USCA11 Case: 21-10642 Date Filed: 04/01/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10642
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEXTER GRIFFIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:09-cr-00030-WLS-TQL-2
____________________
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2 Opinion of the Court 21-10642
Before JILL PRYOR, BRANCH, and TJOFLAT, Circuit Judges
PER CURIAM:
This case concerns the power of courts to modify criminal
sentences. Dexter Griffin appeals the District Court’s denial of his
motion for a sentence reduction under Section 404 of the First Step
Act. 1 He first argues that his conviction for using a minor to dis-
tribute crack within 1,000 feet of a public housing facility,2 is a
“covered offense” under the First Step Act, so he was eligible for a
sentence reduction. He contends that the District Court abused its
discretion in denying his motion because it misunderstood his eli-
gibility for a reduction under the Act. He further argues that he
was not originally sentenced in accordance with the Fair Sentenc-
ing Act, 3 the “as if” clause in the First Step Act does not disqualify
him for relief, and his requested relief is not moot. We disagree
and affirm the judgment of the District Court below.
I.
In December 2009, Griffin and two others were charged in a
fifteen-count indictment. The indictment alleged several crimes
relating to the trafficking of crack cocaine. Griffin was charged
with six counts. Later that month, Griffin pled guilty to one count
1 Pub. L. No. 115-391, § 404,
132 Stat. 5194 (2018).
2
21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a), 860(c).
3 Pub. L. No. 111-220,
124 Stat. 2372 (2010).
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21-10642 Opinion of the Court 3
of using a minor to distribute crack near a public housing facility,
located in Pelham, Georgia, in exchange for the dismissal of the
other counts against him.
At the time of his sentencing, distributing crack within 1000
feet of public housing, while utilizing a minor, subjected Griffin to
a maximum of 60 years of imprisonment, as well as a one-year
mandatory minimum.
21 U.S.C. §§ 841(b)(1)(C), 860(a), (c). Grif-
fin and the Government stipulated that the weight of the crack was
less than three grams. The presentence report (“PSR”) gave Griffin
a base offense level of 26 under U.S.S.G. § 2D1.2. He received a 2-
level enhancement for obstruction of justice under U.S.S.G. §
3C1.1, making his total offense level 28. The PSR gave him a crim-
inal history category rating of VI, resulting in a Guidelines range of
140 months to 175 months, followed by at least 9 years of super-
vised release. The District Court adopted the PSR and sentenced
Griffin to 157 months imprisonment and 9 years of supervised re-
lease. Griffin has filed a number of motions to reduce or commute
his sentence, all of which the District Court has denied.
In early 2019, Griffin filed a pro se motion for a reduced sen-
tence under the First Step Act, requesting an 80-month term of im-
prisonment and asking for appointed counsel. The probation office
prepared a supplemental PSR, which reflected that the Guidelines
did not change, even though the probation office believed that the
First Step Act defined Griffin’s offense as a “covered offense.” At
most, then, the District Court “could reduce the sentence within
the range and could lower the term of supervised release.” The
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4 Opinion of the Court 21-10642
Government agreed that his conviction “may [have been] ‘covered’
under the First Step Act” but argued that he was ineligible for relief
because his coverage did not affect his Guidelines range.
The District Court appointed a federal public defender to
represent Griffin. Griffin, through his counsel, filed a supplemental
First Step Act motion in October 2019. Griffin requested a new
sentence of 118 months’ imprisonment and 6 years of supervised
release—which would end his prison stay because, at the time of
filing his motion, Griffin had served 118 months. 4 He argued that
he was entitled to a reduction because the offense was a “covered
offense” under the First Step Act, even though he acknowledged
that the First Step Act did not modify the penalties for his convic-
tion. The Government responded that the Fair Sentencing Act did
not modify the penalties given to Griffin under § 841(b)(1)(C), and
so his offense was not a covered offense. Even if the First Step Act
did apply, the Government argued that the First Step Act does not
allow plenary resentencing, but only resentencing “as if” the Fair
Sentencing Act was in effect at the time of Griffin’s original sen-
tencing. And because the Fair Sentencing Act did not reduce his
Guidelines range, the Government argued that was not entitled to
any resentencing.
The District Court denied Griffin’s motion. It determined
that it was bound by the express language of the First Step Act and
4 Griffin was released from prison in August 2020 and began serving his term
of supervised release, while his motion was pending at the District Court.
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21-10642 Opinion of the Court 5
caselaw from our court to conclude that Griffin’s offense was not a
covered offense under the First Step Act. Accordingly, the Court
determined that Griffin was ineligible for relief. It also determined
that his request for a reduction of his term of imprisonment was
moot because he began his term of supervised release in 2020. It
concluded that he was not entitled to a reduction in his supervised
release because, in addition to not qualifying, there was no change
to his Guidelines range or offense level, he was a career offender,
and his sentence of 157 months “remain[ed] appropriate.” Griffin
appealed the District Court’s denial of his motion.
