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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11742
Non-Argument Calendar
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D.C. Docket No. 9:95-cr-08021-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS RANDOLF GLOVER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 6, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and ED CARNES, Circuit
Judges.
PER CURIAM:
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Thomas Glover, a federal prisoner serving a total 360-month sentence for
conspiracy to distribute crack cocaine, possession with intent to distribute crack
cocaine, and distribution of crack cocaine, 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, 132 Stat. 5194, § 404. Glover argues that the district court erred by
concluding that it lacked authority to grant him relief under that Act. Glover also
requests that we remand his case to a different judge. We agree that the district
court erred, but we see no reason to remand his case to a different judge.
I.
In 1995, Glover was charged in a four-count superseding indictment with:
(1) conspiracy to distribute a “detectable amount” of crack cocaine, in violation of
21 U.S.C. § 846; (2) possession with intent to distribute a “detectable amount” of
crack cocaine, in violation of § 841(a)(1); (3) distribution of a “detectable amount”
of crack cocaine, in violation of § 841(a)(1); and (4) manufacture of a “detectable
amount” of crack cocaine, in violation of § 841(a)(1). Before trial, the government
filed a notice of intent to rely on Glover’s prior felony drug conviction to seek
higher statutory penalties. See 21 U.S.C. § 851(a). A jury found Glover guilty of
counts one, two, and three, and not guilty of count four. The jury did not
determine the amount of crack cocaine involved in each offense.
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At sentencing, the district court found that Glover was responsible for 87.98
grams of crack cocaine. Each of his three convictions carried a statutory range of
20 years to life imprisonment because of that drug quantity and Glover’s prior
felony drug conviction. See 21 U.S.C. § 841(b)(1)(A)(iii) (1994). As a career
offender under the Guidelines, Glover’s guideline range was 360 months to life
imprisonment based on a total offense level of 37 and a criminal history category
of VI. The district court sentenced him to 360 months in prison on each count, to
be served concurrently.
In March 2019, Glover moved in the district court for a sentence reduction
pursuant to the First Step Act. The district court ultimately denied that motion,
finding that “reduction of [Glover’s] sentence is not authorized under” the First
Step Act because, even with retroactive application of that Act, Glover’s guideline
range would remain the same.
II.
We review “the denial of an eligible movant’s request for a reduced sentence
under the First Step Act” for an abuse of discretion. United States v. Jones,
962
F.3d 1290, 1296 (11th Cir. 2020).
The Fair Sentencing Act, enacted in 2010, amended 21 U.S.C. §§ 841(b)(1)
and 960(b) to reduce the existing 100-to-1 sentencing disparity between crack and
powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
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2372; see also
Jones, 962 F.3d at 1297. The Act increased the amount of crack
cocaine that triggers the statutory penalties under § 841(b). The amount of crack
cocaine that triggers the statutory penalty under § 841(b)(1)(B) was increased from
5 to 28 grams, and the amount of crack cocaine that triggers the statutory penalties
under § 841(b)(1)(A) was increased from 50 to 280 grams. Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372, § 2(a); 21 U.S.C. § 841(b)(1)(A)–(B).
These amendments reduced the disparity to 18-to-1.
Jones, 962 F.3d at 1297.
In 2018, Congress enacted the First Step Act, which makes the statutory
penalties enacted under the Fair Sentencing Act retroactive for covered offenses.
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Section 404 of
the First Step Act “granted district courts discretion to reduce the sentences of
crack-cocaine offenders in accordance with the amended penalties in the Fair
Sentencing Act.”
Jones, 962 F.3d at 1297. It “permits a district ‘court that
imposed a sentence for a covered offense’ to ‘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. (quoting First Step Act § 404(b)).
Since the district court ruled in this case, we have held that a First Step Act
movant has a covered offense within the meaning of § 404(b) “if his offense
triggered a statutory penalty that has since been modified by the Fair Sentencing
Act.”
Id. at 1298.
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To determine the offense for which the district court imposed a
sentence, district courts must consult the record, including the movant’s
charging document, the jury verdict or guilty plea, the sentencing
record, and the final judgment. From these sources, the district court
must determine whether the movant’s offense triggered the higher
penalties in section 841(b)(1)(A)(iii) or (B)(iii). If so, the movant
committed a covered offense.
Id. at 1300–01.
The district court sentenced Glover for the offenses of conspiracy to
distribute 50 grams or more of crack cocaine, possession with intent to distribute
50 grams or more of crack cocaine, and distribution of 50 grams or more of crack
cocaine. Glover’s indictment charged him with those offenses, and although the
jury did not make a drug-quantity finding, the district court found at sentencing a
drug quantity of 87.98 grams of crack cocaine. The statutory penalty for each of
Glover’s offenses at the time of sentencing was 20 years to life imprisonment
based on his drug quantity and prior felony drug conviction. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (1994). The Fair Sentencing Act modified the penalties for his
offenses to be 10 years to life imprisonment. See
id. § 841(b)(1)(B)(iii) (2012).
Glover has covered offenses under the First Step Act, and the district court erred in
concluding that the First Step Act did not authorize it to reduce his sentence.
Of course, just because the First Step Act authorizes the district court to
reduce Glover’s sentences, that does not mean it requires the district court to do so.
See
Jones, 962 F.3d at 1304. “District courts have wide latitude to determine
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whether and how to exercise their discretion in this context. In exercising their
discretion, they may consider all the relevant factors, including the statutory
sentencing factors, 18 U.S.C. § 3553(a).”
Id. And “a district court, of course,
could consider its previous findings of relevant conduct in deciding whether to
exercise its discretion to reduce an eligible movant’s sentence under section 404(b)
of the First Step Act.”
Id. at 1301.
We therefore VACATE the district court’s denial of Glover’s motion and
REMAND for it to determine whether to exercise its discretion to reduce his
sentence.1
1
We also deny Glover’s request to remand this case to a different judge. Glover provides
no good reason for reassigning his case, which “is an extraordinary order.” United States v.
Gupta,
572 F.3d 878, 891 (11th Cir. 2009).
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