[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11495

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

RICHARD DANIEL, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:02-cr-20676-CMA-2

____________________

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2 Opinion of the Court 23-11495

Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges

PER CURIAM:

Richard Daniel appeals the district court’s order denying his 

motion to reduce his sentence under § 404(b) of the First Step Act 

of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), as to his 

convictions for conspiracy to deal in firearms, distribution of marijuana, and possession of a firearm in furtherance of a drug trafficking crime. The government moved for summary affirmance, arguing that the court properly denied the motion as to those offenses 

because they were not covered offenses and any argument that the 

district court had discretion to reduce his sentence on non-covered 

offenses is foreclosed by United States v. Denson, 963 F.3d 1080 (11th 

Cir. 2020), and United States v. Files, 63 F.4th 920 (11th Cir. 2023), pet.

for cert. filed, No. 22-1239 (U.S. June 26, 2023). 

Summary disposition is appropriate either where time is of 

the essence, such as “situations where important public policy issues are involved or those where rights delayed are rights denied,” 

or where “the position of one of the parties is clearly right as a 

matter of law so that there can be no substantial question as to the 

outcome of the case, or where, as is more frequently the case, the 

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 

1162 (5th Cir. 1969). 

The Fair Sentencing Act, enacted on August 3, 2010, 

amended 21 U.S.C. § 841(b)(1) to reduce the sentencing disparity 

between crack and powder cocaine. Fair Sentencing Act; see Dorsey 

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23-11495 Opinion of the Court 3

v. United States, 567 U.S. 260, 268-69 (2012) (detailing the history that 

led to the enactment of the Fair Sentencing Act, including the Sentencing Commission’s criticisms that the disparity between crack 

and powder cocaine offenses was disproportional and reflected 

race-based differences). Specifically, § 2(a)(1) raised the quantity of 

crack cocaine necessary to trigger a 10-year mandatory minimum 

sentence from 50 to 280 grams, and § 2(a)(2) raised the quantity 

threshold to trigger a 5-year mandatory minimum from 5 grams to 

28 grams. Fair Sentencing Act § 2(a)(1)–(2); 21 U.S.C. 

§ 841(b)(1)(A)(iii), (B)(iii). These amendments were not made retroactive to defendants who were sentenced before the enactment 

of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377 

(11th Cir. 2012).

In 2018, Congress enacted the First Step Act, which made 

retroactive for “covered offenses” the statutory penalties enacted 

under the Fair Sentencing Act. See First Step Act § 404. Under 

§ 404(b) of the First Step Act, “[a] 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 . . . were in effect at the 

time the covered offense was committed.” Id. § 404(b). The statute 

defines “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). The First Step Act adds that “[n]o court shall 

entertain a motion” under § 404 for a sentence that “was previously 

imposed or previously reduced in accordance with” sections 2 and 

3 of the Fair Sentencing Act, or “if a previous motion made under 

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this section . . . was . . . denied after a complete review of the motion on the merits.” Id. § 404(c).

In Denson, we concluded, as our main holding, “that the First 

Step Act does not require district courts to hold a hearing with the 

defendant present before ruling on a defendant’s motion for a reduced sentence under the Act.” 963 F.3d at 1082. As an alternate 

and independent holding, we concluded that a sentencing modification under the First Step Act is not a critical stage in the proceedings under the two-part test in United States v. Brown, 879 F.3d 1231 

(11th Cir. 2018), contrary to Denson’s arguments on appeal. Id. at 

1088–89. We concluded that the First Step Act does not authorize 

a plenary resentencing and instead “is a limited remedy.” Id. at 

1089. In so concluding, we reasoned that a district court may “reduce a defendant’s sentence only on a covered offense and only as 

if sections 2 and 3 of the Fair Sentencing Act were in effect when 

he committed the covered offense.” Id. (quotation marks omitted). 

We also reasoned that a district court is not free to: (1) recalculate 

the defendant’s original Guidelines calculations unaffected by sections 2 and 3; (2) reduce the defendant’s sentence on the covered 

offense based on other changes in the law; or (3) reduce the defendant’s sentences on non-covered offenses. Id. We also referenced 

the idea that a § 404(b) motion was a § 3582(c)(1)(B) proceeding. 

Id. at 1088.

The Supreme Court held in Concepcion v. United States that 

sentencing courts may consider intervening changes of law or fact 

in adjudicating a First Step Act motion. 142 S. Ct. 2389, 2396 (2022). 

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The Supreme Court stated that, while courts must consider these 

arguments when raised by the parties, whether to reduce the defendant’s sentence remains within their sound discretion. Id. The 

Court explained that sentencing courts have historically had wide 

latitude to consider any information relevant to understanding a 

defendant’s individual circumstances, and “[n]othing in the text and 

structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district court’s sentencing discretion.” Id. at 2401. In so holding, the Supreme Court overruled our 

prior holding in Denson that a court cannot reduce a defendant’s 

sentence based on changes in the law beyond those mandated by 

the Fair Sentencing Act. Id. at 2398 n.2 (citing Denson, 963 F.3d at 

1089). 

In Files, we recently explained that Concepcion abrogated aspects of Denson regarding whether a court adjudicating a First Step 

Act motion could consider changes in law unrelated to those specified in the Fair Sentencing Act but that Concepcion did not abrogate 

Denson’s holding that a court could not reduce defendants’ sentences for non-covered offenses. 63 F.4th at 930–31. We also explained that the Supreme Court’s discussion in Concepcion pertained to the absence of limitations by Congress on how a district 

court exercises its discretion in reducing a defendant’s sentence, not 

its authority to do so in the first place. Id. at 931. We confirmed 

that a district court can consistently apply “Denson’s holding limiting the categories of sentences that can be reduced and Concepcion’s 

holding empowering courts to exercise broad discretion in imposing reduced sentences for those qualifying offenses.” Id. 

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Under the prior panel precedent rule, “a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme 

Court or this [C]ourt sitting en banc.” United States v. Dudley, 5 F.4th 

1249, 1265 (11th Cir. 2021) (quotation marks omitted). 

We thus conclude that summary affirmance is warranted 

here because the government’s position is correct as a matter of 

law. Groendyke Transp., 406 F.2d at 1162. Notably, Daniel does not 

dispute that the offenses are non-covered offenses. As such, Daniel’s arguments are foreclosed by this Court’s prior precedent in 

Denson and Files. Denson, 963 F.3d at 1088–89; Files, 63 F.4th at 930–

31; Dudley, 5 F.4th at 1265. Further, any argument that Concepcion

abrogated Denson is foreclosed by Files. Files, 63 F.4th at 930–31. 

Other than Concepcion, Daniel does not point to any case from this 

Court or the Supreme Court that abrogated Denson and Files. Dudley, 5 F.4th at 1265. 

Because the government’s position is correct as a matter of 

law, we GRANT the government’s motion for summary affirmance

and affirm the district’s order denying Daniel’s motion to reduce 

his sentence under § 404(b) of the First Step Act. Groendyke Transp., 

406 F.2d at 1162.

AFFIRMED.

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