II.
We review issues of statutory interpretation de novo, in-
cluding whether a statute authorizes a district court to modify a
term of imprisonment. United States v. Williams,
25 F.4th 1307,
1310 (11th Cir. 2022). We review for an abuse of discretion the
district court’s denial of an eligible defendant’s request for a re-
duced sentence under the First Step Act.
Id. A district court abuses
its discretion when it misunderstands its authority to modify a sen-
tence. United States v. Stevens,
997 F.3d 1307, 1317 (11th Cir.
2021).
III.
Finality is “essential to the operation of our criminal justice
system.” United States v. Bryant,
996 F.3d 1243 (11th Cir. 2021)
(quoting Teague v. Lane,
489 U.S. 288, 309,
109 S. Ct. 1060, 1074
(1989)). Accordingly, district courts lack inherent authority to
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6 Opinion of the Court 21-10642
modify a term of imprisonment but may do so to the extent that a
statute expressly permits.
18 U.S.C. § 3582(c)(1)(B). In some in-
stances, the First Step Act permits district courts to reduce a previ-
ously imposed term of imprisonment. United States v. Jones,
962 F.3d 1290, 1297 (11th Cir.), cert. denied,
141 S. Ct. 2635 (2021).
One such scenario involves the retroactive application of Fair Sen-
tencing Act of 2010.
It is important to understand, first, what the Fair Sentencing
Act did. The Fair Sentencing Act amended
21 U.S.C. §§ 841(b)(1)
and 960(b) to reduce the disparity between sentences for crack and
powder cocaine offenses, by modifying the quantity of crack-co-
caine required to trigger additional statutory penalties. Dorsey v.
United States,
567 U.S. 260, 268–69,
132 S. Ct. 2321, 2328–29 (2012);
Jones, 962 F.3d at 1298. Relevant here, Section 841 defines crimes
for possession of controlled substances with intent to distribute.
Subsection 841(a) makes it unlawful to knowingly or intentionally
possess any controlled substance with intent to distribute, whereas
subsection 841(b) lists the penalties that apply if the government
proves additional facts.
21 U.S.C. § 841(a), (b).
Section 841 defines three relevant distribution offenses in-
volving crack-cocaine—divided by the quantities of drug that the
government must prove under § 841(b). Terry v. United States,
141 S. Ct. 1858, 1862 (2021). The first offense is § 841(b)(1)(A)(iii),
which requires that a person (1) knowingly or intentionally possess
with intent to distribute, (2) crack, of (3) at least 280 grams. Id. The
second offense is § 841(b)(1)(B)(iii), which requires that a person (1)
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21-10642 Opinion of the Court 7
knowingly or intentionally possess with intent to distribute, (2)
crack, of (3) at least 28 grams. Id. The third offense is
§ 841(b)(1)(C), which requires that a person (1) knowingly or inten-
tionally possess with intent to distribute, (2) some unspecified
amount of a Schedule I or II drug (which includes crack). Id.; see
21 U.S.C. § 812, Sched. II(a)(4) (listing crack-cocaine as a Schedule
II drug). 5 The Fair Sentencing Act changed the triggering mecha-
nism for the penalties for the first two offenses—by increasing the
quantity of crack necessary to trigger the penalties of those subsec-
tions. It raised the amount to trigger the first offense,
§ 841(b)(1)(A)(iii), from 50 grams to 280 grams of crack, and the
amount to trigger the second offense, § 841(b)(1)(B)(iii), from 5
grams to 28 grams of crack. But the Fair Sentencing Act did not
change the third offense, § 841(b)(1)(C), because there was never a
quantity threshold to begin with. Terry, 141 S. Ct. at 1862.
The Supreme Court, though, held that the Fair Sentencing
Act did not apply to sentencing proceedings for criminal conduct
that predated the Act. Dorsey,
567 U.S. at 280–81,
132 S. Ct. at
2335. To fix this, Congress created the First Step Act to retroac-
tively apply the statutory penalties for “covered offenses” under
the Fair Sentencing Act. See First Step Act § 404(a). Section 404 of
the First Step Act states,
5 Because Griffin stipulated that he possessed less than three grams of crack,
his conviction falls under the third type of offense, § 841(b)(1)(C).
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8 Opinion of the Court 21-10642
(a) DEFINITION OF COVERED OFFENSE.—In this
section, the term ‘‘covered offense’’ means a violation
of a Federal criminal statute, the statutory penalties
for which were modified by section 2 or 3 of the Fair
Sentencing Act of 2010 (Public Law 111–220;
124 Stat.
2372), that was committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.—
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 of 2010 (Public Law 111–
220;
124 Stat. 2372) were in effect at the time the cov-
ered offense was committed.
