of the First Step Act. He 

argues that the district court erred in considering the 70 kilograms of crack cocaine 

attributed to him at sentencing and that such finding is now unconstitutional 

because it relies on facts that were determined by the court, not a jury. See

Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 

466 (2000). And, Wyatt argues, because his sentence would now be 

unconstitutional, the district court had no choice but to resentence him. He adds 

that the district court erred in finding that the First Step Act did not allow for a 

plenary resentencing.

Although we have held that Alleyne and Apprendi do not apply retroactively 

on collateral review, see Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th 

Cir. 2014), we have not addressed whether and to what extent Alleyne and 

Apprendi apply to cases involving motions for reduction of sentences under § 404 

of the First Step Act. And we need not decide that question now.

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Here, the district court’s order makes clear that, even if Wyatt’s offense did 

qualify for reduction, it would not have exercised its discretion to do so. Wyatt 

attempts to cabin the district court’s discretion by arguing that because his newly 

calculated maximum sentence would be below his current sentence, the court must

reduce his sentence under § 404 of the First Step Act. But that flies in the face of 

the plain language of the act. Congress made clear that courts “may . . . impose a 

reduced sentence,” but that “[n]othing in this section shall be construed to require a 

court to reduce any sentence.” S. 756, 115th Cong., § 404(b), (c) (emphasis 

added). We take Congress at its word that “nothing” in § 404 of the First Step Act

required the district court to reduce Wyatt’s sentence. “Nothing” means nothing. 

The district court did not abuse its discretion by choosing not to do so here.

AFFIRMED. 

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