United States Court of Appeals

for 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 of two counts of 

possession with intent to distribute five grams or more of cocaine base. He 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2021

Lyle W. Cayce

Clerk

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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 enhancement;

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 FSA 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 FSA 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 

Sentencing 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 States 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). 

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Brock committed his offenses of conviction in 2002, prior to the 2010 

effective date of the FSA.

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 motion 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 FSA.

11

 Furthermore, a career offender is

not ineligible for relief under the FSA.

12

 Finally, because Brock was 

convicted of a “covered offense,” the § 851 enhancement does not render 

him ineligible.

13

The district court therefore erroneously 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 See Jackson, 945 F.3d at 318, 320. 

14 See id. at 321. 

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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. 

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