§ 404. So, a sentencing court may impose a retroactive Fair Sen-
tencing Act sentence—“as if” the Fair Sentencing Act was in effect
at the time of the movant’s sentencing—if the defendant was con-
victed of a “covered offense.” § 404(b). A movant’s offense is a
“covered offense” if he was convicted of a crack cocaine offense
whose penalties were modified by “section two or three of the Fair
Sentencing Act.” Id. § 404(a); Jones, 962 F.3d at 1298, 1301. As
noted above, the Fair Sentencing Act only modified the first two
crack offenses, § 841(b)(1)(A)(iii) and § 841(b)(1)(B)(iii), but did not
modify § 841(b)(1)(C). Terry, 141 S. Ct. at 1862. Accordingly, the
First Step Act does not apply to the third crack offense,
§ 841(b)(1)(C).
In deciding whether a movant’s offense is covered, the dis-
trict court “must consult the record, including the movant’s charg-
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21-10642 Opinion of the Court 9
ing document, the jury verdict or guilty plea, the sentencing rec-
ord, and the final judgment.” Jones, 962 F.3d at 1300–01. The First
Step Act does not authorize a district court to conduct a plenary or
de novo resentencing in which it reconsiders Sentencing Guide-
lines calculations unaffected by Sections 2 and 3 of the Fair Sentenc-
ing Act or to change the defendant’s sentences on counts that are
not covered offenses. United States v. Denson,
963 F.3d 1080, 1089
(11th Cir. 2020).
Finally, earlier this year, we explicitly held in Williams that
§ 841(b)(1)(C) is not a covered offense—addressing very similar ar-
guments to the ones made here. In Williams, the defendant was
convicted of selling crack-cocaine within 1,000 feet of a “public
housing facility and school” and given an enhanced penalty under
§ 860(a). 25 F.4th at 1308–09. The defendant argued that the Fair
Sentencing Act modified his offense because § 860(a) references
and incorporates § 841(b) in its entirety, and (as noted above) there
are some subsections of § 841(b) that were modified by the Fair
Sentencing Act. 6 Id. at 1310, 1312. However, we held that the dis-
trict court did not err in determining that the defendant’s convic-
tion was not a covered offense because the Fair Sentencing Act did
6 Section 860(a) states, in part, that a person who “violates section 841(a)(1)”
by possessing a controlled substance with intent to distribute within 1000 feet
of a “public housing” facility is “subject to (1) twice the maximum punishment
authorized by section 841(b);” and “(2) at least twice any term of supervised
release authorized by section 841(b) of this title for a first offense.”
21 U.S.C.
§ 860(a)
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10 Opinion of the Court 21-10642
not alter the penalties for his specific offense, which were set by
§ 841(b)(1)(C). Id. at 1312. It did not matter that § 860(a) referred
to § 841(b) generally. Id. We also stated that the Supreme Court’s
reasoning in Terry supported this conclusion. 7 Id. Although it did
not discuss § 860, the Court in Terry concluded that “[t]he Fair Sen-
tencing Act did not modify the statutory penalties” of “petitioner’s
offense” under § 841(b)(1)(C), and so it was not a covered offense.
Terry, 141 S. Ct. at 1862–63. We stated that Terry shows that what
matters is whether the Fair Sentencing Act modified the “modified
the penalties for the particular elements of the [defendant’s] of-
fense.” Williams, 25 F.4th at 1311. Because the holding that the
defendant’s conviction was not a covered offense was dispositive,
we did not reach the defendant’s argument regarding his eligibility
for relief under the First Step Act’s “as if” clause. Id. at 1312.
IV.
On appeal, Griffin argues that the District Court was wrong.
He argues first that the Fair Sentencing Act modified the statutory
penalties under §§ 841, and 860(a) and (c), though he acknowledges
that the Fair Sentencing Act did not “change the penalties appliable
7 Under the prior precedent rule, we are bound to follow a prior binding prec-
edent unless we overrule it en banc or the Supreme Court overrules it. United
States v. White,
837 F.3d 1225, 1228 (11th Cir. 2016). The prior panel prece-
dent rule applies even if the prior precedent is arguably flawed. United States
v. Golden,
854 F.3d 1256, 1257 (11th Cir. 2017). Accordingly, we must follow
Williams.
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21-10642 Opinion of the Court 11
to Mr. Griffin’s specific conduct.” He also argues that he is not dis-
qualified from a reduction under the First Step Act, even though
the Act states that resentencing may only take place “as if” the Fair
Sentencing Act was in effect at the time the “covered offense was
committed.”
However, under our binding precedent in Williams, Griffin
is ineligible for a sentence reduction under § 404 of the First Step
Act. Williams concluded that a conviction under §§ 841(b)(1)(C)
and 860(a) was not covered. Id. The reference in § 860(a) to §
841(b)(1) writ large does not turn his offense—which was under §
841(b)(1)(C)—into a covered one. Id. at 1311. And because the
covered offense issue is dispositive of any relief under the First Step
Act, and because he does not seek any other form of relief, we need
not address his other contentions. Accordingly, the order of the
District Court is
AFFIRMED.
