USCA11 Case: 20-12229 Date Filed: 12/01/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12229
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRENTAVIUS ARLINE,
a.k.a. Trent Arline,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:09-cr-00026-WLS-TQL-1
____________________
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2 Opinion of the Court 20-12229
Before LUCK, LAGOA, and BLACK, Circuit Judges.
PER CURIAM:
Trentavius Arline, convicted in 2010 of possession with in-
tent to distribute crack cocaine within 1,000 feet of a public housing
facility in violation of
21 U.S.C. §§ 841(b)(1)(C) and 860(a), appeals
the denial of his motion for relief under the First Step Act § 404(b),
Pub. L. No. 115-391,
132 Stat. 5194, 5222. He contends the statu-
tory penalties set in § 860(a) are defined by reference to § 841(b) as
a whole, and thus offenses under § 860(a) are “covered offenses”
under the First Step Act § 404(b), irrespective of which subsection
of § 841(b) the offense incorporates. After review, 1 we affirm the
district court.
Under the pre-2010 version of
21 U.S.C. § 841(b)(1)(A), a vi-
olation under
21 U.S.C. § 841(a) carried a mandatory-minimum
penalty of 10 years’ imprisonment if the offense involved at least
50 grams of crack cocaine. And under the pre-2010 version of the
next provision, § 841(b)(1)(B), a § 841(a) violation carried a manda-
tory-minimum penalty of 5 years’ imprisonment if the offense in-
volved at least 5 grams of crack cocaine. By contrast, the pre-2010
version of § 841(b)(1)(C) imposed “a third penalty—possession
1We review de novo questions of statutory interpretation. United States v.
Segarra,
582 F.3d 1269, 1271 (11th Cir. 2009). Likewise, 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).
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20-12229 Opinion of the Court 3
with intent to distribute an unspecified amount of a schedule I or
II drug—that” had a maximum penalty of 20 years’ imprisonment,
“did not depend on drug quantity, and did not include a mandatory
minimum.” Terry v. United States,
141 S. Ct. 1858, 1859 (2021).
Under
21 U.S.C. § 860(a), individuals who violate § 841(a) within
1,000 feet of a public housing facility are subject to “twice the max-
imum punishment authorized by [§] 841(b)” and a mandatory min-
imum sentence of one year, unless the minimum sentence imposed
by § 841(b) is greater than one year.
In Terry, the Supreme Court held that § 841(b)(1)(C) of-
fenses were not “covered offenses” under the First Step Act § 404.
141 S. Ct. at 1860. The Court explained that whether an offense
was covered under the First Step Act turned on whether the Fair
Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, re-
duced the penalties corresponding to the particular elements of the
offense.
Id. at 1862. Thus, the court stated that § 841(a) and (b),
before 2010, created three distinct offenses: one for the knowing or
intentional possession with intent to distribute or distribution of at
least 50 grams of crack cocaine, § 841(a), (b)(1)(A)(iii); one for
knowing or intentional possession with intent to distribute or dis-
tribution at least 5 grams of crack cocaine, § 841(a), (b)(1)(B)(iii);
and one for knowing or intentional possession with intent to dis-
tribute or distribution of any amount of a schedule I or II drug,
§ 841(a), (b)(1)(C). Id. By increasing the “triggering quantities” for
each of the first two offenses, the Fair Sentencing Act “modified”
the penalties for those offenses, but it made no change to the
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4 Opinion of the Court 20-12229
penalties for the final offense, and thus that offense was not covered
by the First Step Act. Id. at 1863. The Supreme Court rejected the
defendant’s argument that the First Step Act applied to all viola-
tions of § 841(a) involving crack cocaine because the Fair Sentenc-
ing Act “changed the penalty scheme” for those offenses. Id. (quo-
tation marks omitted). Rather, it said that the language of the First
Step Act “directs our focus to the statutory penalties for the peti-
tioner’s offense, not the statute or statutory scheme.” Id. (empha-
sis in original).
The district court did not err in concluding Arline was not
eligible for relief under the First Step Act. To the extent Arline ar-
gues the penalty imposed by § 860(a) is defined by reference to the
provisions of § 841(b)(1)(A)(iii) and (b)(1)(B)(iii), that is incorrect.
The penalty for his offense was set by § 841(b)(1)(C), which cov-
ered offenses involving unspecified amounts of crack cocaine, sep-
arately from the 5-year and 10-year mandatory minimum amounts
set in § 841(b)(1)(A) and (b)(1)(B). See
21 U.S.C. § 841(b)(1)(C)
(governing crack cocaine offenses “except as provided in subpara-
graphs (A) [and] (B)”).
Although Terry did not address a situation where, as here, a
defendant was charged and sentenced under
21 U.S.C. § 860(a) for
committing a drug offense within 1,000 feet of housing owned by
a public housing authority, or any other property described
therein, we conclude this result is consistent with its reasoning.
Section 860(a) essentially establishes three discrete offenses which
have the elements of the offenses described in Terry, and the added
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20-12229 Opinion of the Court 5
element that they are committed within 1,000 feet of a public hous-
ing facility. Thus, just as in Terry, the two offenses defined by
§§ 841(a), (b)(1)(A)(iii), (b)(1)(B)(iii) and 860(a) were modified by
the Fair Sentencing Act, because the “triggering quantity” of crack
cocaine for each of those offenses was increased. See Terry, 141 S.
Ct. at 1862-63. Contrariwise, no element of the offense defined by
§ 841(a), (b)(1)(C), and 860(a) was modified, added, or eliminated
by the Fair Sentencing Act.
Arline seeks to avoid this extension of Terry’s logic by argu-
ing that § 860(a) “incorporates subsection 841(b) as a whole.” But
Terry establishes the fact that an element’s offenses are spread
across multiple sections or subsections of the U.S. Code is not rel-
evant. See Terry, 141 S. Ct. at 1862. The proper inquiry is whether
the offense—defined by its elements—was modified by the Fair
Sentencing Act. See id. Arline defines his offense as “distributing
crack cocaine within 1,000 feet of a specific location” and argues
the penalties for this offense were modified because § 860 refers to
the penalties “authorized by [§] 841(b),” which were themselves
modified. However, this argument ignores the crucial point that
the offense, even as Arline defines it, includes no quantity ele-
ment—the precise parts of § 841(b)(1)(A)(iii) and (b)(1)(B)(iii) that
were changed by the Fair Sentencing Act. Further, his indictment
did not include any specific drug amount, and although he agreed
to a drug amount of “at least 500 milligrams but less than 1 gram”
for sentencing, his sentence was not enhanced based on that.
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6 Opinion of the Court 20-12229
The only distinctions between the offense defined by
§ 841(a) and (b)(1)(C) and Arline’s offense are the addition of the
location element, the addition of a 1-year minimum, and the dou-
bling of the maximum penalty—none of which was affected by the
Fair Sentencing Act and none of which was important to the
Court’s decision in Terry. Thus, the analysis in Terry applies to
§ 860(a) exactly as it applied to § 841(b)(1)(C), which means that
Arline was not sentenced for a “covered offense” within the mean-
ing of the First Step Act § 404. For this reason, the district court
correctly held that Arline was ineligible for a sentence reduction.
Accordingly, we affirm.
AFFIRMED.
