USA v. Calvin Solomon

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10480
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN SOLOMON,
a.k.a. Scabo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:95-cr-00007-HES-MCR-1
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2 Opinion of the Court 23-10480
____________________
Before J ORDAN, ROSENBAUM , and J ILL PRYOR , Circuit Judges.
PER CURIAM:
Calvin Solomon appeals the district court’s order denying
his motion for a sentence reduction pursuant to § 404 of the First
Step Act of 2018. The government has moved for summary affir-
mance and to stay the briefing schedule. We grant the govern-
ment’s motion for summary affirmance.
I.
In 1995, a grand jury charged Solomon with conspiring to
distribute five kilograms or more of powder cocaine and an unspec-
ified amount of crack cocaine. At trial, a jury found Solomon guilty
of the conspiracy offense. At sentencing, the district court found
that the offense involved at least 1.5 kilograms of crack cocaine.
Based on this drug quantity and because Solomon had at least two
prior convictions for felony drug offenses, the district court was re-
quired to impose a mandatory life sentence. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (1995).
In 2010, Congress passed the Fair Sentencing Act to address
disparities in sentences between offenses involving crack cocaine
and those involving powder cocaine. See Pub. L. No. 111-220,
124 Stat. 2372 (2010); see also Kimbrough v. United States, 552 U.S. 85,
97–100 (2007) (providing background on disparity). The Fair Sen-
tencing Act increased the quantity of crack cocaine necessary to
trigger the highest statutory penalties from 50 grams to 280 grams
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23-10480 Opinion of the Court 3
and the quantity of crack cocaine necessary to trigger intermediate
statutory penalties from 5 grams to 28 grams. See Fair Sentencing
Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii) (2011). But the Fair Sen-
tencing Act’s reduced penalties applied only to defendants who
were sentenced on or after the Fair Sentencing Act’s effective date.
Dorsey v. United States, 567 U.S. 260, 264 (2012).
In 2018, Congress passed the First Step Act, Pub. L. No. 115-
391, 132 Stat. 5194 (2018). Among other things, the First Step Act
gave district courts the discretion to apply retroactively the re-
duced statutory penalties for crack-cocaine offenses in the Fair Sen-
tencing Act of 2010 to movants sentenced before those penalties
became effective. See First Step Act § 404.
Solomon filed a motion in the district court seeking a sen-
tence reduction under the First Step Act. The district court denied
the motion. It found that Solomon was not eligible for a sentence
reduction because he already was “serving the lowest statutory
penalty availabl[e] to him” under the Fair Sentencing. Doc. 227 at
4.1 In calculating what Solomon’s sentence would have been under
the Fair Sentencing Act, the district court used the drug quantity
found at sentencing: 1.5 kilograms of crack cocaine. Given this drug
quantity and Solomon’s prior felony drug convictions, the district
court concluded that he would have remained subject to a manda-
tory life sentence under the Fair Sentencing Act. The district court
then continued on to say even if Solomon were eligible for a
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 23-10480
sentence reduction, it would not exercise its discretion to reduce
his sentence.
This is Solomon’s appeal. After Solomon filed his appellant’s
brief, the government filed a motion for summary affirmance.
II.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).2
We review de novo whether a district court had the authority
to modify a defendant’s term of imprisonment under the First Step
Act. United States v. Jackson, 58 F.4th 1331, 1335 (11th Cir. 2023).
III.
District courts generally lack the authority to modify a term
of imprisonment once it has been imposed. See 18 U.S.C. § 3582(c).
But the First Step Act permits district courts to reduce some previ-
ously-imposed terms of imprisonment for offenses involving crack
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
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23-10480 Opinion of the Court 5
cocaine. See First Step Act § 404. Under § 404, a district court that
sentenced a movant for a “covered offense” may “impose a re-
duced sentence as if sections 2 and 3 of the Fair Sentencing Act of
2010 . . . were in effect at the time the covered offense was com-
mitted.” Id. § 404(b).
The First Step Act defines a “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 of 2010.” Id.
