USCA11 Case: 20-11126 Document: 64-1 Date Filed: 08/30/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11126
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY L. FORD,
a.k.a. BoBo,
a.k.a. Bo,
a.k.a. Big Head,
Defendant-Appellant.
____________________
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2 Opinion of the Court 20-11126
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:05-cr-00044-SCB-JSS-1
____________________
Before NEWSOM, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
We previously issued an opinion affirming the district
court’s denial of Tony Ford’s motion for a sentence reduction un-
der section 404 of the First Step Act of 2018. See United States v.
Ford,
858 F. App’x 325 (11th Cir. 2021) (unpublished).
In our original opinion, we concluded that a sentence of life
imprisonment remained the lowest possible penalty available to
Ford under the Fair Sentencing Act given the quantity of drugs in-
volved in Ford’s offense (5 kilograms of powder cocaine and 50
grams of crack cocaine) and Ford’s two prior felony drug convic-
tions. See
id. at 328 (explaining that, “[b]oth before and after pas-
sage of the Fair Sentencing Act, [21 U.S.C. §] 841(b)(1)(A)(ii) im-
posed a mandatory life sentence for offenses involving five kilo-
grams or more of powder cocaine committed by defendants with
two or more prior felony drug convictions.”). For that reason, we
concluded -- relying on our decision in United States v. Jones,
962 F.3d
1290 (11th Cir. 2020) -- that the district court lacked authority to
reduce Ford’s sentence. See Ford, 858 F. App’x at 327-28.
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20-11126 Opinion of the Court 3
We also rejected Ford’s suggestion that his sentence should
be reduced based on other changes in the law that had since low-
ered the statutory-mandatory-penalty for his offense. We ex-
plained that -- because the district court was not free to consider
changes in the law “beyond those mandated by sections 2 and 3” of
the Fair Sentencing Act -- it was immaterial that “Ford might be
subject to a lower statutory mandatory sentence under the most
recent version of section 841(b)(1)(A).” See id. at 328.
The Supreme Court later granted certiorari, vacated our de-
cision, and remanded the case to us for additional consideration in
the light of its decision in Concepcion v. United States,
142 S. Ct. 2389
(2022). See Ford v. United States,
143 S. Ct. 71 (2022). In Concepcion,
the Supreme Court concluded that district courts may “consider
intervening changes of law or fact in exercising their discretion to
reduce a sentence pursuant to the First Step Act.” See 142 S. Ct. at
2404. The parties have filed supplemental briefs addressing what
effect, if any, Concepcion has on the disposition of this appeal.
In his supplemental brief, Ford contends that the district
court had discretion under Concepcion to consider an intervening
change to the statutory-mandatory-minimum sentence in section
841(b)(1)(A) in ruling on Ford’s First Step Act motion. We disagree.
We have already concluded that the Supreme Court’s deci-
sion in Concepcion did not abrogate our decision in Jones. See United
States v. Jackson,
58 F.4th 1331, 1333 (11th Cir. 2023). In distinguish-
ing the circumstances presented in Concepcion from those pre-
sented in Jones, we explained that Jones involved a determination
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4 Opinion of the Court 20-11126
about drug-quantity: “an issue that arises before the sentencing
court’s discretion comes into play.” Id. at 1336. Concepcion, on the
other hand, addressed what factors a district court may consider
when exercising its discretion to modify a movant’s sentence: “an
issue that arises only after drug quantity and the corresponding
statutory penalties have been established.” See id. In drawing that
distinction, we were guided by language in Concepcion specifying
that “[a] district court cannot . . . recalculate a movant’s benchmark
Guidelines range in any way other than to reflect the retroactive
application of the Fair Sentencing Act.” See id. at 1337 (citing Con-
cepcion, 142 S. Ct. at 2402 n.6, 2403 n.8).
We have also reaffirmed post-Concepcion our conclusion in
Jones that a district court lacks authority to reduce a sentence under
the First Step Act if the movant “received the lowest statutory pen-
alty that also would be available to him under the Fair Sentencing
Act.” See United States v. Clowers,
62 F.4th 1377, 1380-81 (11th Cir.
2023) (affirming the denial of a sentence reduction under the First
Step Act because the movant would still be subject to a mandatory
life sentence had the Fair Sentencing Act been in effect when he
committed his offense). And we have stressed that a district court
determines the applicable statutory penalty by “recalculat[ing] the
statutory sentencing range as if the Fair Sentencing Act’s changes -
- and only those changes -- were in effect at the time the offense was
committed.” See id. at 1378 (emphasis added).
The central issue in this case involves the calculation of the
minimum-statutory-penalty Ford would face under the Fair
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20-11126 Opinion of the Court 5
Sentencing Act: a matter “that arises before the sentencing court’s
discretion comes into play.” See Jackson, 58 F.4th at 1336. Applying
only those changes made by the Fair Sentencing Act, Ford would
still be subject to a statutory-mandatory-minimum-sentence of life
imprisonment. The district court, thus, lacked authority to reduce
Ford’s sentence and never reached the discretionary decision-mak-
ing stage addressed in Concepcion. See Clowers, 62 F.4th at 1380-81.
We see no conflict between our prior opinion in this appeal
and the Supreme Court’s decision in Concepcion. We reinstate our
prior opinion and affirm the district court’s order denying Ford’s
motion for a reduced sentence.
OPINION REINSTATED; AFFIRMED.
