[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10926 Non

- Argument Calendar

________________________ D.C. Docket No. 4:95

- cr - 00123

- WTM

- CLR

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus OSCAR LEE BROWN, JR., Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Georgia

________________________ (June 19, 2020) Before WILLIAM PRYOR, Chief Judge, B RANCH and FAY, Circuit Judges.
PER CURIAM: Oscar Brown Jr., a federal prisoner, petitions for rehearing. We grant the petition, vacate our earlier opinion, and substitute for it the following opinion.

Case: 19-10926 Date Filed: 06/19/2020 Page: 1 of 42 Brown appeals pro se the denial of his fourth motion to reduce his sentence. 18 U.S.C. § 3582(c). Brown requested a reduction based on the First Step Act of 2018, Pub. L. No. 115

- 391, § 404, 132 Stat. 5194, 5222. We vacate and remand. In 1995, a jury found Brown guilty of conspiring to distribute crack cocai ne and cocaine hydrochloride. 21 U.S.C. § 846. Brown had a base offense level of 38, United States Sentencing Guidelines Manual § 2D1.1 (1994), based on the undisputed statement in his presentence investigation report that he was responsible for at least 1 .5 kilograms of cocaine base. See United States v. Wade , 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes.”). After Brown received incre ases for being an organizer or leader of the conspiracy, U.S.S.G. § 3B1.1(a), for possessing a firearm, id. § 2D1.1(b)(1), and for obstruction of justice, id. § 3C1.1, he had a total offense level of 46. Brown faced a statutory sentencing range of 20 years to life imprisonment, 21 U.S.C. §§ 841(b)(1)(A), 851, and, with a criminal history category of IV, a guideline range of life imprisonment. The district court sentenced Brown to imprisonment for life. Brown made several attacks on his sentence. He argued o n direct appeal that his sentence violated the Sixth Amendment based on Apprendi v. New Jersey , 530 U.S. 466 (2000), which the Supreme Court decided while his appeal was pending.

Case: 19-10926 Date Filed: 06/19/2020 Page: 2 of 43 United States v. Brown , No. 95

- 9422, slip op. at 7

– 8 (11th Cir. Feb. 5, 2001) . We concluded “that the Apprendi

. . . error did not affect any of Brown’s substantial rights” when he never disputed “the quantity of crack cocaine attributable to him,” and, even if he had, “the failure to submit that issue to the jury . . . would be ha rmless beyond a reasonable doubt” because “[n]o reasonable jury could have found Brown guilty of the conspiracy offense, as to which the evidence was overwhelming, without also attributing responsibility to him for conspiring to distribute more than 50 gra ms of cocaine base.” Id. at 14

– 15. Later, Brown moved, without success, to vacate his conviction, 28 U.S.C. § 2255, and to reduce his sentence on three occasions, 18 U.S.C. § 3582(c). In 2019, Brown filed this fourth motion to reduce his sentence. Id. Brow n argued that his sentence to imprisonment for life was “valid but unfair and disparate” to the sentences imposed on his coconspirators. He also argued that he was entitled to a lesser sentence because no “specific drug amount . . . [was] charged” in his i ndictment and because of his post

- imprisonment rehabilitation. The district court summarily denied Brown’s motion on the ground he “[did] not qualify for a reduced sentence under the First Step Act because the Act does not alter his guideline range.” See 1 8 U.S.C. § 3582(c)(2). We review de novo whether a district court had the authority under the First Step Act to modify a term of imprisonment. United States v. Jones , No. 19

- 11505,

Case: 19-10926 Date Filed: 06/19/2020 Page: 3 of 44 2020 WL 3248113, at *3 (11th Cir. June 16, 2020). We recently held that th e First Step Act grants a district court the authority to modify a term of imprisonment if the movant was sentenced for a “covered offense,” which is an offense that “triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii)” of Title 21. Id. at *7. Because Brown was sentenced for a covered offense, the district court had the authority to modify his sentence in the exercise of its discretion. By concluding that Brown was ineligible for relief, the district court erred. See id. at *11.
We VACAT E the order denying Brown’s motion and REMAND for reconsideration in the light of our opinion in Jones

.

Case: 19-10926 Date Filed: 06/19/2020 Page: 4 of 4