USA v. Pinkney Clowers, III

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13074
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PINKNEY CLOWERS, III,
a.k.a. Boo Boo,
a.k.a. DOG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:92-cr-00082-TES-CHW-2
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 1 of 15

-- 1 of 15 --

2 Opinion of the Court 20-13074
____________________
Before J ILL PRYOR , GRANT, and ANDERSON, Circuit Judges.
GRANT, Circuit Judge:
The First Step Act offers a meaningful benefit: the
retroactive application of specified provisions of the Fair
Sentencing Act. But that benefit is limited. The Act permits a
district court to reduce an eligible defendant’s sentence “as if” the
Fair Sentencing Act “were in effect at the time the covered offense
was committed.” First Step Act of 2018, Pub. L. No. 115-391,
§ 404(b), 132 Stat. 5194, 5222. It “does not permit a reduction when
the Fair Sentencing Act could not have benefitted the movant.”
United States v. Jones, 962 F.3d 1290, 1303 (11th Cir. 2020). If the
defendant is already serving the statutory minimum sentence that
would have applied under the Fair Sentencing Act, the First Step
Act offers no relief.
Id.
But how does the First Step Act court decide what that
minimum sentence would have been? The district court
recalculates 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 First Step Act § 404(b);
cf.
Concepcion v. United States, 142 S. Ct. 2389, 2402 n.6 (2022) (under
the First Step Act, 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”). And as we
have said, a district court must incorporate a previous drug-
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 2 of 15

-- 2 of 15 --

20-13074 Opinion of the Court 3
quantity finding “that could have been used to determine the
movant’s statutory penalty at the time of sentencing” into its
analysis when determining whether the Fair Sentencing Act would
have benefitted the defendant.
Jones, 962 F.3d at 1303. That
includes findings made for purposes of calculating the defendant’s
Sentencing Guidelines range.
Pinkney Clowers appeals the denial of his First Step Act
motion to reduce his sentence. The district court considering
Clowers’s motion correctly concluded that it was bound by the
sentencing court’s drug-quantity finding when determining what
his statutory penalties would have been under the Fair Sentencing
Act. And because that drug quantity would still trigger a
mandatory life sentence after the Fair Sentencing Act, the district
court also correctly concluded that it could not reduce Clowers’s
sentence under the First Step Act.
I.
The “continuing criminal enterprise” statute targets
organized drug trafficking by setting stiff sentences for the
managers of criminal drug businesses. 21 U.S.C. § 848. The statute
mandates a sentence of life imprisonment if the defendant was one
of the “principal administrators, organizers, or leaders” of the
enterprise and the offense involved “at least 300 times the quantity”
of a controlled substance listed in § 841(b)(1)(B) of the federal drug-
trafficking statute.
Id. § 848(b). So, for example, the leader of a
gang engaged in drug trafficking might be sentenced to life in
prison if he were convicted of conspiring to distribute a large
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 3 of 15

-- 3 of 15 --

4 Opinion of the Court 20-13074
enough quantity of heroin or cocaine as part of the gang’s drug
business.
See id.;
see also id. §§ 841(b)(1)(B)(i) (heroin),
841(b)(1)(B)(ii)(II) (cocaine), 841(b)(1)(B)(iii) (“cocaine base” or
crack cocaine).
Clowers was convicted of just such an offense. In 1993, a
jury found him guilty of engaging in a continuing criminal
enterprise by committing a series of felony drug crimes involving
the distribution of crack cocaine—a substance listed in
§ 841(b)(1)(B)—along with other offenses. Evidence introduced at
his trial showed that Clowers and a codefendant founded and led
an organization that sold crack cocaine in Macon, Georgia in the
early 1990s.
United States v. Boyd, 131 F.3d 951, 952 (11th Cir.
1997). Clowers faced a possible mandatory life sentence based in
part on the quantity of crack cocaine involved.
The jury made no drug-quantity finding. Clowers was tried,
convicted, and sentenced before the Supreme Court clarified that
any fact (other than a prior conviction) that increases the statutory
minimum or maximum sentence must be treated as an element of
the offense to be found by the jury beyond a reasonable doubt.
Alleyne v. United States, 570 U.S. 99, 107–08 (2013);
Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Following the usual practice
at the time, the sentencing court made its own finding that
Clowers’s offense involved more than 15 kilograms of crack
cocaine, which corresponded to the highest offense level under the
Sentencing Guidelines.
See U.S. Sentencing Guidelines
§§ 2D1.1(c)(1), 2D1.5(a)(1) (Nov. 1993) (yielding an offense level in
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 4 of 15

