[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13074

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

PINKNEY CLOWERS, III, 

a.k.a. Boo Boo,

a.k.a. DOG,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:92-cr-00082-TES-CHW-2

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2 Opinion of the Court 20-13074

____________________

Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

GRANT, Circuit Judge:

The First Step Act offers a meaningful benefit: the 

retroactive application of specified provisions of the Fair 

Sentencing Act. But that benefit is limited. The Act permits a 

district court to reduce an eligible defendant’s sentence “as if” the 

Fair Sentencing Act “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. It “does not permit a reduction when 

the Fair Sentencing Act could not have benefitted the movant.” 

United States v. Jones, 962 F.3d 1290, 1303 (11th Cir. 2020). If the 

defendant is already serving the statutory minimum sentence that 

would have applied under the Fair Sentencing Act, the First Step 

Act offers no relief. Id.

But how does the First Step Act court decide what that 

minimum sentence would have been? The district court 

recalculates the statutory sentencing range as if the Fair Sentencing 

Act’s changes—and only those changes—were in effect at the time 

the offense was committed. See First Step Act § 404(b); cf. 

Concepcion v. United States, 142 S. Ct. 2389, 2402 n.6 (2022) (under 

the First Step Act, a district court cannot “recalculate a movant’s 

benchmark Guidelines range in any way other than to reflect the 

retroactive application of the Fair Sentencing Act”). And as we 

have said, a district court must incorporate a previous drugUSCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 2 of 15
20-13074 Opinion of the Court 3

quantity finding “that could have been used to determine the 

movant’s statutory penalty at the time of sentencing” into its 

analysis when determining whether the Fair Sentencing Act would 

have benefitted the defendant. Jones, 962 F.3d at 1303. That 

includes findings made for purposes of calculating the defendant’s 

Sentencing Guidelines range.

Pinkney Clowers appeals the denial of his First Step Act 

motion to reduce his sentence. The district court considering 

Clowers’s motion correctly concluded that it was bound by the 

sentencing court’s drug-quantity finding when determining what 

his statutory penalties would have been under the Fair Sentencing 

Act. And because that drug quantity would still trigger a 

mandatory life sentence after the Fair Sentencing Act, the district 

court also correctly concluded that it could not reduce Clowers’s 

sentence under the First Step Act. 

I.

The “continuing criminal enterprise” statute targets 

organized drug trafficking by setting stiff sentences for the 

managers of criminal drug businesses. 21 U.S.C. § 848. The statute 

mandates a sentence of life imprisonment if the defendant was one 

of the “principal administrators, organizers, or leaders” of the 

enterprise and the offense involved “at least 300 times the quantity”

of a controlled substance listed in § 841(b)(1)(B) of the federal drugtrafficking statute. Id. § 848(b). So, for example, the leader of a 

gang engaged in drug trafficking might be sentenced to life in 

prison if he were convicted of conspiring to distribute a large 

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enough quantity of heroin or cocaine as part of the gang’s drug 

business. See id.; see also id. §§ 841(b)(1)(B)(i) (heroin), 

841(b)(1)(B)(ii)(II) (cocaine), 841(b)(1)(B)(iii) (“cocaine base” or 

crack cocaine).

Clowers was convicted of just such an offense. In 1993, a 

jury found him guilty of engaging in a continuing criminal 

enterprise by committing a series of felony drug crimes involving 

the distribution of crack cocaine—a substance listed in 

§ 841(b)(1)(B)—along with other offenses. Evidence introduced at 

his trial showed that Clowers and a codefendant founded and led 

an organization that sold crack cocaine in Macon, Georgia in the 

early 1990s. United States v. Boyd, 131 F.3d 951, 952 (11th Cir. 

1997). Clowers faced a possible mandatory life sentence based in 

part on the quantity of crack cocaine involved.

The jury made no drug-quantity finding. Clowers was tried, 

convicted, and sentenced before the Supreme Court clarified that 

any fact (other than a prior conviction) that increases the statutory 

minimum or maximum sentence must be treated as an element of 

the offense to be found by the jury beyond a reasonable doubt. 

