[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-14111

Non-Argument Calendar

________________________

D.C. Docket No. 4:01-cr-00042-AW-MAF-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

JOSE MIKEL SMITH, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(September 13, 2021)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

USCA11 Case: 20-14111 Date Filed: 09/13/2021 Page: 1 of 4
2

Jose Smith appeals the district court’s denial of his motion for a sentence 

reduction, under the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 

5194, 5222 (2018). He argues on appeal that the district court erred in denying his 

motion because his conviction under 21 U.S.C. § 841(b)(1)(C) was for a “covered 

offense” for purposes of the First Step Act. But the Supreme Court recently 

foreclosed that argument in Terry v. United States, 141 S. Ct. 1858, 1862–1864 

(2021), and so we affirm.1

Congress promulgated the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 

124 Stat. 2372 (2010), to decrease the sentencing disparity between powder cocaine 

offenses and crack cocaine offenses. See Dorsey v. United States, 567 U.S. 260, 268–

69 (2012) (detailing the history that led to the 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). The Act decreased that disparity by increasing 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. See Fair Sentencing Act § 2(a)(1)–(2). Compare 21 U.S.C. 

§§ 841(b)(1)(A)(iii), (B)(iii) (2006) with §§ 841(b)(1)(A)(iii), (B)(iii) (2012) . Those

1 As we write for the parties, we discuss the facts and procedural history only as necessary to 

explain our decision. 

USCA11 Case: 20-14111 Date Filed: 09/13/2021 Page: 2 of 4
3

amendments were not made retroactive to defendants who had been sentenced 

before the enactment of the Fair Sentencing Act. See United States v. Berry, 701 

F.3d 374, 377 (11th Cir. 2012).

In 2018, Congress enacted the First Step Act with the goal of reforming the 

nation’s prison and sentencing systems. Under § 404(b) of the First Step Act, a court 

that imposed a sentence for a “covered offense” may reduce that sentence as if §§ 2 

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

committed. See First Step Act, § 404(b). The First Step Act 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.” § 404(a). 

In 2001, Mr. Smith was charged, pled guilty to, and was sentenced for—

among other things—distribution of crack cocaine in violation of 21 U.S.C. 

§ 841(b)(1)(C). In 2019, Mr. Smith filed a motion for a sentence reduction under the 

First Step Act, in which he argued that his § 841(b)(1)(C) conviction was for a 

“covered offense.” The district court disagreed, concluding instead that the First Step 

Act did not encompass convictions under § 841(b)(1)(C). It therefore held that Mr. 

Smith was ineligible for a sentence reduction and denied his motion. Mr. Smith 

appeals that denial and maintains that his § 841(b)(1)(C) conviction was for a 

“covered offense.”

USCA11 Case: 20-14111 Date Filed: 09/13/2021 Page: 3 of 4
4

Conducting plenary review, see United States v. Jones, 962 F.3d 1290, 1296 

(2020), we affirm the district court’s denial. In Terry, the Supreme Court expressly 

held that a conviction for a violation of § 841(b)(1)(C) is not for a “covered offense” 

under the First Step Act. See Terry, 141 S. Ct. at 1862–1864. Terry has therefore 

foreclosed Mr. Smith’s argument.

We affirm the district court’s order.

AFFIRMED.

USCA11 Case: 20-14111 Date Filed: 09/13/2021 Page: 4 of 4