[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-10806

Non-Argument Calendar

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D.C. Docket No. 1:97-cr-00509-FAM-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

LEONCIO PEREZ, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 27, 2021)

Before JILL PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:

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Leoncio Perez, a federal prisoner, appeals the district court’s denial of his 

motion for a reduction of sentence under § 404(b) of the First Step Act of 2018. 

Because the district court lacked the authority to reduce his sentences, we affirm.

I.

In 1997, a grand jury charged Perez with one count of conspiring to possess 

with intent to distribute cocaine and one count of possessing with intent to 

distribute cocaine. Prior to trial, the government notified Perez that it intended to 

seek enhanced sentences on each count based on his prior convictions for felony 

drug offenses. See 21 U.S.C. § 851(a)(1). At trial, the jury returned a guilty 

verdict on both counts. The verdict form did not require the jury to determine

whether the offenses involved crack cocaine or powder cocaine or the quantity of 

drugs involved in each offense.

At Perez’s sentencing, the district court found that Perez was responsible for 

616.4 grams of crack cocaine. Given this drug quantity and Perez’s prior 

convictions for felony drug offenses, the district court imposed a mandatory life 

sentence on each count, with the sentences to run concurrently.

Perez appealed, challenging his convictions and life sentences. We 

affirmed. We held that the district court’s drug-quantity determination was not 

clearly erroneous and the district court did not err applying in the mandatory life 

sentence provision in 21 U.S.C. § 841(b)(1)(A). 

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In 2010, Congress passed the Fair Sentencing Act to address disparities in 

sentences between offenses involving crack cocaine and those involving powder 

cocaine. See Pub. L. No. 111-220, 124 Stat. 2372 (2010); see also Kimbrough v. 

United States, 552 U.S. 85, 97–100 (2007) (providing background on disparity). 

The Fair Sentencing Act increased the quantity of crack cocaine necessary to 

trigger the highest statutory penalties from 50 grams to 280 grams and the quantity 

of crack cocaine necessary to trigger intermediate statutory penalties from 5 grams 

to 28 grams. See Fair Sentencing Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii). 

But the Fair Sentencing Act’s reduced penalties applied only to defendants who 

were sentenced on or after the Fair Sentencing Act’s effective date. Dorsey v. 

United States, 567 U.S. 260, 264 (2012).

Congress subsequently passed the First Step Act of 2018, Pub. L. No. 115-

391 § 404, 132 Stat. 5194, 5222 (2018). Among other things, the First Step Act 

gives district courts the discretion “to apply retroactively the reduced statutory 

penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants 

sentenced before those penalties became effective.” United States v. Jones, 

962 F.3d 1290, 1293 (11th Cir. 2020). 

After the First Step Act went into effect, Perez filed a motion in the district 

court seeking a sentence reduction. The district court denied the motion. This is 

Perez’s appeal. 

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II.

We review de novo whether a district court had authority to modify a term of 

imprisonment under the First Step Act. Jones, 962 F.3d at 1296. 

III.

District courts generally lack the authority to modify a term of imprisonment 

once it has been imposed. See 18 U.S.C. § 3582(c). But the First Step Act permits 

district courts to reduce some previously-imposed terms of imprisonment for 

offenses involving crack cocaine. See First Step Act § 404. When a movant has a 

“covered offense,” a district court has discretion to grant a sentence reduction and 

shall impose a sentence “as if sections 2 and 3 of the Fair Sentencing Act of 2010

. . . were in effect at the time the covered offense was committed.” Id. § 404(b). 

In Jones, we addressed when the First Step Act authorizes a district court to 

reduce a movant’s sentence. We explained that to be eligible for a sentence 

reduction, a movant must have a “covered offense,” meaning he has to have been 

sentenced for a crack-cocaine offense that triggered the higher penalties in 

§ 841(b)(1)(A)(iii) or (B)(iii). Jones, 962 F.3d at 1298. But even when a movant 

has a conviction for a covered offense, a district court is not necessarily authorized 

to reduce his sentence because the First Step Act specifies that the district court has 

to impose a reduced sentence “as if” the Fair Sentencing Act had been in effect at 

the time the covered offense was committed. Id. at 1303 (internal quotation marks 

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omitted). When a movant’s sentence is already equal to what his mandatoryminimum sentence would have been under the Fair Sentencing Act, he is ineligible 

for a sentence reduction because his “sentence would have necessarily remained 

the same had the Fair Sentencing Act been in effect.” Id.

