[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13386

Non-Argument Calendar

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D.C. Docket No. 1:03-cr-21012-CMA-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

MICHAEL A. SIMMONS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 26, 2021)

Before JILL PRYOR, BRASHER, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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Michael Simmons appeals the district court’s denial of his motion for a 

reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. 115-391, 

132 Stat. 5194 (“First Step Act”). On appeal, Simmons contends that his 

conviction under 21 U.S.C. § 841(b)(1)(C) is a “covered offense” for purposes of 

the First Step Act, meaning that the district court had authority to reduce his 

sentence. While this case was pending on appeal, however, the Supreme Court 

issued an opinion that forecloses his appellate arguments. We therefore affirm the 

district court’s denial of First Step Act relief.

“We review de novo questions of statutory interpretation and whether a 

district court had the authority to modify a term of imprisonment.” United States 

v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020) (citations 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.

District courts lack the inherent authority to modify a term of imprisonment 

but may do so to the extent that a statute expressly permits. 18 U.S.C. 

§ 3582(c)(1)(B). The First Step Act, which makes certain portions of the Fair 

Sentencing Act retroactive, expressly permits district courts to reduce a previously 

imposed term of imprisonment. Jones, 962 F.3d at 1297.

The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C. 

§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between crack and 

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powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 

(“Fair Sentencing Act”); Dorsey v. United States, 567 U.S. 260, 268–69 (2012). 

Specifically, as to § 841(b)(1), § 2(a)(1) of the Fair Sentencing Act 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). The Fair Sentencing Act 

similarly increased the quantity threshold to trigger 10-year and 5-year mandatory 

minimum sentences under 21 U.S.C. § 960(b). Fair Sentencing Act § 2(b); 21 

U.S.C. § 960(b)(1)(C), (2)(C). 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 the Fair 

Sentencing Act’s statutory penalties retroactive for “covered offenses.” 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 

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before August 3, 2010.” Id. § 404(a). The First Step Act further states that 

“[n]othing in this section shall be construed to require a court to reduce any 

sentence pursuant to this section.” Id. § 404(c).

The Supreme Court recently rejected the argument that Simmons makes 

here, specifically, that a conviction under 21 U.S.C. § 841(b)(1)(C) is a “covered 

offense” entitling a defendant to seek a sentencing reduction under the First Step 

Act. Terry v. United States, No. 20-5904, manuscript op. at 7–8 (U.S. June 14, 

2021). In Terry, the Court noted that a violation of federal criminal law was not a 

“covered offense” under the First Step Act unless certain provisions of the Fair 

Sentencing Act had modified the statutory penalties for such a violation. Id. at 5. 

Because § 2(a) of the Fair Sentencing Act had modified the statutory penalties only 

for § 841(b)(1)(A) and (B), while the penalties for subsection (C) remained the 

same, the Court concluded that a violation of subsection (C) did not qualify as a 

“covered offense.” Id. at 5–7. Accordingly, the Court held that a defendant 

convicted under § 841(b)(1)(C) was ineligible for a First Step Act sentence 

reduction. Id. at 5, 8. 

Here, the district court did not err in concluding that Simmons was ineligible 

for a sentence reduction under the First Step Act. As Terry explained, Simmons’s

conviction under 21 U.S.C. § 841(b)(1)(C) did not qualify as a “covered offense.” 

Thus, Simmons was ineligible for a sentence reduction. Given that the district 

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court lacked authority to reduce Simmons’s sentence, we need not reach his 

argument that the district court abused its discretion in declining to award a 

downward variance.

Because the district court did not err in concluding that Simmons was 

ineligible for First Step Act relief, we affirm the court’s order denying his motion 

for a sentence reduction.

AFFIRMED.

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