-- 4 of 15 --

20-13074 Opinion of the Court 5
excess of 43). This was ten times the amount necessary to satisfy
the then-existing drug-quantity element of the continuing criminal
enterprise offense.
See 21 U.S.C. §§ 841(b)(1)(B)(iii), 848(b)(2)(A)
(1988). Because Clowers was also found to be one of the “principal
administrators, organizers, or leaders” of the crack-cocaine
business, the statute mandated a life sentence.
Id. § 848(b). The
court sentenced Clowers to life in prison.
Twenty-five years later—after having spent more of his life
in prison than out of it, and by all accounts behaving as a model
prisoner—Clowers filed a motion to reduce his sentence under the
First Step Act. The district court concluded that although it would
reduce the sentence if it were authorized to do so based on
Clowers’s exemplary behavior during nearly three decades in
prison, the text of the First Step Act did not give that option.
Clowers now appeals.
II.
In 2010, Congress enacted the Fair Sentencing Act to reduce
the dramatic disparity in jail time for defendants whose crimes
involved powder cocaine and those whose crimes involved crack
cocaine.
See Dorsey v. United States, 567 U.S. 260, 268–69 (2012).
The Act achieved this purpose by, among other things, amending
federal drug-trafficking statutes to increase the quantity of crack
cocaine required to trigger mandatory minimum sentences.
Id. at
269; Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124
Stat. 2372, 2372. But the Act applied only prospectively; it did not
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 5 of 15

-- 5 of 15 --

6 Opinion of the Court 20-13074
provide relief for defendants who had been sentenced before its
effective date.
See Jones, 962 F.3d at 1297.
Apparently dissatisfied that earlier offenders were still
subject to the same harsh penalties, Congress passed the First Step
Act, which made the crack cocaine sentencing changes retroactive.
Id. Under § 404 of the new Act, a district court that sentenced a
defendant 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 covered
offense was committed.” First Step Act § 404(b).
The statute 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.”
Id. § 404(a).
Those sections contain the quantity adjustments for minimum
sentences put in place to reduce the disparity between crack and
powder cocaine sentences. Fair Sentencing Act of 2010 §§ 2–3;
Dorsey, 567 U.S. at 269. So if a defendant 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)(B)(iii), his offense is a covered offense under the First
Step Act.
Jones, 962 F.3d at 1298.
But that does not mean that the district court can reduce the
sentence of every defendant with a covered offense. As we
explained in
Jones, the fact that any sentence reduction must be
made “as if” the Fair Sentencing Act were in effect at the time of
the defendant’s offense means that no relief is available under the
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 6 of 15

-- 6 of 15 --

20-13074 Opinion of the Court 7
First Step Act if the defendant “received the lowest statutory
penalty that also would be available to him under the Fair
Sentencing Act.”
Id. at 1303. And in determining what the
defendant’s statutory penalty would have been under the Fair
Sentencing Act, “the 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.”
Id.1
III.
The parties agree, as do we, that Clowers has a covered
offense under the First Step Act. The jury found him guilty of
engaging in a continuing criminal enterprise. The penalties for that
crime incorporated the drug quantity in 21 U.S.C.
§ 841(b)(1)(B)(iii).
See 21 U.S.C. § 848(b)(2)(A) (1988). The Fair
Sentencing Act increased the quantity of crack cocaine required
under that subsection from 5 grams to 28 grams. Fair Sentencing
Act § 2(a)(2). Clowers was thus sentenced for a “covered offense”
because § 2 of the Fair Sentencing Act modified the statutory
penalties for his offense.
Jones, 962 F.3d at 1298.
But as we have said, having a covered offense is not always
enough. The Fair Sentencing Act raised the quantity of crack
cocaine required to trigger statutory minimum sentences; it did not
remove the mandatory minimum penalties altogether. The First
Step Act does not authorize a sentence reduction below the
1 We recently reaffirmed our reasoning in
Jones with respect to these limita-
tions.
See United States v. Jackson, 58 F.4th 1331, 1333 (11th Cir. 2023).
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 7 of 15

