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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13728
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00003-DHB-BKE-16
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHIN WHITE,
a.k.a. Step,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
________________________
(July 24, 2020)
Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
Stephin White, a federal prisoner proceeding pro se, 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, 132 Stat. 5194, 5222 (“First Step Act”), after it found
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that the First Step Act would not affect his sentence. On appeal, White argues that:
(1) the district court erred by not reducing his sentence under the First Step Act,
which violated his constitutional rights to due process; and (2) among other things,
his other constitutional rights were violated, his counsel was ineffective, and the
court erred in computing the drug-quantity amount. After careful review, we affirm.
We review a district court’s authority to modify a sentence de novo. United
States v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020). A district court lacks the
inherent authority to modify a term of imprisonment.
Id. (citing 18 U.S.C. §
3582(c)). But it may do so to the extent that a statute expressly permits.
Id. (citing
18 U.S.C. § 3582(c)(1)(B)).
In addition, under § 3582(c)(2), where a defendant’s term of imprisonment
was based on a guideline range “that has subsequently been lowered by the
Sentencing Commission,” a district court has the discretion to reduce the sentence if
that kind of reduction is consistent with applicable policy statements of the
Guidelines. 18 U.S.C. § 3582(c)(2). The applicable policy statement, found in
U.S.S.G. § 1B1.10, lists those guideline amendments that may apply retroactively to
reduce a sentence. U.S.S.G. § 1B1.10. Only amendments listed in Section 1B1.10
that have the effect of lowering the sentencing range upon which a sentence was
based may be considered for reduction of a sentence under Section 3582(c)(2).
Id.
§ 1B1.10(a)(2); United States v. Armstrong,
347 F.3d 905, 909 (11th Cir. 2003).
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Section 3582(c) does not grant the district court jurisdiction to consider extraneous
resentencing issues, including challenges to the constitutionality of a sentence,
which a claimant must instead present as a collateral attack on his sentence under §
2255. United States v. Bravo,
203 F.3d 778, 781-82 (11th Cir. 2000) (holding that
§ 3582(c)(2) “does not constitute a de novo resentencing” and “all original
sentencing determinations remain unchanged with the sole exception of the
guideline range that has been amended since the original sentencing”).
First, we are unpersuaded by White’s argument that the district court erred in
denying his motion for sentence reduction under § 404 of the First Step Act. The
basis for his argument begins with the Fair Sentencing Act, enacted on August 3,
2010, 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 unjustified, 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
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from 5 grams to 28 grams. Fair Sentencing Act of 2010, Pub. L. No. 111 220, 124
Stat. 2372, § 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).
Notably, however, these amendments were not made retroactive to defendants
who were sentenced prior to enactment of the Fair Sentencing Act. United States v.
Berry,
701 F.3d 374, 377 (11th Cir. 2012); see also
Dorsey, 567 U.S. at 281 (holding
that the Fair Sentencing Act applied to defendants who committed a crack cocaine
offense before August 3, 2010, but were sentenced after the Act’s effective date).
Further, the Fair Sentencing Act did not expressly make any changes to §
841(b)(1)(C), which provides for a term of imprisonment of not more than 20 years
for cases involving crack cocaine that do not fall within § 841(b)(1)(A) or (B). Fair
Sentencing Act of 2010 § 2(a); 21 U.S.C. § 841(b)(1)(C).
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 of 2018, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Under § 404(b)
of the 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. § 404(b). 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 First Step Act further provides
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that “[n]othing in this section shall be construed to require a court to reduce any
sentence pursuant to this section,” and it precludes a court from entertaining a motion
for reduction of sentence if “the sentence was previously imposed . . . in accordance
with” the Fair Sentencing Act’s reduced statutory penalties.
Id. § 404(c).
Here, the district court did not err in denying White’s motion for a sentence
reduction.1 While the First Step Act expressly permits district courts to reduce a
previously imposed term of imprisonment, see
Jones, 962 F.3d at 1297, White did
not commit a “covered offense” within the meaning of § 404(a) of the First Step Act
and, thus, was ineligible for relief. The offense for which he was convicted occurred
between August 2011 and March 2012, when he conspired to sell more than 280
grams of crack cocaine. Because he did not commit this offense before August 3,
2010, it was not a “covered offense” within § 404(a)’s definition. See First Step Act
of 2018 § 404(a). Further, White was sentenced in April 2013, so he already
received the benefit of the Fair Sentencing Act’s reduced penalties for crack cocaine.
See Fair Sentencing Act of 2010 § 2. Accordingly, we affirm as to this issue.
White also raises a variety of additional arguments, but we are unable to
consider them at this stage of the proceedings. All of his remaining claims --
1
We note that even though White filed his notice of appeal more than 14 days after the district
court entered the relevant order, outside the time limit proscribed by Federal Rule of Appellate
Procedure 4, that is inconsequential because the government does not dispute timeliness. See
United States v. Lopez,
562 F.3d 1309, 1313-14 (11th Cir. 2009) (holding that because the time
limits proscribed in the Federal Rules of Appellate Procedure are not jurisdictional in a criminal
case, an appeal may proceed if the government does not dispute the timeliness of the appeal).
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including his claims alleging ineffective assistance of counsel, various other
constitutional violations, the invalidity of his plea agreement and error in the district
court’s drug-quantity computation -- amount to “extraneous resentencing issues”
that are not properly before us at this time. See
Bravo, 203 F.3d at 781-82; see also
Massaro v. United States,
538 U.S. 500, 504-05 (2003) (noting how ineffective-of-
assistance claims by federal prisoners should be presented in a 28 U.S.C. § 2255
proceeding). Accordingly, we will not consider these arguments, and affirm as to
his remaining claims as well.
AFFIRMED.
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