Alleyne v. United States, 570 U.S. 99, 107–08 (2013); Apprendi v. 

New Jersey, 530 U.S. 466, 490 (2000). Following the usual practice 

at the time, the sentencing court made its own finding that 

Clowers’s offense involved more than 15 kilograms of crack

cocaine, which corresponded to the highest offense level under the 

Sentencing Guidelines. See U.S. Sentencing Guidelines

§§ 2D1.1(c)(1), 2D1.5(a)(1) (Nov. 1993) (yielding an offense level in 

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excess of 43). This was ten times the amount necessary to satisfy 

the then-existing drug-quantity element of the continuing criminal 

enterprise offense. See 21 U.S.C. §§ 841(b)(1)(B)(iii), 848(b)(2)(A)

(1988). Because Clowers was also found to be one of the “principal 

administrators, organizers, or leaders” of the crack-cocaine 

business, the statute mandated a life sentence. Id. § 848(b). The 

court sentenced Clowers to life in prison. 

Twenty-five years later—after having spent more of his life 

in prison than out of it, and by all accounts behaving as a model 

prisoner—Clowers filed a motion to reduce his sentence under the 

First Step Act. The district court concluded that although it would 

reduce the sentence if it were authorized to do so based on 

Clowers’s exemplary behavior during nearly three decades in 

prison, the text of the First Step Act did not give that option. 

Clowers now appeals.

II. 

In 2010, Congress enacted the Fair Sentencing Act to reduce 

the dramatic disparity in jail time for defendants whose crimes

involved powder cocaine and those whose crimes involved crack 

cocaine. See Dorsey v. United States, 567 U.S. 260, 268–69 (2012). 

The Act achieved this purpose by, among other things, amending 

federal drug-trafficking statutes to increase the quantity of crack 

cocaine required to trigger mandatory minimum sentences. Id. at 

269; Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 

Stat. 2372, 2372. But the Act applied only prospectively; it did not 

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provide relief for defendants who had been sentenced before its 

effective date. See Jones, 962 F.3d at 1297.

Apparently dissatisfied that earlier offenders were still 

subject to the same harsh penalties, Congress passed the First Step 

Act, which made the crack cocaine sentencing changes retroactive. 

Id. Under § 404 of the new Act, a district court that sentenced a 

defendant for a “covered offense” may “impose a reduced sentence 

as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 

111–220; 124 Stat. 2372) were in effect at the time the covered 

offense was committed.” First Step Act § 404(b). 

The statute 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.” Id. § 404(a). 

Those sections contain the quantity adjustments for minimum 

sentences put in place to reduce the disparity between crack and 

powder cocaine sentences. Fair Sentencing Act of 2010 §§ 2–3; 

Dorsey, 567 U.S. at 269. So if a defendant was sentenced before the 

effective date of the Fair Sentencing Act for an offense that includes

as an element the quantity of crack cocaine described in 

§ 841(b)(1)(B)(iii), his offense is a covered offense under the First 

Step Act. Jones, 962 F.3d at 1298.

But that does not mean that the district court can reduce the 

sentence of every defendant with a covered offense. As we 

explained in Jones, the fact that any sentence reduction must be 

made “as if” the Fair Sentencing Act were in effect at the time of 

the defendant’s offense means that no relief is available under the 

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First Step Act if the defendant “received the lowest statutory 

penalty that also would be available to him under the Fair 

Sentencing Act.” Id. at 1303. And in determining what the 

defendant’s statutory penalty would have been 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.1

III. 

The parties agree, as do we, that Clowers has a covered 

offense under the First Step Act. The jury found him guilty of 

engaging in a continuing criminal enterprise. The penalties for that 

crime incorporated the drug quantity in 21 U.S.C. 