-- 7 of 15 --

8 Opinion of the Court 20-13074
statutory minimum sentence that would have applied if the Fair
Sentencing Act had been in effect when the movant committed his
offense. Nor does it change the legal significance that the
sentencing court’s drug-quantity findings held at the time.
Clowers’s case illustrates the point. Because he would
receive the same mandatory life sentence even under the Fair
Sentencing Act, the district court could not reduce his sentence
under the First Step Act. To explain in more detail, if the Fair
Sentencing Act had been in effect at the time of Clowers’s offense,
the quantity of crack cocaine listed in § 841(b)(1)(B) would have
been 28 grams instead of 5 grams, and the quantity of crack cocaine
required to trigger a mandatory life sentence for a continuing
criminal enterprise offense would have been 8.4 kilograms instead
of 1.5 kilograms.
See 21 U.S.C. § 848(b)(2)(A) (mandating a life
sentence for offenses involving “at least 300 times the quantity of a
substance described in subsection 841(b)(1)(B)”). Either way, the
sentencing court’s finding that Clowers’s offense involved more
than 15 kilograms of crack cocaine would easily satisfy the quantity
element of Clowers’s continuing criminal enterprise offense; the
statute would still have required a life sentence. Because the
sentencing judge would not have had any latitude to impose a
lower sentence if the Fair Sentencing Act had existed in 1994, the
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 8 of 15

-- 8 of 15 --

20-13074 Opinion of the Court 9
First Step Act does not authorize the district court to do so now.2
See Jones, 962 F.3d at 1303.
Clowers tries to get around our holding in
Jones by
creatively interpreting the language we used in that opinion. He
argues that when we referred to a drug-quantity finding that “could
have been used” at sentencing to determine the applicable
statutory penalties, we really meant that district courts are bound
only by a drug-quantity finding that
was used for that purpose.
Id.
He contends that because the parties and the sentencing court
discussed drug quantity at his sentencing only in relation to his
Sentencing Guidelines range, the court’s finding that his offense
involved more than 15 kilograms of crack cocaine was not used to
determine his statutory penalties. Consequently, he argues, the
district court was not bound by that finding when determining his
2 Clowers fights the basic premise of this analysis. He argues that the district
court should not have used the sentencing court’s drug-quantity finding to
determine his statutory penalty under the Fair Sentencing Act because we
now recognize that the Sixth Amendment requires such findings to be made
by a jury. As Clowers acknowledges, we have rejected this argument before,
and we reiterate that “the Constitution does not prohibit district courts, in
deciding motions for reduced sentences under the First Step Act, from relying
on earlier judge-found facts that triggered statutory penalties that the Fair
Sentencing Act later modified.”
Jones, 962 F.3d at 1303. We are, of course,
bound by our prior panel decision in
Jones “unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court
sitting
en banc.”
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
We therefore reject without further discussion Clowers’s arguments that
Jones was wrongly decided.
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 9 of 15

