USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13413
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY FOUNTAIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:02-cr-00252-CG-C-1
____________________
USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 2 of 6
2 Opinion of the Court 21-13413
Before WILLIAM PRYOR, Chief Judge, NEWSOM and
BRASHER, Circuit Judges.
PER CURIAM:
Terry Fountain appeals pro se the denial of his motion for a
sentence reduction under section 404 of the First Step Act of 2018.
Pub. L. No. 115-391, § 404(b),
132 Stat. 5194, 5222. We affirm.
In 2003, a jury convicted Fountain of conspiring to possess
and of possessing crack cocaine with intent to distribute.
21 U.S.C.
§§ 846, 841(a)(1). Fountain’s presentence investigation report at-
tributed 1.5 kilograms of cocaine to Fountain and, although he ob-
jected to the drug amount, he withdrew that objection at sentenc-
ing. The presentence report also provided a criminal history score
of VI based on Fountain’s prior convictions for possessing cocaine,
manslaughter, possessing marijuana with intent to distribute, and
third-degree assault. Based on the drug amount and Fountain’s role
as a manager or supervisor, he had a total offense level of 41 and a
sentencing range of 360 months to life imprisonment. The district
court sentenced Fountain to concurrent sentences of 360 months
of imprisonment. Fountain appealed, and we affirmed. United
States v. Fountain, 99 F. App’x 881 (11th Cir. 2004).
In 2021, Fountain moved to reduce his sentence with the as-
sistance of counsel. Fountain argued that the Fair Sentencing Act
of 2010, Pub. L. No. 111-220,
124 Stat. 2372, had lowered his sen-
tencing range of 10 years to life imprisonment to a statutory
USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 3 of 6
21-13413 Opinion of the Court 3
maximum term of 20 years of imprisonment. The government op-
posed Fountain’s motion.
The district court found that Fountain’s drug crime was a
“covered offense” under the First Step Act but denied him sentenc-
ing relief. The district court ruled that Fountain was “not due a re-
duction in sentence” “[b]ecause [he] was accountable for an
amount of drugs that exceeds Section 841(b)(1)(A)’s current thresh-
old quantity” and he “remain[ed] subject to the same statutory sen-
tence of ten years to life imprisonment.” Alternatively, the district
court was “not compelled to lower Fountain’s sentence” because it
fell “within both his statutory penalty range and the sentencing
guidelines range” and was reasonable “based on the factors set
forth in
18 U.S.C. § 3553(a).” The district court “considered . . .
[Fountain’s] family history,” “the relevant portions of the docket
including the presentence investigation report,” his “history of
drug abuse and distributing drugs,” his pattern of “criminal of-
fenses over the course of several years [being] disturbed only by his
multiple incarcerations,” the “fact [he] was on probation when he
committed the [drug] offenses,” and “the quantity of drugs in-
volved in [his] offense.” The district court also considered “Foun-
tain’s conduct while incarcerated, including his completion of nu-
merous education and self-rehabilitation courses and his work per-
formance” and his “letters of support.”
We review whether the district court had the authority to
reduce Fountain’s sentence under the First Step Act de novo.
United States v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020). We
USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 4 of 6
4 Opinion of the Court 21-13413
review the denial of Fountain’s request for a reduced sentence for
abuse of discretion.
Id. “A district court abuses its discretion if it
applies an incorrect legal standard, applies the law in an unreason-
able or incorrect manner, follows improper procedures in making
a determination, or makes findings of fact that are clearly errone-
ous.” Diveroli v. United States,
803 F.3d 1258, 1262 (11th Cir. 2015)
(quoting Winthrop–Redin v. United States,
767 F.3d 1210, 1215
(11th Cir. 2014)).
The First Step Act gives a district court discretion to reduce
the sentence of a defendant convicted on or before August 3, 2010,
of a drug offense for which the “statutory penalties . . . were mod-
ified by section 2 . . . of the Fair Sentencing Act of 2010.”
132 Stat.
5194, § 404(a), (b). The First Step Act makes section 2 of the Fair
Sentencing Act retroactive, which increases the quantity of crack
cocaine necessary to impose a mandatory minimum sentence for
distributing drugs,
21 U.S.C. § 841(b)(1)(A), from 50 grams to 280
grams, Pub. L. 111-220, § 8,
124 Stat. 2372 (2010).
132 Stat. 5194,
§ 404(b). If the defendant is eligible for relief under section 2 of the
Fair Sentencing Act and is not otherwise excluded from relief for
reasons specified in the First Step Act, the district court may, but is
not required to, “impose a reduced sentence as if . . . the Fair Sen-
tencing Act . . . w[as] in effect at the time the [drug] offense was
committed.” Id. § 404(b), (c). To determine “what a movant’s stat-
utory penalty would be under the Fair Sentencing Act, the district
court is bound by [the] previous finding of drug quantity that [was]
USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 5 of 6
21-13413 Opinion of the Court 5
used to determine the movant’s statutory penalty at the time of
sentencing.” Jones, 962 F.3d at 1303.
The district court erred in ruling that Fountain was ineligible
for a sentence reduction under the First Step Act. A jury found
Fountain guilty of crimes involving crack cocaine,
21 U.S.C. §§ 846,
841(a)(1), and the district court calculated Fountain’s sentence us-
ing the 1.5 kilograms of cocaine attributed to him in his presen-
tence investigation report. Section 2 of the Fair Sentencing Act,
which applied retroactively to Fountain under the First Step Act,
increased the quantity of crack cocaine that triggered the statutory
penalty and reduced those statutory penalties. See Jones, 962 F.3d
at 1298. So Fountain was convicted of a covered offense. And the
district court could have reduced Fountain’s sentence of 360
months of imprisonment under the revised guideline range. See id.
at 1305. Fountain’s base offense level decreased from 38, United
States Sentencing Guidelines Manual § 2D1.1(c)(1) (Nov. 2002), to
32, id. § 2D1.1(c)(4), and his sentencing range decreased from 360
months to life imprisonment to 292 to 365 months of imprison-
ment. The district court had the authority to reduce Fountain’s
sentence.
The district court did not abuse its discretion when it denied
Fountain’s motion to reduce his sentence “in the alternative” on
the merits. The district court reasonably decided to retain Foun-
tain’s original sentence of 360 months of imprisonment to promote
respect for the law, to provide adequate punishment for his crimes,
and to deter him from future criminal conduct that could endanger
USCA11 Case: 21-13413 Date Filed: 04/28/2022 Page: 6 of 6
6 Opinion of the Court 21-13413
the public. See
18 U.S.C. § 3553(a). Fountain challenges the drug
quantity attributed to him and his classification as a career offender,
but a district court may not revisit those original sentencing deter-
minations. See Jones, 962 F.3d at 1303. The district court reasona-
bly determined that the seriousness of Fountain’s offenses and his
criminal history disfavored a sentence reduction.
We AFFIRM the denial of Fountain’s motion for a sentence
reduction.
