UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JEFFREY SHAUN BAGBY, a/k/a Jeffrey Sjawn Bagby, a/k/a Je ffrey Shawn Bagby, Defendant - Appellant. No. 20-5036 (D.C. No. 4:10-CR -00134-CVE-1) (N.D. Oklahoma)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , MURPHY , and McHUGH , Circuit Judges.

________________ _________________ Defendant-Appellant Jeffrey Shaun Bagby br ings this appeal seeking reversal of the district court’s ruling that he is ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(B) and § 404(a) of the First Step Act of 2018. Because the government now concedes Mr. Bagby is eligib le for First Step Act relief, we reverse

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 24, 2020 Christopher M. Wolpert Clerk of Court2 the district court’s ruling and remand for th e district court to decide whether to exercise its discretion to g rant a sentencing reduction. BACKGROUND A. Procedural Background Before Mr . Bagby’s First Step Act Motion On September 7, 2010, a grand jury in the Northern District of Oklahoma charged Mr. Bagby with possessing 50 grams or more of a mixture or substance containing a detectable amount of cocai ne base—also known as “crack cocaine”— with the intent to distribute, in violation of 21 U.S. C. § 841(a)(1) and 841(b)(1)(A)(iii). This charge was for cond uct that occurred on or about April 16, 2010. On December 23, 2010, a jury c onvicted Mr. Bagby of this charge (and acquitted him of another charge not relevan t here). The special verdict form also instructed the jury to sp ecify the amount of cocaine base Mr. Bagby possessed; the jury found he possessed 342.88 grams. A defendant charged under § 841(b)(1)(A ) with two or more prior felony drug convictions faces mandatory life imprisonment, and Mr. Bagby had three such former convictions. Accordingly, on April 13, 2011, the district court sentenced Mr. Bagby to the required term of li fe imprisonment. On direct a ppeal, this court affirmed Mr. Bagby’s conviction and life sentence. United States v. Bagby , 696 F.3d 1074, 1089 (10th Cir. 2012).
B. Fair Sentencing Act of 2010 and First Step Act of 2018 On August 3, 2010, Congress passed th e Fair Sentencing Act of 2010. PL 111-220, 124 Stat. 2372. Secti on 2 of the Act increased th e quantities of cocaine base3 required to trigger the st atutory sentences set fort h under § 841(b)(1)(A) and (b)(1)(B). It raised from 50 grams to 280 grams the threshold quantity of cocaine base required to trigger mandatory life imprisonment under § 841(b)(1)(A), for defendants with two or more prior felony drug convictions. Id. at § 2, 124 Stat. at 2372. And it increased from 5 grams to 28 grams the threshold quantity of cocaine base required to trigger the penalties of § 841(b)(1)(B). Id. An offense involving at least 28 grams but fewer than 280 grams of cocaine base now carries a ten-year mandatory minimum and a maxi mum term of life imprisonmen t, if committed after a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(B). The Fair Sentencing Act of 2010 did not become effective until afte r Mr. Bagby committed the offense in question. In 2018, Congress enacted the First Step Act. Among other reforms, the First Step Act allows district courts 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.” Pub. L. No. 115-391, § 4 04(b), 132 Stat. 5194, 5222. It defines “covered offense” as “a violat ion of a Federal criminal st atute, 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.” Id. § 404(a), 132 Stat. at 5222. In other words, the First Step Act re nders retroactive certain se ntencing changes Congress had earlier enacted in the Fair Sentencing Act.4 C. Mr. Bagby’s First Step Act Motion On December 4, 2019, Mr. Bagby file d a motion for a sentence reduction under the First Step Act. He argued his offense of conviction—possession of 50 grams or more of cocaine base—would no longer qualify for the penalties set forth under § 841(b)(1)(A). Rather, after applying the Fair Sent encing Act, the controlling provision would be § 841(b)(1)(B), which a pplies to offenses for possession of cocaine base involving at least 28 gr ams but fewer than 280 grams. Under § 841(b)(1)(B), and taking into account his prior felony drug convictions, Mr. Bagby’s applicable statut ory sentencing range would be ten years to life, rather than the mandatory life imprisonment term he had received. Accordingly, he argued his conviction was a covered offense unde r the First Step Act because it was committed before August 3, 2010 and the st atutory penalties in § 841 were modified by section 2 of the Fa ir Sentencing Act. The government argued before the distri ct court that Mr. Bagby was ineligible for First Step Act relief. It argued the Fair Sentenci ng Act did not modify the penalties for Mr. Bagby’s violation because bot h before and after the Fair Sentencing Act went into effect, a “defendant, lik e [Mr.] Bagby, who po ssessed at least 280 grams of crack and had been previously co nvicted of two felony offenses, still faced an enhanced sentence of mandatory life imprisonment under § 841(b)(1)(A).” ROA
at 223. In short, Mr. Bagby focused on his offe nse of conviction—i. e., possession of 50 grams or more of cocaine base—and the government focused on the facts found5 by the jury—i.e., possession of 342.88 grams of cocaine base. The government argued in the alternative that even if Mr . Bagby were eligible for First Step Act relief, the district court should exercise its discretion to deny his motion.