-- 9 of 15 --

10 Opinion of the Court 20-13074
statutory sentencing range under the Fair Sentencing Act. We
reject this strained interpretation as inconsistent with the statutory
text.
When we explained in
Jones that the “as if” clause requires
district courts considering First Step Act motions to honor any
drug-quantity finding that “could have been used to determine the
movant’s statutory penalty at the time of sentencing,” we meant
what we said.
Id. If the jury—or the court, acting before
Apprendi—made a drug-quantity finding that could have been
used at the time of sentencing to determine the defendant’s
statutory penalties, the district court must use the same quantity to
decide what the defendant’s statutory penalties would have been if
§ 2 of the Fair Sentencing Act had been in effect at the time of the
offense.
Our application of this principle to two of the defendants in
Jones—Alfonso Allen and Warren Jackson—makes our meaning
clear. Allen and Jackson each received a mandatory life sentence
for a covered offense: conspiracy to possess with intent to
distribute 50 grams or more of crack cocaine.
Id. at 1294–95. Allen
was charged in 2006; a jury found him guilty as charged and made
a drug-quantity finding of 50 grams or more of crack cocaine for
the drug conspiracy offense.
Id. at 1294. The district court imposed
a mandatory life sentence based on the jury’s drug-quantity finding
and Allen’s two prior felony drug convictions.
Id.;
see 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006).
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 10 of 15

-- 10 of 15 --

20-13074 Opinion of the Court 11
Years later, in a postconviction proceeding, the district court
found that Allen had been responsible for selling more than 420
grams of crack cocaine per week.
See Jones, 962 F.3d at 1294–95.
And several years after that, the court relied on that quantity
finding (420 grams) to deny Allen’s First Step Act motion,
concluding that the retroactive application of the Fair Sentencing
Act did not benefit him because of the large quantity of crack
cocaine involved in his offense.
See id.
On appeal, we explained that the district court was not
bound by its earlier 420-gram finding during First Step Act
proceedings because the district court’s findings in habeas “did not
trigger the statutory penalty” for Allen.
Id. at 1303. In other words,
the larger drug-quantity finding could not have been used “to
determine the movant’s statutory penalty at the time of
sentencing.”
Id. That is true—both because the finding was not
made until years after Allen was sentenced, and because Allen’s
sentencing took place after the Supreme Court clarified in
Apprendi that such findings must be made by a jury beyond a
reasonable doubt if they increase the penalty for a crime beyond
the otherwise applicable statutory maximum.
See id. at 1294–95;
Apprendi, 530 U.S. at 490.
To determine Allen’s new statutory sentencing range “as if”
§ 2 of the Fair Sentencing Act “were in effect at the time the
covered offense was committed,” we used the only drug-quantity
finding that “could have been used” by the sentencing court to
determine Allen’s statutory penalties—the jury’s finding that his
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 11 of 15

-- 11 of 15 --

12 Opinion of the Court 20-13074
offense involved 50 grams or more of crack cocaine.
Jones, 962
F.3d at 1303–04. Under the Fair Sentencing Act, the statutory
penalty for a drug-trafficking offense involving 50 grams of crack
cocaine would have been 10 years to life in prison instead of the
mandatory life sentence Allen received.
Id. at 1304;
compare 21
U.S.C. § 841(b)(1)(A)(iii) (2006),
with 21 U.S.C. § 841(b)(1)(A)(iii)–
(B)(iii) (2012). Allen, therefore, could have received a lower
minimum sentence and was eligible for relief under the First Step
Act.
Jones, 962 F.3d at 1304.
For Jackson, the story was different. Like Allen, Jackson was
charged with possessing with intent to distribute 50 grams or more
of crack cocaine.
Id. at 1295. The jury found Jackson guilty as
charged without making any more specific drug-quantity finding.
Id. Jackson was subject to a mandatory life sentence because his
offense involved more than 50 grams of crack cocaine and he had
three prior felony drug offenses.
Id.;
see also 21 U.S.C.
§ 841(b)(1)(A)(iii) (1994). But Jackson’s sentencing court—unlike
Allen’s—made a drug-quantity finding at the time of sentencing. It
found that his offense involved 287 grams of crack cocaine.
Jones,
962 F.3d at 1295.
Jackson later moved for a reduction of his life sentence
under the First Step Act.
Id. On appeal from the denial of that
motion, we used the sentencing court’s drug-quantity finding—
which was above the updated threshold quantity of 280 grams
established in the Fair Sentencing Act—to determine that Jackson
would have been subject to a mandatory life sentence even if the
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 12 of 15

