[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14956

Non-Argument Calendar

________________________

D.C. Docket No. 6:01-cr-00118-ACC-GJK-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

VINCENT BROWN, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 2, 2020)

Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:

Vincent Brown appeals the district court’s order denying his motion for relief 

pursuant to § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 

and the district court’s denial of his motion for reconsideration. Brown has filed a 

Case: 19-14956 Date Filed: 10/02/2020 Page: 1 of 7
2

motion for summary reversal, and the government has responded that it agrees that 

Brown’s motion should be granted. After careful review, we grant Brown’s motion.

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).1

 

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier 

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quotations omitted). 

We review for abuse of discretion a district court’s ruling on an eligible 

movant’s request for a reduced sentence under the First Step Act. United States v. 

Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). However, where the issue presented 

involves a legal question, like a question of statutory interpretation, our review is de 

novo. Id.; United States v. Pringle, 350 F.3d 1172, 1178-79 (11th Cir. 2003). While 

district courts lack the inherent authority to modify a term of imprisonment unless, 

for example, a statute expressly permits them to do so, 18 U.S.C. § 3582(c)(1)(B), 

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as 

binding precedent all Fifth Circuit decisions issued before October 1, 1981.

Case: 19-14956 Date Filed: 10/02/2020 Page: 2 of 7
3

the First Step Act expressly allows them to reduce a previously imposed term of 

imprisonment in certain situations. Jones, 962 F.3d at 1297. 

In 2010, before the First Step Act, Congress enacted the Fair Sentencing Act, 

which amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparity 

between crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-

220, 124 Stat. 2372; see Dorsey v. United States, 567 U.S. 260, 268–69 (2012) 

(detailing the history that led to enactment of the Fair Sentencing Act, including the 

Sentencing Commission’s criticisms that the disparity between crack cocaine and 

powder cocaine offenses was disproportional and reflected race-based differences). 

Section 2 of the Fair Sentencing Act changed the quantity of crack cocaine necessary 

to trigger a 10-year mandatory minimum from 50 grams to 280 grams and the 

quantity necessary to trigger a 5-year mandatory minimum from 5 grams to 28 

grams. Fair Sentencing Act § 2(a)(1)–(2); see also 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 the 

statutory penalties for covered offenses 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 

Case: 19-14956 Date Filed: 10/02/2020 Page: 3 of 7
4

and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense 

was committed.” 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 statute makes clear that “[n]othing in this section shall be construed to 

require a court to reduce any sentence pursuant to this section.” Id. § 404(c).

In Jones, we considered the appeals of four federal prisoners whose motions 

for a reduction of sentence pursuant to § 404(b) were denied in the district courts. 

962 F.3d at 1293. We began by holding that a movant was convicted of a “covered 

offense” if he was convicted of a crack-cocaine offense that triggered the penalties 

in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. We instructed that when the district 

court is assessing whether an offense triggered the penalties in § 841(b)(1)(A)(iii) or 

(B)(iii) and, therefore, was a “covered offense,” the court must consult the record, 

including the movant’s charging document, the jury verdict or guilty plea, the 

sentencing record, and the final judgment. Id. at 1300–01. We rejected the 

government’s argument that, when conducting this inquiry, the district court should 

consider the actual quantity of crack cocaine involved in the movant’s violation. Id. 

at 1301. However, we recognized that a judge’s actual drug quantity finding remains 

relevant to the extent the judge’s finding triggered a higher statutory penalty. Id. at 

1302. Applying this inquiry to the four movants in Jones, we concluded that all four 

Case: 19-14956 Date Filed: 10/02/2020 Page: 4 of 7
5

were sentenced for covered offenses because they were sentenced for offenses with 

penalties modified by the Fair Sentencing Act. Id. at 1302–03. 

Next, we explained that a movant’s satisfaction of the “covered offense” 

requirement does not necessarily mean that the district court is authorized to reduce 

his sentence. Id. at 1303. Specifically, we held that when § 404(b) of the First Step 

Act provides that any reduction must be “as if sections 2 and 3 of the Fair Sentencing 

Act . . . were in effect at the time the covered offense was committed,” it imposes 

two limitations on the district court’s authority. Id. (quoting First Step Act § 404(b); 

emphasis added). One, the district court cannot reduce a sentence where the movant 

received the lowest statutory penalty that would also be available to him under the 

Fair Sentencing Act. Id. Two, in determining what a movant’s statutory penalty 

would have been under the Fair Sentencing Act, the district court is bound by a 

previous drug-quantity finding that was used to determine the movant’s statutory 

penalty at the time of sentencing. Id. Applying these limitations, we held that if a 

movant’s sentence necessarily would have remained the same had the Fair 

Sentencing Act been in effect -- that is, if his sentence was equal to the mandatory 

statutory minimum imposed by the Fair Sentencing Act for the quantity of crack 

cocaine that triggered his statutory penalty -- then the Fair Sentencing Act would not 

have benefited him, and the First Step Act does not authorize the district court to 

reduce his sentence. Id. at 1303.

Case: 19-14956 Date Filed: 10/02/2020 Page: 5 of 7
6

Using this framework, we affirmed the denials of two of the movants’ motions 

in Jones, and vacated and remanded as to the others because the district courts had 

authority to reduce their sentences under the First Step Act, but it was unclear 

whether the courts had recognized that authority. Id. at 1304–05. We held that it 

was error for a district court to conclude that a movant was ineligible based on (1) a 

higher drug quantity finding that was made for sentencing -- not statutory --

purposes, (2) a movant’s career-offender status, or (3) a movant’s sentence being at 

the bottom of the guideline range. Id. at 1305. Because it was ambiguous whether 

the district courts denied the motions for one of those improper reasons, we vacated 

and remanded for further consideration. Id. 

Finally, we noted that, while a district court may have the authority to reduce 

a sentence under § 404 of the First Step Act, it is not required to do so. Id. at 1304. 

We held that a district court has wide latitude to decide whether and how to exercise 

its discretion, and that it may consider the 18 U.S.C. § 3553(a) factors and a previous 

drug-quantity finding made for the purposes of relevant conduct. Id. at 1301, 1304.

Here, there is no substantial question that the district court erred in finding 

that Brown was not eligible for relief under the First Step Act. As the record reveals, 

the indictment charged that Brown’s offenses had involved “five grams or more” of 

crack cocaine, and the jury returned only a general guilty verdict with no drugquantity finding. In denying Brown’s motion, the district court relied on the amount 

Case: 19-14956 Date Filed: 10/02/2020 Page: 6 of 7
7

of crack cocaine determined for sentencing purposes, which was 44 grams of crack 

cocaine. However, after the district court issued its decision, we held in Jones that

the actual amount of drugs involved in the movant’s offense beyond the amount 

related to his statutory penalty is not relevant to whether he was convicted of a 

covered offense. 962 F.3d at 1301-02. Instead, in this case, the amount relevant to 

Brown’s offense was five grams or more of crack cocaine. Because the statutory 

penalty for this amount was modified by the Fair Sentencing Act, Brown was eligible 

for First Step Act relief. Id. at 1298, 1301-02. 

In short, there is no substantial question that the district court erred in 

concluding that Brown was not eligible for relief under § 404 of the First Step Act. 

Accordingly, we GRANT Brown’s motion for summary vacatur and remand so that 

the district court can consider whether to exercise its discretionary authority under 

the First Step Act to reduce Brown’s sentences. 

Case: 19-14956 Date Filed: 10/02/2020 Page: 7 of 7