USA v. Michael G Harper

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13296
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL G. HARPER,
a.k.a. Cuban Mike,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:99-cr-00125-KMM-11
USCA11 Case: 20-13296 Document: 51 Date Filed: 05/01/2023 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 20-13296
____________________
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
Before WILSON, ROSENBAUM , and GRANT, Circuit Judges.
PER CURIAM:
We previously affirmed the district court’s denial of Michael
Harper’s motion for a sentence reduction under the First Step Act
of 2018. The Supreme Court vacated our prior decision and re-
manded the case to us for further consideration in light of
Concep-
cion v. United States, 142 S. Ct. 2389 (2022).
Harper v. United
States, 142 S. Ct. 2898 (2022).
Concepcion established that district courts may consider in-
tervening changes in the law when deciding whether and how
much to reduce the sentence of a defendant who is eligible for relief
under the First Step Act. 142 S. Ct. at 2396. And because “district
courts are always obligated to consider nonfrivolous arguments
presented by the parties, the First Step Act requires district courts
to consider intervening changes when the parties raise them.”
Id.
Concepcion also acknowledged, however, that the First Step Act
explicitly left the decision whether to grant a sentence reduction to
the district court’s discretion.
Id. So although district courts are
required to consider arguments raised by the parties, “the First Step
Act does not compel courts to exercise their discretion to reduce
any sentence based on those arguments.”
Id.
USCA11 Case: 20-13296 Document: 51 Date Filed: 05/01/2023 Page: 2 of 5

-- 2 of 5 --

20-13296 Opinion of the Court 3
Harper argues that
Concepcion abrogated our holding in
United States v. Jones that “in determining what a movant’s statu-
tory penalty would be 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.” 962 F.3d 1290, 1303 (11th Cir. 2020). He con-
tends that
Concepcion requires district courts to retroactively ap-
ply
Apprendi v. New Jersey, 530 U.S. 466 (2000), by disregarding
any drug-quantity finding not made by a jury when calculating the
movant’s new statutory penalties and Sentencing Guidelines range.
In his case, he says, this means that his statutory sentencing range
should be based on 21 U.S.C. § 841(b)(1)(C), which provides a max-
imum sentence of 20 years in prison for an offense involving an
unspecified amount of crack cocaine. And because his Guidelines
sentence was dependent on his statutory penalty, his
Apprendi-ad-
justed statutory sentence would result in a Guidelines sentence of
20 years in prison, rather than the life sentence calculated by the
district court.
Harper’s argument is foreclosed by our recent opinion fol-
lowing a Supreme Court remand of one of the four appeals decided
in
Jones.
See United States v. Jackson, 58 F.4th 1331 (2023). In
Jackson, we held that
Concepcion did not abrogate the reasoning
in
Jones, and we reinstated our prior opinion in that case.
Id. at
1333. His argument is also foreclosed by
Concepcion itself, which
explained that a district court
cannot “recalculate a movant’s
benchmark Guidelines range in any way other than to reflect the
USCA11 Case: 20-13296 Document: 51 Date Filed: 05/01/2023 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 20-13296
retroactive application of the Fair Sentencing Act. Rather, the First
Step Act directs district courts to calculate the Guidelines range as
if the Fair Sentencing Act’s amendments had been in place at the
time of the offense.”
Concepcion, 142 S. Ct. at 2402 n.6. Using the
new Guidelines range as a “benchmark,” the court “may then con-
sider postsentencing conduct or nonretroactive changes in select-
ing or rejecting an appropriate sentence.”
Id.
The district court here correctly determined that Harper
was eligible for a sentence reduction under the First Step Act be-
cause he was sentenced for a “covered offense”; namely, conspir-
acy to possess with intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846.
See First
Step Act of 2018, Pub. L. No. 115-391, § 404(a)–(b), 132 Stat. 5194,
5222;
Jones, 962 F.3d at 1301. The court also correctly determined
that Harper’s statutory sentencing range would still be ten years to
life in prison under the Fair Sentencing Act, based on the court’s
finding at sentencing that his offense involved 1.5 kilograms of
crack cocaine, and his Guidelines sentence would still be life in
prison.
See 21 U.S.C. §841(b)(1)(A) (2012);
Jones, 962 F.3d at 1303;
see also U.S.S.G. §§ 2D1.1(d)(1), 2A1.1.
The district court’s order indicates that it considered Har-
per’s argument based on
Apprendi. After correctly calculating Har-
per’s benchmark Guidelines sentence under the Fair Sentencing
Act, the court determined that a reduction in Harper’s sentence be-
low the advisory Guidelines sentence of life in prison would not be
appropriate. This decision was within the broad discretion
USCA11 Case: 20-13296 Document: 51 Date Filed: 05/01/2023 Page: 4 of 5

-- 4 of 5 --

20-13296 Opinion of the Court 5
afforded to district courts to grant or deny First Step Act motions.
See First Step Act § 404(c);
Concepcion, 142 S. Ct. at 2404;
Jones,
962 F.3d at 1304. We therefore affirm.
AFFIRMED.
USCA11 Case: 20-13296 Document: 51 Date Filed: 05/01/2023 Page: 5 of 5

-- 5 of 5 --