Whether the Eleventh Circuit's limitation on First Step Act relief contravenes Terry's element-based determination of eligibility and Concepcion's holding that courts may consider intervening changes of law

QUESTION PRESENTED When a jury convicted Pinkney Clowers of continuing a criminal enterprise, 21 U.S.C. § 484(b) mandated a life sentence because his offense involved at least 1.5 kilograms of crack cocaine. Subsequently, the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, raised the quantity that triggers life to 8.4 kilograms, and section 404 the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, permit district courts to apply this change retroactively. To do so, a court first ensures the movant was convicted of a “covered offense” — an offense, committed before August 3, 2010, for which the Fair Sentencing Act changed the crack quantity element of the movant’s statute of conviction. See Terry v. United States, _U.S.__, 141 §.Ct. 1858 (2021). It then has discretion to reduce the movant’s sentence to the bottom of the statutory imprisonment range. It may consider intervening changes in fact or law in exercising this discretion. Concepcion v. United States, _U.S.__, 142 8. Ct. 2389 (2022). The Eleventh Circuit alone maintains an additional limitation on district courts’ discretion. Unlike every other Circuit, it does not use the drug quantity element of the statute of conviction to determine the bottom of the statutory imprisonment range. Instead, reviewing courts must comb the record for any factual finding of drug quantity that “could have been used” to determine a defendant’s original statutory imprisonment range and use this finding to calculate the new range. United States v. Jones, 962 F.3d 1290, 1304 (2020). This method applies even to judicial findings made before Apprendi v. New Jersey, 530 U.S. 446 (2000). It applies even to findings that were not, in fact, the basis of the defendant’s original statutory imprisonment range. And it closes the door to First Step Act relief on movants like Mr. Clowers. The question presented is: whether the Eleventh Circuit’s singular limitation on First Step Act relief contravenes both Terry’s element-based determination of eligibility, and Concepcion’s holding that, in deciding whether to reduce the sentence of an eligible defendant, courts may consider intervening changes of law? i INTERESTED PARTIES Pursuant to Sup. Ct. R. 14.1(b)(@), Mr. Clowers submits that there are no