D. District Court’s Ruling The district court agreed with the gov ernment that Mr. Bagby was ineligible for a sentence reduction under the First Step Act and thus did not reach the government’s alternative ar gument. The court reasoned “ it is clear that the drug quantity exceeds 280 grams and the First Step Act has no effect on [Mr. Bagby’s] sentence.” ROA at 249. The court elaborated: [Mr. Bagby] would have a colorable argument for resentencing if he had pled guilty to count one and admitted to an unspecified drug quantity of more than 50 grams of cocaine base . However, [Mr. Bagby] exercised his right to a jury trial and the ju ry was asked to determine the drug quantity. The jury decided that [Mr. Bagby] possessed 342.88 grams of cocaine base, and this amount was used to determine the relevant statutory mandatory mi nimum and maximum se ntences. This quantity exceeds the increased qua ntity of 280 grams provided in the Fair Sentencing Act, and the Court w ould still be required to impose a mandatory life sentence under § 841(b )(1)(A)(iii) even if [Mr. Bagby] were resentenced today. [Mr. Bagby’ s] motion for relief under the First Step Act wholly ignores the jury’s finding as [t o] drug quantity, and he has not made a threshold showing that he is entitled to relief under the First Step Act. Id. DISCUSSION As indicated above, the First Step Act au thorizes district c ourts to consider imposing a reduced sentence for a defenda nt who was convicted of a “covered offense,” which is defined as “a violation of a Federal crim inal statute, the statutory6 penalties for which were modified by Secti on 2 or 3 of the Fair Sentencing Act of 2010” and “that was committed before Augu st 3, 2010.” First Step Act of 2018 § 404, Pub. L. 115-391, 132 Stat. 5194, 5222 (2018). Before the district court, the government argued Mr. Bagby’ s offense is not “covered” under § 404 of the First Step Act because the ju ry found he possessed with inte nt to distribute more than 280 grams of cocaine base. The government ab andons this argument on appeal, however, stating “[e]very Court of Appeals to consid er this argument has re jected it.” Aple Br. at 9 (collecting cases). In other words, th e government now agrees with Mr. Bagby that eligibility for First Step Act relief is based on the statute under which a defendant was convicted, not the defendant’s actual conduct. The parties thus agree that Mr. Bagby’s offense of convicti on is “covered,” as that term is defined in the First Step Act, and that he is eligible for First Step Act relief. See Aple. Br. at 7 (“Because the [government] now agrees that the First Step Act applies to any defendant convic ted of an offense for which s ections 2 and 3 of the Fair Sentencing Act modified the stat utory penalties, this [c]ourt sh ould find that Mr. Bagby is eligible for First Step Act re lief, and remand to allow the di strict court to exercise its discretion to decide whether to grant that relief.”). In light of the government’s concession, we reverse the district court’s ruling concluding Mr. Bagby is ineligible for First Step Act relief and remand for the di strict court to decide whether to grant or deny Mr. Bagby’s request fo r a sentence reduction. On remand, the district court has “b road discretion to grant or deny the motion.” United States v. Mannie , 971 F.3d 1145, 1155 (10th Cir. 2020) (“[T]he7 [First Step Act] itself stat es that ‘[n]othing in this section shall be construed to require a court to reduce any sentence pursuan t to this section.’” (quoting First Step Act of 2018 § 404(c)) (alteration in orig inal)). Further, although the government concedes Mr. Bagby’s eligibil ity for First Step Act relie f does not turn on the actual quantity of cocaine base found by the ju ry, it does not concede relief should be granted, and the district court may take the actual quantity into account when evaluating Mr. Bagby’s motion. See United States v. Jones , 962 F.3d 1290, 1301 (11th Cir. 2020) (“Although we reject the argumen t that a movant’s covered offense is determined by the actual quantity of crack cocaine involved in his violation, . . .[t]he actual quantity of crack cocaine involved in a violation is a key factor for a sentence modification just as it is wh en a district court imposes a sentence.” (citing 18 U.S.C. § 3553(a)(1))). CONCLUSION For the reasons stated, we REVERSE the district cour t’s ruling finding Mr. Bagby ineligible for Firs t Step Act relief, and we REMAND to the district court for further proceedings c onsistent with this order and judgment. Entered for the Court
Carolyn B. McHugh Circuit Judge