To determine what a movant’s statutory penalty would have been if the Fair 

Sentencing Act had been in effect at the time he committed his offense, “a district 

court is bound by a previous finding of drug quantity that could have been used to 

determine the movant’s statutory penalty at the time of sentencing.” Id. In 

Apprendi v. New Jersey, the Supreme Court held that a finding that increases a 

defendant’s punishment beyond the prescribed statutory maximum must be made 

by a jury based on a beyond-a-reasonable-doubt standard of proof. 530 U.S. 466, 

490 (2000). Prior to Apprendi, district courts frequently made findings at 

sentencing hearings about the quantity of drugs involved an offense and these 

findings were then used to determine whether defendants were subject to enhanced 

statutory penalties under § 841(b). See United States v. Sanchez, 269 F.3d 1250, 

1266–67 (11th Cir. 2001) (en banc), abrogated on other grounds by United States 

v. Duncan, 400 F.3d 1297 (11th Cir. 2005). In Jones, we concluded that for 

movants who were sentenced prior to Apprendi, courts should use the drugquantity finding made at sentencing to determine what the movant’s penalty range 

would have been under the Fair Sentencing Act because this finding was used to 

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set the movant’s statutory penalty range. Jones, 962 F.3d at 1302; see United 

States v. Russell, 994 F.3d 1230, 1237 n.7 (11th Cir. 2021).

1

On appeal, Perez argues that the district court erred in concluding that he 

was ineligible for a sentence reduction. We conclude that Perez’s convictions 

qualify as covered offenses because he was sentenced for crack-cocaine offenses

that triggered the higher penalties in § 841(b)(1)(A)(iii) or (B)(iii). See Jones, 

962 F.3d at 1298. That Perez satisfied the covered offense requirement is not the 

end of the inquiry, however. We also must consider whether Perez already had 

been sentenced “as if” the Fair Sentencing Act had been in effect at the time the 

covered offense was committed. Id. at 1303 (internal quotation marks omitted). 

Because Perez was convicted and sentenced before the Supreme Court’s decision 

in Apprendi, we look to the drug quantity finding made at sentencing to determine 

what Perez’s statutory penalty range would have been under the Fair Sentencing 

1 In Jones, we acknowledged that the Supreme Court’s decision in Apprendi made clear 

that the practice of using judge-made findings to increase the statutory penalty ranges a 

defendant faced was—and always had been—unconstitutional. See Jones, 962 F.3d at 1302. We 

nevertheless concluded that for a pre-Apprendi movant a court should look to a drug-quantity 

finding made at sentencing to determine what a movant’s penalty range would have been under 

the Fair Sentencing Act, explaining that “just as a movant may not use Apprendi to collaterally 

attack his sentence, he cannot rely on Apprendi to redefine his offense for purposes of a First 

Step Act motion.” Id. (citation omitted). Some members of our Court disagree with this 

analysis. See United States v. Jackson, No. 19-11955, F.3d , 2021 WL 1728590, at *6 (11th 

Cir. May 3, 2021) (Martin, J., dissenting from denial of reh’g en banc). Regardless, under our 

prior-panel-precedent rule, we are bound by Jones. See Smith v. GTE Corp., 236 F.3d 1292, 

1300 n.8 (11th Cir. 2001) (recognizing that “the holding of the first panel to address an issue is 

the law of this Circuit” and “bind[s] all subsequent panels unless and until the first panel’s 

holding is overruled by the Court sitting en banc or by the Supreme Court”).

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Act. Jones, 962 F.3d at 1302; see Russell, 994 F.3d at 1237 n.7. Given the district 

court’s finding that the offenses involved 616.4 grams of crack cocaine and Perez’s

prior convictions for felony drug offenses, he would have been subject to 

mandatory life sentences if the Fair Sentencing Act had been in effect at the time

he committed the offenses. See 21 U.S.C. § 841(b)(1)(A)(i) (2011). Because 

Perez’s life sentences necessarily would remain the same under the Fair Sentencing 

Act, the district court lacked the authority to reduce his sentences. See Jones, 

962 F.3d at 1303. 

AFFIRMED.

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