[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-11955

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

WARREN LAVELL JACKSON, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:99-cr-14021-DMM-1

____________________

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ON REMAND FROM THE SUPREME COURT OF THE 

UNITED STATES 

Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and 

JUNG,* District Judge.

WILLIAM PRYOR, Chief Judge:

 This appeal on remand from the Supreme Court requires us 

to reconsider, following the Supreme Court’s decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), whether the district 

court erred in denying Warren Jackson’s motion for a reduced sentence under the First Step Act of 2018. Following supplemental 

briefing, we conclude that Concepcion did not abrogate the reasoning of our decision in United States v. Jones, 962 F.3d 1290 (11th 

Cir. 2020), which forecloses Jackson’s claim for relief. We also disagree with the parties that Jackson is entitled to relief because his 

original sentence was pending on direct appeal when the Supreme 

Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). So, we 

reinstate our prior decision and affirm the denial of relief.

I. BACKGROUND 

In 1999, a grand jury charged Jackson with one count of possessing with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. section 841(a)(1). See Jones, 962 F.3d 

at 1295. Jackson proceeded to trial, where a jury found him guilty. 

* Honorable William F. Jung, United States District Judge for the Middle District of Florida, sitting by designation.

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The jury did not make a finding as to the specific drug quantity 

involved in Jackson’s crime; Jackson “was prosecuted before Apprendi v. New Jersey made clear that drug-quantity findings that 

increase a defendant’s punishment must be made by a jury based 

on a standard of proof of beyond a reasonable doubt.” Id. at 1293 

(citing 530 U.S. at 490). The district court found that the offense 

involved 287 grams of crack cocaine. Based on this drug-quantity 

finding and after applying a sentencing enhancement for three 

prior felony drug convictions, the district court imposed a statutorily mandated sentence of life imprisonment. 21 U.S.C.

§ 841(b)(1)(A)(iii) (1994); see also United States Sentencing Guidelines § 5G1.1(b) (1998).

Following the district court’s decision, Jackson has had multiple opportunities to challenge his sentence. We affirmed his conviction and sentence on direct appeal. The district court denied at 

least four habeas petitions, 28 U.S.C. § 2255(a), and a motion to vacate his sentence pursuant to Rule 60, FED. R. CIV. P. 60. And it

denied his motions for a reduction of his sentence. 18 U.S.C. 

§ 3582(c)(2). Afterward, the President commuted Jackson’s sentence to 300 months’ imprisonment. 

In 2019, Jackson moved to reduce his sentence under the 

First Step Act, which permits “[a] court that imposed a sentence for 

a covered offense [to] . . . 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.” First Step Act of 2018, Pub. 

L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (internal citation 

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omitted). The Act defines a “covered offense” 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, that was committed before August 3, 2010.” Id. § 404(a) (internal citation omitted). Section 2(a) of the Fair Sentencing Act of 2010, Pub. L. No. 

111-220, 124 Stat. 2372, 2372, increased the quantity of crack cocaine necessary to trigger the mandatory penalties under 21 U.S.C. 

sections 841(b)(1)(A)(iii) and (b)(1)(B)(iii). Jones, 962 F.3d at 1297.

“A defendant now must traffic at least 280 grams of crack cocaine 

to trigger the highest penalties.” Id. 

Because the First Step Act retroactively applies the reduced 

penalties for crack-cocaine offenses under the Fair Sentencing Act, 

movants ordinarily argue that the drug-quantity finding that determined their statutory penalty at the time of sentencing would permit a lower penalty under the Fair Sentencing Act. Jackson did not 

make that argument because, at his sentencing hearing, the judge

found that the offense involved 287 grams of crack cocaine. That 

amount—because it is above 280 grams—still triggers “the highest 

penalties” under the Fair Sentencing Act. Id.

Instead, Jackson argued he was eligible for a sentence reduction because a judge, not a jury, made the drug-quantity finding

that increased his statutory range. Jackson maintained that under 

Apprendi and Alleyne v. United States, 570 U.S. 99, 116 (2013), “the 

statutory penalties [in 21 U.S.C. section 841(b)] may be based only 

on a . . . [drug quantity] found as an element by a jury beyond a 

reasonable doubt.” Jackson argued that the judge-made drugUSCA11 Case: 19-11955 Document: 75-1 Date Filed: 02/03/2023 Page: 4 of 14
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quantity finding was thus invalid and that he should have been sentenced within a lower statutory range. He argued that the district 

court should reduce his sentence under the First Step Act. 