-- 12 of 15 --

20-13074 Opinion of the Court 13
Fair Sentencing Act had been in effect when he committed his
offense.3
Id. at 1304. We also said that because Jackson would face
the same mandatory minimum statutory penalty under the Fair
Sentencing Act, the district court was not authorized to reduce his
sentence under the First Step Act.
Id.
Clowers is in the same boat as Jackson. At his sentencing
proceeding, the sentencing court found that his offense involved
more than 15 kilograms of crack cocaine, a finding that could have
been—and in this case was—used to determine whether Clowers
was subject to the mandatory life sentence under § 848(b). The
district court was therefore bound by the sentencing court’s drug-
quantity finding when determining his new statutory penalties for
purposes of his First Step Act motion.
Contrary to Clowers’s assertion, the focus at sentencing on
his Sentencing Guidelines range does not indicate that the court’s
drug-quantity finding was used only for Guidelines purposes. At
3 We note that the sentencing court’s drug-quantity finding was not needed to
determine Jackson’s statutory penalties. His indictment charged a quantity of
crack cocaine (more than 50 grams) that, when coupled with his prior offenses,
was sufficient (before the Fair Sentencing Act) to trigger the highest statutory
penalty, and the jury found him guilty as charged.
Jones, 962 F.3d at 1295. But
according to the prevailing understanding of the law at the time, the court’s
finding that Jackson’s offense involved 287 grams of crack cocaine “could have
been used” to determine his statutory penalties at sentencing.
Id. at 1303;
see
United States v. Sanchez, 269 F.3d 1250, 1266–67 & n.28 (11th Cir. 2001) (en
banc) (describing pre-Apprendi practice),
abrogated by Alleyne, 570 U.S. at
103.
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 13 of 15

-- 13 of 15 --

14 Opinion of the Court 20-13074
the time, the sentencing court generally was required to make
factual findings relevant to various statutory sentence
enhancements as well as to the applicable Guidelines range.
Where both calculations required a drug-quantity finding, a single
finding by the court could serve both purposes.
See, e.g.,
Chapman
v. United States, 500 U.S. 453, 455–56 (1991);
United States v.
Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001) (en banc),
abrogated
by Alleyne, 570 U.S. at 103. It appears that the parties focused on
the 15-kilogram quantity of crack cocaine that triggered the highest
Guidelines range because it was the largest quantity that would
have had any impact on the court’s sentencing calculations.
We also reject Clowers’s characterization of the sentencing
court’s finding that his offense involved more than 15 kilograms of
crack cocaine as a legal finding that his offense involved enough
drugs to trigger the highest Guidelines range, rather than a factual
finding. The court’s drug-quantity finding had legal implications,
of course, as such findings nearly always do. The same can be said
of a jury verdict that includes a finding that the defendant’s offense
involved a quantity of drugs above the statutory threshold. But the
legal significance of the finding does not change its factual nature.
We conclude, therefore, that the district court correctly used
the 15-kilogram finding to determine what the statutory penalty
would have been for Clowers under the Fair Sentencing Act. And
because this finding would have compelled the sentencing court to
impose the same mandatory life sentence even if the Fair
Sentencing Act had been in effect at the time, the district court
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 14 of 15

-- 14 of 15 --

20-13074 Opinion of the Court 15
correctly concluded that it could not reduce Clowers’s sentence
under the First Step Act.
* * *
Congress enacted the Fair Sentencing Act to reduce
disparities between prison sentences for future offenses involving
crack cocaine and powder cocaine. And in the First Step Act,
Congress decided to extend the same reduction in sentencing
disparities to past offenses. The language of that statute is
straightforward—eligible crack offenders can now be resentenced
“as if” the Fair Sentencing Act had already been in place during
their original sentencing.
What Congress did not do is offer a sentence reduction
below the statutory minimum under the Fair Sentencing Act, or
vacate drug-quantity findings that would have triggered that
minimum at the time of the movant’s offense. Though Congress
could have chosen any number of ways to bring relief to crack-
cocaine offenders, we must stick with the one it chose. We
therefore AFFIRM the district court’s judgment.
USCA11 Case: 20-13074 Document: 39-1 Date Filed: 03/14/2023 Page: 15 of 15

-- 15 of 15 --