# United States Court of Appeals

f or the Fifth Circuit

No. 19

- 20786 Summary Calendar

United States of America,
Plaintiff

— Appellee ,

versus
Kristopher Brock,
Defendant

— Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:02

- CR

- 364

- 1

Before Owen, Chief Judge , and Dennis and Ho, Circuit Judges

. Per Curiam : * Kristopher Brock is serving a sentence of 360 months of imprisonment, imposed in 2004 after he was found guilty o f two counts of possession with intent to distribute five grams or more of cocaine base. He

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 13, 2021 Lyle W. Cayce Clerk Case: 19-20786 Document: 00515705833 Page: 1 Date Filed: 01/13/2021No. 19

- 20786

2 moved for resentencing under the First Step Act of 2018 (FSA)

. 1 The district court denied the motion, determining that Brock was ineligible for relief under the FSA based on: (1) the amount of drugs for which he was held accountable, i.e., greater than twenty

- eight grams of cocaine base; (2) the career offender enhanc ement ; 2 and (3) the 21 U.S.C. § 851 enhancement on account of Brock’s prior Texas convictions for possession with intent to deliver cocaine and possession of a controlled substance . Brock argues that he meets the threshold requirements for eligibility and , particularly, that his career offender status does not render him ineligible.

The district court’s decision regarding whether to reduce a sentence pursuant to the F SA is generally reviewed for abuse of discretion. 3 However, when the district court’s “ determination turns on ‘ the meaning of a federal statute, ’ ” de novo review applies. 4 Section 404(b) of the F SA provides that

a district court “ that imposed a sentence for a covered offense may

. . . impose a reduced 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.” 5 A “ covered offense” is defined as “ a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair S entencing Act of 2010 , . . . that was committed before August 3, 2010.” 6

1 See Pub. L. No. 115

- 391, § 404, 132 Stat. 5194, 5222.

2 See U.S. Sent’g Guidelines Manual § 4B1.1 ( U.S. Sent’g Comm’n 2002).

3 United States v. Jackson , 945 F.3d 315, 319 (5th Cir. 2019), cert. denied , 140 S. Ct. 2699 (2020) (Mem.).

4 Id . (quoting United S

tates v. Hegwood , 934 F.3d 414, 417 (5th Cir. 2019), cert. denied , 140 S. Ct. 285 (2019) (Mem.)).

5 § 404(b), 132 Stat. at 5222.

6 Id. § 404(a)

. Case: 19-20786 Document: 00515705833 Page: 2 Date Filed: 01/13/2021No. 19

- 20786

3 Brock committed his offenses of conviction in 2002, prior to the 2010 effective date of the F SA

. 7 Additionally, his 21 U.S.C. § 841(a)(1) conviction is a “covered offense.” 8 What is more , § 404(c)’s limitations do not apply to Brock. His sentence was not “previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010,” nor did he previously file a motio n under the FSA to reduce his sentence after the FSA’s date of enactment. 9 Brock’s drug quantity finding, although in excess of the twenty

- eight

- gram statutory threshold of the modified penalty provisions , 10 is not determinative of his eligibility to seek relief under the F SA

. 11 Furthermore , a career offender is

not ineligible for relief under the F SA

. 12 Finally, b ecause Brock was convicted of a “covered offense,” t he § 851 enhancement does not render him ineligible

. 13

The district court therefore erroneousl y deemed Brock ineligible for relief under the FSA. However, Brock’s eligibility for relief is not tantamount to an entitlement to relief. 14 We therefore vacate the order

7 See id.

8 See Jackson , 945 F.3d at 318, 320

- 21.

9 § 404(c), 132 Stat. at 5222; see Jackson , 945 F.3d at 320

- 21.

10 See 21 U.S.C. § 841(b)(1)(B)(iii).

11 See Jackson , 945 F.3d at 319

- 20.

12 See United States v. Stewart , 964 F.3d 433, 436

- 39 (5th Cir. 2020); United States

v. Hegwood , 934 F.3d 414, 415 , 417

- 18 (5th Cir. 2019), cert. denied , 140 S. Ct. 285 (2019) (Mem.).

13 S ee Jackson , 945 F.3d at 318, 320.

14 See id

. at 321. Case: 19-20786 Document: 00515705833 Page: 3 Date Filed: 01/13/2021No. 19

- 20786

4 denying Brock’s motion for resentencing and remand for the district court to determine, in its discretion, whether his sentence should be reduced. 15

* * *

VACATED and REMANDED

.

15 See id. ; Stewart , 964 F.3d at 439

. Case: 19-20786 Document: 00515705833 Page: 4 Date Filed: 01/13/2021