The district court denied Jackson’s motion. It ruled that the 

Fair Sentencing Act “would have had no impact on [Jackson’s] sentence . . . [b]ecause the offense involved 2[87] grams of cocaine.” 

So, after accounting for Jackson’s enhancements, he would still be 

subject to the same statutory mandatory minimum of life imprisonment.

 In United States v. Jones—a consolidated appeal involving 

four unrelated appellants—we affirmed the denial of Jackson’s motion. We held that although Jackson was convicted of a “covered 

offense,” he did not prove that the reduction he sought would be 

“as if . . . the Fair Sentencing Act . . . were in effect at the time the 

covered offense was committed.” Jones, 962 F.3d at 1303 (quoting 

First Step Act § 404(b)). We held that the “‘as-if’ requirement imposes two [relevant] limits.” Id.; see also United States v. Jackson, 

995 F.3d 1308, 1309 (11th Cir. 2021) (Pryor, C.J., respecting denial 

of rehearing en banc). “First, it does not permit reducing a movant’s sentence if he received the lowest statutory penalty that also 

would be available to him under the Fair Sentencing Act.” Jones, 

962 F.3d at 1303. “Second, in determining what a movant’s statutory penalty would be under the Fair Sentencing Act, the 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. 

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We clarified that “previous finding[s] of drug quantity that 

could have been used to determine the movant’s statutory penalty” 

include “a previous drug-quantity finding that was necessary to 

trigger the statutory penalty [even] if it was made by a judge.” Id.

at 1302. We acknowledged that, under Apprendi, a jury must make 

a drug-quantity finding if it increases the statutory penalty. Id. But 

we held 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. (internal citation 

omitted). So, we concluded that “in deciding motions for reduced 

sentences under the First Step Act,” the district court may “rely[]

on earlier judge-found facts that triggered statutory penalties that 

the Fair Sentencing Act later modified.” Id. at 1303.

We held that the district court was bound by the judge’s earlier drug-quantity finding of 287 grams of crack cocaine. Id. at 1304. 

Based on this amount, we held that the “[t]he district court correctly concluded that it could not reduce Jackson’s sentence because his drug-quantity finding meant that he would face the same 

statutory penalty of life imprisonment under the Fair Sentencing 

Act.” Id. (citing 21 U.S.C. § 841(b)(1)(A)(iii) (2012)). Because Jackson’s sentence “would have necessarily remained the same,” following the consideration of the drug-quantity finding, “[a]ny reduction the district court would grant would not be ‘as if’ the Fair 

Sentencing Act had been in effect.” Id. at 1303. 

Following our decision, Jackson petitioned for rehearing en 

banc. We denied his petition. See Jackson, 995 F.3d at 1308. Jackson 

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then petitioned for a writ of certiorari from the Supreme Court. 

During the pendency of his petition, the Supreme Court decided in

Concepcion v. United States, 142 S. Ct. at 2396, which factors, besides the changes to the crack-cocaine sentencing ranges, a district 

court may consider in deciding whether to exercise its discretion to

reduce a sentence for a covered offense under the First Step Act.

The Supreme Court explained that the “as if” clause did not “limit 

the information a district court may use to inform its decision 

whether and how much to reduce a sentence.” Concepcion, 142 S. 

Ct. at 2402. The Supreme Court held that a district court “may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) 

in adjudicating a First Step Act motion.” Id. at 2396. In October 

2022, the Supreme Court granted Jackson’s petition, vacated our 

judgment, and remanded the case for further consideration in the 

light of Concepcion. Jackson v. United States, 143 S. Ct. 72 (2022). 

II. STANDARD OF REVIEW 

 “We review de novo questions of statutory interpretation 

and whether a district court had the authority to modify a term of 

imprisonment.” Jones, 962 F.3d at 1296 (internal citation omitted). 

“We review for abuse of discretion the denial of an eligible movant’s request for a reduced sentence under the First Step Act.” Id. 

III. DISCUSSION

We divide our discussion into two parts. First, we explain 

that Concepcion did not abrogate our holding that “the district 

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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.” Jones, 962 F.3d at 1303. Second, we explain 

that Jackson cannot use a motion for a reduced sentence to correct 

an error based on Apprendi.