§ 841(b)(1)(B)(iii). See 21 U.S.C. § 848(b)(2)(A) (1988). The Fair 

Sentencing Act increased the quantity of crack cocaine required 

under that subsection from 5 grams to 28 grams. Fair Sentencing 

Act § 2(a)(2). Clowers was thus sentenced for a “covered offense” 

because § 2 of the Fair Sentencing Act modified the statutory 

penalties for his offense. Jones, 962 F.3d at 1298.

But as we have said, having a covered offense is not always 

enough. The Fair Sentencing Act raised the quantity of crack 

cocaine required to trigger statutory minimum sentences; it did not 

remove the mandatory minimum penalties altogether. The First 

Step Act does not authorize a sentence reduction below the 

1 We recently reaffirmed our reasoning in Jones with respect to these limitations. See United States v. Jackson, 58 F.4th 1331, 1333 (11th Cir. 2023).

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statutory minimum sentence that would have applied if the Fair 

Sentencing Act had been in effect when the movant committed his 

offense. Nor does it change the legal significance that the 

sentencing court’s drug-quantity findings held at the time. 

Clowers’s case illustrates the point. Because he would 

receive the same mandatory life sentence even under the Fair 

Sentencing Act, the district court could not reduce his sentence 

under the First Step Act. To explain in more detail, if the Fair 

Sentencing Act had been in effect at the time of Clowers’s offense, 

the quantity of crack cocaine listed in § 841(b)(1)(B) would have

been 28 grams instead of 5 grams, and the quantity of crack cocaine 

required to trigger a mandatory life sentence for a continuing 

criminal enterprise offense would have been 8.4 kilograms instead 

of 1.5 kilograms. See 21 U.S.C. § 848(b)(2)(A) (mandating a life 

sentence for offenses involving “at least 300 times the quantity of a 

substance described in subsection 841(b)(1)(B)”). Either way, the 

sentencing court’s finding that Clowers’s offense involved more 

than 15 kilograms of crack cocaine would easily satisfy the quantity 

element of Clowers’s continuing criminal enterprise offense; the 

statute would still have required a life sentence. Because the 

sentencing judge would not have had any latitude to impose a 

lower sentence if the Fair Sentencing Act had existed in 1994, the 

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First Step Act does not authorize the district court to do so now.2

See Jones, 962 F.3d at 1303.

Clowers tries to get around our holding in Jones by 

creatively interpreting the language we used in that opinion. He 

argues that when we referred to a drug-quantity finding that “could 

have been used” at sentencing to determine the applicable 

statutory penalties, we really meant that district courts are bound 

only by a drug-quantity finding that was used for that purpose. Id. 

He contends that because the parties and the sentencing court 

discussed drug quantity at his sentencing only in relation to his 

Sentencing Guidelines range, the court’s finding that his offense 

involved more than 15 kilograms of crack cocaine was not used to 

determine his statutory penalties. Consequently, he argues, the 

district court was not bound by that finding when determining his 

2 Clowers fights the basic premise of this analysis. He argues that the district 

court should not have used the sentencing court’s drug-quantity finding to 

determine his statutory penalty under the Fair Sentencing Act because we 

now recognize that the Sixth Amendment requires such findings to be made 

by a jury. As Clowers acknowledges, we have rejected this argument before, 

and we reiterate that “the Constitution does not prohibit district courts, in 

deciding motions for reduced sentences under the First Step Act, from relying 

on earlier judge-found facts that triggered statutory penalties that the Fair 

Sentencing Act later modified.” Jones, 962 F.3d at 1303. We are, of course, 

bound by our prior panel decision in Jones “unless and until it is overruled or 

undermined to the point of abrogation by the Supreme Court or by this court 

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). 

We therefore reject without further discussion Clowers’s arguments that 

Jones was wrongly decided.

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statutory sentencing range under the Fair Sentencing Act. We 

reject this strained interpretation as inconsistent with the statutory 

text.

When we explained in Jones that the “as if” clause requires

district courts considering First Step Act motions to honor any 

drug-quantity finding that “could have been used to determine the 

movant’s statutory penalty at the time of sentencing,” we meant 

what we said. Id. If the jury—or the court, acting before 

Apprendi—made a drug-quantity finding that could have been 

used at the time of sentencing to determine the defendant’s 

statutory penalties, the district court must use the same quantity to 

decide what the defendant’s statutory penalties would have been if 

§ 2 of the Fair Sentencing Act had been in effect at the time of the 

offense. 