§ 404(a). Those sections contain the quantity adjustments for min-
imum sentences put in place to reduce the disparity between crack
and powder cocaine sentences. See Dorsey, 567 U.S. at 269. As a re-
sult, “if a [movant] was sentenced before the effective date of the
Fair Sentencing Act for an offense that includes as an element the
quantity of crack cocaine described in [§ 841(b)(1)(A)(iii)], his of-
fense is a covered offense under the First Step Act.” United States v.
Clowers, 62 F.4th 1377, 1380 (11th Cir. 2023).
But a district court does not have the authority to reduce the
sentence of every movant with a covered offense. See id. Because
the First Step Act specifies that any sentence reduction must be
made “as if” the Fair Sentencing Act were in effect at the time of
the movant’s offense, we have held that “no relief is available under
the First Step Act” if the movant “received the lowest statutory
penalty that also would be available to him under the Fair Sentenc-
ing Act.” Id. (internal quotation marks omitted).
We have previously addressed how a district court deter-
mines what a movant’s statutory penalty would have been under
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6 Opinion of the Court 23-10480
the Fair Sentencing Act. See United States v. Jones, 962 F.3d 1290,
1300–02 (11th Cir. 2020), vacated sub nom. Jackson v. United States,
143 S. Ct. 72 (2022), reinstated by Jackson, 58 F.4th at 1333. As we
have explained, a “district court is bound by a previous finding of
drug quantity that could have been used to determine the movant’s
statutory penalty at the time of sentencing,” including a drug-quan-
tity finding “made by a judge.” Id. at 1302–03.We acknowledged
that the Supreme Court in Apprendi v. New Jersey recognized that a
jury must make such a drug-quantity finding when it increases the
statutory penalty. Id. at 1302 (citing 530 U.S. 466, 490 (2000)). But
we held that for a movant who was sentenced prior to Apprendi, a
district court could look to a drug-quantity finding made by a judge
at sentencing because that finding was used to set the movant’s
penalty range and “just as a movant may not use Apprendi to collat-
erally attack his sentence, he cannot rely on Apprendi to redefine his
offense for purposes of a First Step Act motion.” Id. (internal cita-
tion omitted).
Later, the Supreme Court held in Concepcion v. United States
that district courts may consider intervening changes of law or fact
when deciding whether to exercise their discretion under § 404 to
reduce an eligible movant’s sentence. 142 S. Ct. 2389, 2396 (2022).
In reaching this conclusion, the Court emphasized that district
courts have discretion in sentencing proceedings. See id. at 2398–
2401. The Court concluded “the First Step Act simply did not con-
travene this well-established sentencing practice,” explaining that
“[n]othing in the text and structure of the First Step Act expressly,
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23-10480 Opinion of the Court 7
or even implicitly, overcomes the established tradition of district
courts’ sentencing discretion.” Id. at 2401.
Later, the Supreme Court granted a petition for a writ of
certiorari filed by one of the four movants from the consolidated
appeal in Jones, vacated our judgment, and remanded for further
consideration in light of Concepcion. See Jackson, 143 S. Ct. at 73. On
remand, the movant argued that Concepcion abrogated the holding
in Jones that district courts are bound by drug quantity findings
made at sentencing because Concepcion made clear that district
courts are free to consider intervening changes in law, such as Ap-
prendi. Jackson, 58 F.4th at 1335–36. We rejected this argument,
concluding that “Concepcion did not abrogate the reasoning of our
decision in . . . Jones,” and reinstated our prior decision. Id. at 1333.
In this appeal, Solomon argues that the district court erred
in concluding that he was ineligible for a sentence reduction be-
cause under Apprendi the district court could not look at the drug
quantity finding made at sentencing to determine what his penalty
range would have been under the Fair Sentencing Act. But Solo-
mon concedes that this argument is foreclosed by Jackson. See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A]
prior panel’s holding is binding on all subsequent panels unless and
until it is overruled or undermined to the point of abrogation by
the Supreme Court or by this court sitting en banc.”).
Given our binding precedent, we conclude that there is no
substantial question as to the outcome of this appeal; therefore,
summary affirmance is appropriate. See Groendyke Transp., 406 F.2d
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8 Opinion of the Court 23-10480
at 1162. Accordingly, the government’s motion for summary affir-
mance is GRANTED and its motion to stay the briefing schedule is
DENIED as moot.
AFFIRMED.
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