A. The District Court Correctly Relied on the Judge-Made DrugQuantity Finding to Calculate Jackson’s Sentencing Range.

Jackson argues that Concepcion “cannot be squared” with 

Jones’s holding that district courts are bound by judge-made drugquantity findings in First Step Act proceedings. Jackson maintains 

that “the [Supreme] Court rejected Jones’[s] core premise that the 

‘as if’ language in § 404(b) imposes a substantive limit on the information a court can consider under the [First Step] Act.” Jackson 

interprets Concepcion to give district courts complete discretion—

without “any limitations” imposed by the “as-if” provision—to 

consider arguments “in favor of, or against, sentence modification.” Jackson maintainsthat the district court was “free to consider 

intervening changes in law, including . . . Apprendi, in deciding 

whether to reduce [Jackson’s] sentence under the First Step Act.” 

The district court’s discretion, Jackson suggests, includes the authority to ignore the earlier judge-made drug-quantity finding in 

calculating his statutory sentencing range. We disagree.

 We do not read Concepcion so broadly. In Concepcion, the 

Supreme Court addressed which factors a district court may consider when a prisoner who was convicted of a “covered offense” 

seeks a reduced sentence under the First Step Act. 142 S. Ct. at 2396. 

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The movant in Concepcion was convicted of a “covered offense” 

for which the penalty range had been lowered in the Fair Sentencing Act. Id. at 2396–97. But he wanted the district court to consider 

other criteria during his First Step Act sentencing modification 

hearing. For example, he wanted the court to acknowledge legal 

changes that postdated his original sentencing. These changes included the vacatur of one of his state convictions and the Supreme 

Court’s decision that his other convictions would no longer count 

as “crimes of violence.” Id. And he wanted the court to consider 

new factual developments. He maintained that he had been rehabilitated, citing his drug treatment, job training, and spiritual 

growth. Id. The district court had refused to consider these factors. 

It ruled that it could “consider[] only the changes in law that the 

Fair Sentencing Act enacted,” not other evidence. Id. 

The Supreme Court disagreed. It cited the traditional “discretion federal judges hold at . . . sentencing modification hearings.” Id. at 2399. In the First Step Act, Congress “did not contravene this well-established sentencing practice.” Id. at 2401. The Supreme Court concluded that district courts deciding First Step Act 

motions may “consider intervening changes of law or fact in exercising their discretion to reduce a sentence.” Id. at 2404. That is, 

they may consider whether a movant’s “evidence of rehabilitation 

or other changes in law counsel in favor of a sentence reduction”

for an eligible defendant. Id. at 2404–05.

Concepcion does not alter our decision in Jones, which, unlike Concepcion, was concerned with an issue that arises before the 

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sentencing court’s discretion comes into play: determining how 

much of a drug the defendant possessed. Jones, 962 F.3d at 1303. 

This finding must occur before the district court can define the substantive offense. Id. at 1302. In Jones, we held that a district court 

considering a First Step motion is bound by “earlier judge-found 

facts that triggered statutory penalties that the Fair Sentencing Act 

later modified.” Id. at 1303. Those facts include “previous finding[s] 

of drug quantity.” Id. 

Concepcion, by contrast, addressed an issue that arises only 

after drug quantity and the corresponding statutory penalties have 

been established: which factors the district court may consider in 

deciding an appropriate sentence. For instance, had the movant 

shown evidence of rehabilitation? Such questions are hardly unusual during a sentencing proceeding. The only peculiarity is that 

the First Step Act permits movants to raise them a second time at 

a modification proceeding. Put differently, in Concepcion, the Supreme Court held that the movant effectively receives a new sentencing determination if he was convicted of a “covered offense” 

under the First Step Act. During its deliberations, the district court 

may consider intervening factual and legal developments. It may 

also decline to modify the movant’s sentence and choose to leave 

the earlier sentence intact. See Concepcion, 142 S. Ct. at 2404–05. 

Concepcion did not hold that First Step Act movants could 

relitigate their cases from the ground up. In fact, the Court suggested the opposite. It cautioned that “[a] district court cannot . . . 

recalculate a movant’s benchmark Guidelines range in any way 

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other than to reflect the retroactive application of the Fair Sentencing Act.” Concepcion, 142 S. Ct. at 2402 n.6; see also id. at 2403 n.8. 

This guidance is fully consistent with Jones, in which we held that

a movant “cannot rely on Apprendi to redefine his offense for purposes of a First Step Act motion.” 962 F.3d at 1302. If a movant 

could use Apprendi to redefine his offense, then the district court 

would have to recalculate his guideline range in violation of the 

guidance in Concepcion. So Concepcion reinforces our conclusion 

in Jones that movants may not use a First Step Act proceeding to 

relitigate a drug-quantity finding. 