Our application of this principle to two of the defendants in 

Jones—Alfonso Allen and Warren Jackson—makes our meaning 

clear. Allen and Jackson each received a mandatory life sentence 

for a covered offense: conspiracy to possess with intent to 

distribute 50 grams or more of crack cocaine. Id. at 1294–95. Allen 

was charged in 2006; a jury found him guilty as charged and made 

a drug-quantity finding of 50 grams or more of crack cocaine for 

the drug conspiracy offense. Id. at 1294. The district court imposed 

a mandatory life sentence based on the jury’s drug-quantity finding 

and Allen’s two prior felony drug convictions. Id.; see 21 U.S.C. 

§ 841(b)(1)(A)(iii) (2006). 

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Years later, in a postconviction proceeding, the district court 

found that Allen had been responsible for selling more than 420 

grams of crack cocaine per week. See Jones, 962 F.3d at 1294–95. 

And several years after that, the court relied on that quantity 

finding (420 grams) to deny Allen’s First Step Act motion, 

concluding that the retroactive application of the Fair Sentencing 

Act did not benefit him because of the large quantity of crack 

cocaine involved in his offense. See id. 

On appeal, we explained that the district court was not 

bound by its earlier 420-gram finding during First Step Act 

proceedings because the district court’s findings in habeas “did not 

trigger the statutory penalty” for Allen. Id. at 1303. In other words, 

the larger drug-quantity finding could not have been used “to 

determine the movant’s statutory penalty at the time of 

sentencing.” Id. That is true—both because the finding was not 

made until years after Allen was sentenced, and because Allen’s 

sentencing took place after the Supreme Court clarified in 

Apprendi that such findings must be made by a jury beyond a 

reasonable doubt if they increase the penalty for a crime beyond 

the otherwise applicable statutory maximum. See id. at 1294–95;

Apprendi, 530 U.S. at 490.

To determine Allen’s new statutory sentencing range “as if” 

§ 2 of the Fair Sentencing Act “were in effect at the time the 

covered offense was committed,” we used the only drug-quantity 

finding that “could have been used” by the sentencing court to 

determine Allen’s statutory penalties—the jury’s finding that his 

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offense involved 50 grams or more of crack cocaine. Jones, 962 

F.3d at 1303–04. Under the Fair Sentencing Act, the statutory 

penalty for a drug-trafficking offense involving 50 grams of crack 

cocaine would have been 10 years to life in prison instead of the 

mandatory life sentence Allen received. Id. at 1304; compare 21 

U.S.C. § 841(b)(1)(A)(iii) (2006), with 21 U.S.C. § 841(b)(1)(A)(iii)–

(B)(iii) (2012). Allen, therefore, could have received a lower 

minimum sentence and was eligible for relief under the First Step 

Act. Jones, 962 F.3d at 1304. 

For Jackson, the story was different. Like Allen, Jackson was 

charged with possessing with intent to distribute 50 grams or more 

of crack cocaine. Id. at 1295. The jury found Jackson guilty as 

charged without making any more specific drug-quantity finding. 

Id. Jackson was subject to a mandatory life sentence because his

offense involved more than 50 grams of crack cocaine and he had 

three prior felony drug offenses. Id.; see also 21 U.S.C. 

§ 841(b)(1)(A)(iii) (1994). But Jackson’s sentencing court—unlike 

Allen’s—made a drug-quantity finding at the time of sentencing. It 

found that his offense involved 287 grams of crack cocaine. Jones, 

962 F.3d at 1295. 

Jackson later moved for a reduction of his life sentence 

under the First Step Act. Id. On appeal from the denial of that 

motion, we used the sentencing court’s drug-quantity finding—

which was above the updated threshold quantity of 280 grams

established in the Fair Sentencing Act—to determine that Jackson 

would have been subject to a mandatory life sentence even if the 

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Fair Sentencing Act had been in effect when he committed his 

offense.3 Id. at 1304. We also said that because Jackson would face 

the same mandatory minimum statutory penalty under the Fair 

Sentencing Act, the district court was not authorized to reduce his 

sentence under the First Step Act. Id.

