[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 13893 Non

- Argument Calendar

________________________ D.C. Docket No. 1:08

- cr - 00014

- AW

- GRJ

- 2
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus BRANDON TERELL STEVENSON, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ (May 28, 2021) Before NEWSOM, BRASHER, and A NDERSON , Circuit Judges. PER CURIAM: Brandon Stevenson appeals the district court’s order denying his motion to reduce his sentence under Section 404(b) of the First Step Act of 2018. Pub. L. 115

-

USCA11 Case: 20-13893 Date Filed: 05/28/2021 Page: 1 of 52 391, § 404, 132 Stat. 5194, 5222 (2018). He argues that the district court erred in concluding that it did not have the authority to reduce his sentence because his multi

- drug conspiracy conviction was not a covered offense under Section 404(b). Additionally, he contests the district court’s alternative holding that , even if it had authority to reduce his sentence, it would not do so. We review de novo 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). We review the district court’s denial of an eligible movant’s request for abuse of discretion. Id. A district court abuses its discretion when it applies the incorrect legal standard, makes clearly erroneous factual findings, or commits a clear error of judgment. United States v . Harris , 989 F.3d 908, 912 (11th Cir. 2021) (citations omitted). Just over ten years ago, Congress reduce d the sentencing disparity between crack and powder cocaine offenses through the Fair Sentencing Act

. Pub. L. No. 111

- 220, § 404, 124 Stat. 2372, 237 2

– 73 (2010) ; see Dorsey v. United States , 567 U.S. 260, 268

– 69 (2012). S pecifically, S ection 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 nec essary to trigger a 5

- year mandatory minimum from 5 grams to 28 grams. Fair Sentencing Act § 2(a)(1)

– (2); see also 21

USCA11 Case: 20-13893 Date Filed: 05/28/2021 Page: 2 of 53 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). Th o se amendments did not apply retroactive ly

. United States v. Berry , 701 F.3d 374, 377 (11th Cir. 2012). The First Step Act changed that. It made th ose amended statutory penalties apply retroactively if a pre

- Fair

- Sentencing

- Act defendant had committed a covered offense. See First Step Act § 404. Under Section 404(b) o f 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

. at § 404(b). The sta tute 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. at § 404(a). The First Step Ac t further provides that “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” Id

. at § 404(c). In United States v. Taylor , 982 F.3d 1295 (11th Cir. 2020) , we held that “ the First Step Act’s defi nition of a ‘covered offense’ covers a multidrug conspiracy offense that includes both a crack

- cocaine element and another drug

- quantity element

. ” 982 F.3d at 1300. We then noted that Taylor’s specific offense was “conspiring to possess with intent to dist ribute at least 5 kilograms of powder cocaine and at least 50 grams of crack cocaine” and concluded that “his offense [was] a covered offense.” Id. at 1301.

USCA11 Case: 20-13893 Date Filed: 05/28/2021 Page: 3 of 54 Similarly, Stevenson was convicted of conspiring to possess with intent to distribute at least 5 ki lograms of powder cocaine and at least 50 grams of crack cocaine before the Fair Sentencing Act became effective. After Taylor , it is clear that Stevenson’s offense is a covered offense under Section 404(b) and that the district court erred in concluding otherwise. See Taylor , 982 F.3d at 1300

– 01. Even so, a district court is never required to reduce a defendant’s sentence under Section 404(b). Jones , 962 F.3d at 1304. It has “wide latitude” in deciding whether to exercise its discretion to reduce a sentence

. Id. The court may consider the 18 U.S.C. § 3553(a) sentencing factors, as well as any other information relevant to its dec ision, including “ its previous findings regarding the quantities of crack and powder cocaine involved in the conspiracy, and the fact that the powder cocaine element of [the defendant’s] offense still triggers the highest tier of statutory penalties.” Tayl or , 982 F.3d at 1302; see Jones , 962 F.3d at 1301, 1304. And if we can discern from the record that the district court would decline to exercise its discretion to award a sentence reduction , then remand would be futile and is not required

. See United State s v. Hersh , 297 F.3d 1233, 1250

– 54 (11th Cir. 2002). Here, the district court alternatively held that it would not reduce Stevenson’s sentence even if it had the authority to do so

. In explaining its alternative holding , the district court analyzed the 18 U.S.C. § 3553(a) factors. It noted Stevenson’s rehabilitative efforts but concluded that those efforts were insufficient to warrant a

USCA11 Case: 20-13893 Date Filed: 05/28/2021 Page: 4 of 55 reduction in light of other circumstances, such as Stevenson’s criminal history and the significant amount of drugs involved in the conspiracy. See Taylor , 982 F.3d at 1302; Jones , 962 F.3d at 1301, 1304. It also noted that the President had commuted Stevenson’s sentence from life imprisonment to 210 months, which would be the low

- end of his recommended Guidelines range if it were recalculated today. The district court did not abuse its discretion in declining to reduce Stevenson’s sentence. See Jones , 962 F.3d at 1304. T he district court did not apply the wrong legal standard , fail to follow proper procedure , or make a clear error of judgment

. See Diveroli v. United States , 803 F.3d 1258, 1262 (11th Cir. 2015)

. B ecause the district court provided a reasoned explanation for its decision , a remand for further consideration would be futile. See Hersh , 297 F.3d at 1250

– 54. AFFIRMED. USCA11 Case: 20-13893 Date Filed: 05/28/2021 Page: 5 of 5