              Case: 19-13938     Date Filed: 08/24/2020   Page: 1 of 5



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-13938
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 6:06-cr-00032-JA-DCI-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

NEALLY CUNNINGHAM,
a.k.a. Neally Cunningham, Jr.,
a.k.a. Nealey Cunningham, III,
a.k.a. Nealy Cunningham, III,

                                                              Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (August 24, 2020)


Before NEWSOM, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:
              Case: 19-13938     Date Filed: 08/24/2020   Page: 2 of 5



      Neally Cunningham appeals the district court’s denial of his motion for a

reduced sentence under section 404 of the First Step Act of 2018, Pub. L. No. 115-

391, 132 Stat. 5194, 5222, § 404. He contends that the district court erred by

concluding he was ineligible for First Step Act relief. We affirm.

      In 2006, following a jury trial, Cunningham was convicted of two counts of

possessing crack cocaine with the intent to distribute it, in violation of 21 U.S.C.

sections 841(a)(1) and (b)(1)(C). The jury found that Cunningham possessed less

than five grams of crack cocaine, and the district court sentenced him as a career

offender to 262 months’ imprisonment.

      In 2019, Cunningham moved for a reduction of his sentence under section 404

of the First Step Act. Cunningham argued that his convictions under section

841(b)(1)(C) were “covered offense[s]” under section 404 “because [section] 2 of

the Fair Sentencing Act changed the weight of [crack cocaine] that was penalized by

a statutory range of 0 to 20 years, from less than 5 grams to less than 28 grams.”

The district court denied Cunningham’s motion, concluding that he was not eligible

for relief under the First Step Act because his convictions were not “covered

offense[s]” as defined by the Act. This is Cunningham’s appeal.

      “A district court lacks the inherent authority to modify a term of

imprisonment. But it may do so . . . to the extent that a statute expressly permits.

And the First Step Act expressly permits district courts to reduce a previously


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imposed term of imprisonment.” United States v. Jones, 962 F.3d 1290, 1297 (11th

Cir. 2020) (citations omitted). 1

       In 2010, Congress enacted the Fair Sentencing Act, which reduced the

sentencing disparity between crack-cocaine and powder-cocaine offenses. Fair

Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372; see also

Dorsey v. United States, 567 U.S. 260, 268–69 (2012). Section two of the Fair

Sentencing Act modified sections 841(b)(1)(A)(iii) and (B)(iii) by “increas[ing] the

drug amounts [necessary to trigger] mandatory minimums for crack trafficking

offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50

grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500

grams and 5,000 grams respectively).” Dorsey, 567 U.S. at 269. 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).

And the Fair Sentencing Act did not modify the statutory penalties for section

841(b)(1)(C), which both before and after the Act provided for a term of

imprisonment of not more than twenty years (thirty years with a prior felony drug

offense) for cases involving crack cocaine that did not fall within sections

841(b)(1)(A) or (B). See Fair Sentencing Act § 2(a); 21 U.S.C. § 841(b)(1)(C).



       1
        “We review de novo . . . whether a district court had the authority to modify a term of
imprisonment.” Jones, 962 F.3d at 1296 (citation omitted).
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      In 2018, Congress enacted the First Step Act, which made retroactive the

statutory penalties for covered offenses under the Fair Sentencing Act. See First

Step Act § 404. Under section 404(b) of the First Step 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 [the

enactment of the Fair Sentencing Act].” Id. § 404(a).

      In Jones, we recently held that a crack-cocaine conviction is a “covered

offense” if it “triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii).”

962 F.3d at 1301. We explained,

      A [defendant]’s offense is a covered offense if section two or three of
      the Fair Sentencing Act modified its statutory penalties. Section two of
      the Fair Sentencing Act . . . modified the statutory penalties for crack-
      cocaine offenses that have as an element the quantity of crack cocaine
      provided in subsections 841(b)(1)(A)(iii) and (B)(iii). It did so by
      increasing the quantity of crack cocaine necessary to trigger those
      penalty provisions. See Fair Sentencing Act § 2(a).

Id. at 1298.

       Here, Cunningham was convicted under section 841(b)(1)(C), which is not a

covered offense as defined in the First Step Act. Section two of the Fair Sentencing

Act modified the statutory penalties for sections 841(b)(1)(A)(iii) and (b)(1)(B)(iii),


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but not for section (b)(1)(C). While the increase in drug quantity in section

841(b)(1)(B)(iii) did, in turn, increase the drug quantity for section 841(b)(1)(C)

from five grams to twenty-eight grams, that change did not affect the statutory

penalties of those, like Cunningham, who were originally sentenced under section

841(b)(1)(C). Cunningham’s statutory minimum and maximum sentence––zero to

thirty-year imprisonment––were the same before and after the passage of the Fair

Sentencing Act. The district court did not err in denying Cunningham’s motion for

First Step Act relief.

      AFFIRMED.




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