If we concluded otherwise, we would transform the First 

Step Act into a more powerful remedy than a motion to vacate. See

28 U.S.C. § 2255. Jackson maintains that district courts weighing a 

motion to reduce a sentence may consider any intervening change 

of law or fact, regardless of its nexus to sentencing. If that proposition were true, then movants could use the First Step Act to relitigate not only their drug-quantity finding but also any other factual 

findings—including their guilt. District courts do not traditionally 

have that kind of discretion during initial sentencings or sentencing 

modification hearings. Concepcion, 142 S. Ct. at 2399 (“The discretion federal judges hold at initial sentencings also characterizes sentencing modification hearings.”). 

“Nothing in the text [of the First Step Act]” implies such discretion or invites district courts to “change other variables” than 

the modified statutory penalty. Jackson, 995 F.3d at 1310 (Pryor, 

C.J., respecting denial of rehearing en banc). Instead, the factual

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findings that support a conviction and statutory penalty may be 

challenged on direct appeal. Jackson pursued this route decades 

ago and failed. He also moved to vacate his sentence and lost. The 

First Step Act does not give him another chance.

B. Jackson Is Not Entitled to Relief Based on the Timing of His 

Direct Appeal.

Although the parties disagree about the impact of Concepcion on this appeal, they both urge us to remand the case “because 

of the particular procedural circumstances of . . . Jackson’s case.” 

The parties correctly state that Jackson’s sentence was pending on 

direct appeal when the Supreme Court decided Apprendi. And they 

seize on language from Jones, where we stated that “in determining what a movant’s statutory penalty would be under the Fair Sentencing Act, the 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.” Jones, 962 F.3d at 1303. 

The parties maintain that because Apprendi held that a jury must 

make a drug-quantity finding and was issued while Jackson’s direct 

appeal was pending, the judge’s drug-quantity finding “is not a finding that ‘could have been used to determine [Jackson’s] statutory 

penalty at the time of sentencing.’” (Emphasis added.) We reject 

the argument that we may now correct an Apprendi error that was 

correctible on direct appeal.

“[N]othing in [the First Step Act] suggests that a district 

court may revisit a drug-quantity finding for a trafficker’s statutory 

penalty . . . .” Jackson, 995 F.3d at 1311 (Pryor, C.J., respecting 

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denial of rehearing en banc). As Jones explained, when the district 

court considers a motion for reduced sentence under the First Step 

Act, it may “rely[] on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified.” 962 F.3d 

at 1303. Those facts include “a previous drug-quantity finding that 

was necessary to trigger the statutory penalty if it was made by a 

judge.” Id. at 1302. “[T]he district court is bound by [its] previous 

finding of drug quantity in the same way that it is bound by its previous finding of drug type.” Jackson, 995 F.3d at 1310 (Pryor, C.J., 

respecting denial of rehearing en banc) (internal quotation marks 

and citation omitted). 

That Jackson’s direct appeal was pending when Apprendi 

was decided does not change this calculus. To be sure, “[a] new 

rule of criminal procedure applies to cases on direct review, even if 

the defendant’s trial has already concluded.” Edwards v. Vannoy, 

141 S. Ct. 1547, 1554 (2021). The parties repeatedly press this point

and argue that Apprendi must apply here. But Jackson’s direct appeal occurred long ago, and a First Step Act motion cannot masquerade as a direct appeal. “[J]ust 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.” Jones, 962 F.3d at 1302 (internal citation omitted). Jackson 

cannot use a motion for a reduced sentence to relitigate an earlier 

drug-quantity finding.

Jackson had a remedy. After Apprendi was decided, he could 

have challenged his sentence as erroneous before we issued the 

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mandate for his direct appeal on the ground that the issue of drug 

quantity was determined by the sentencing judge, not the jury. See 

United States v. Cotton, 535 U.S. 625, 628–29 (2002). Other defendants took this approach. He apparently did not. Although Jackson 

argued in his motion to vacate, 28 U.S.C. § 2255, that his sentence 

violated the Sixth Amendment, “Apprendi does not apply retroactively [to cases] on collateral review.” McCoy v. United States, 266 

F.3d 1245, 1258 (11th Cir. 2001). The First Step Act does not offer 

Jackson a redo of his direct appeal. 

IV. CONCLUSION

We reinstate our prior decision and AFFIRM the order denying Jackson’s motion to reduce his sentence. 

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