Clowers is in the same boat as Jackson. At his sentencing 

proceeding, the sentencing court found that his offense involved 

more than 15 kilograms of crack cocaine, a finding that could have 

been—and in this case was—used to determine whether Clowers 

was subject to the mandatory life sentence under § 848(b). The 

district court was therefore bound by the sentencing court’s drugquantity finding when determining his new statutory penalties for 

purposes of his First Step Act motion.

Contrary to Clowers’s assertion, the focus at sentencing on 

his Sentencing Guidelines range does not indicate that the court’s 

drug-quantity finding was used only for Guidelines purposes. At 

3We note that the sentencing court’s drug-quantity finding was not needed to 

determine Jackson’s statutory penalties. His indictment charged a quantity of 

crack cocaine (more than 50 grams) that, when coupled with his prior offenses,

was sufficient (before the Fair Sentencing Act) to trigger the highest statutory 

penalty, and the jury found him guilty as charged. Jones, 962 F.3d at 1295. But 

according to the prevailing understanding of the law at the time, the court’s 

finding that Jackson’s offense involved 287 grams of crack cocaine “could have 

been used” to determine his statutory penalties at sentencing. Id. at 1303; see 

United States v. Sanchez, 269 F.3d 1250, 1266–67 & n.28 (11th Cir. 2001) (en

banc) (describing pre-Apprendi practice), abrogated by Alleyne, 570 U.S. at 

103.

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the time, the sentencing court generally was required to make 

factual findings relevant to various statutory sentence 

enhancements as well as to the applicable Guidelines range. 

Where both calculations required a drug-quantity finding, a single 

finding by the court could serve both purposes. See, e.g., Chapman 

v. United States, 500 U.S. 453, 455–56 (1991); United States v. 

Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001) (en banc), abrogated 

by Alleyne, 570 U.S. at 103. It appears that the parties focused on 

the 15-kilogram quantity of crack cocaine that triggered the highest 

Guidelines range because it was the largest quantity that would 

have had any impact on the court’s sentencing calculations.

We also reject Clowers’s characterization of the sentencing 

court’s finding that his offense involved more than 15 kilograms of 

crack cocaine as a legal finding that his offense involved enough 

drugs to trigger the highest Guidelines range, rather than a factual 

finding. The court’s drug-quantity finding had legal implications, 

of course, as such findings nearly always do. The same can be said 

of a jury verdict that includes a finding that the defendant’s offense 

involved a quantity of drugs above the statutory threshold. But the 

legal significance of the finding does not change its factual nature.

We conclude, therefore, that the district court correctly used 

the 15-kilogram finding to determine what the statutory penalty 

would have been for Clowers under the Fair Sentencing Act. And 

because this finding would have compelled the sentencing court to 

impose the same mandatory life sentence even if the Fair 

Sentencing Act had been in effect at the time, the district court 

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correctly concluded that it could not reduce Clowers’s sentence 

under the First Step Act. 

* * *

Congress enacted the Fair Sentencing Act to reduce 

disparities between prison sentences for future offenses involving

crack cocaine and powder cocaine. And in the First Step Act, 

Congress decided to extend the same reduction in sentencing 

disparities to past offenses. The language of that statute is 

straightforward—eligible crack offenders can now be resentenced 

“as if” the Fair Sentencing Act had already been in place during 

their original sentencing. 

What Congress did not do is offer a sentence reduction 

below the statutory minimum under the Fair Sentencing Act, or 

vacate drug-quantity findings that would have triggered that

minimum at the time of the movant’s offense. Though Congress 

could have chosen any number of ways to bring relief to crackcocaine offenders, we must stick with the one it chose. We 

therefore AFFIRM the district court’s judgment. 

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