Whether the Eleventh Circuit's unique interpretation of the First Step Act's eligibility and discretionary steps is correct

QUESTION PRESENTED Section 404 of the First Step Act of 2018 sets out two steps to determine whether the imposition of a reduced sentence is warranted for a defendant previously sentenced under unjust crack cocaine sentencing laws. First, Section 404(a) of the Act predicates a defendant’s eligibility to receive a reduced sentence on having a “covered offense.” In Terry v. United States, 141 S. Ct. 1858 (2021), this Court held: (a) whether a defendant has a “covered offense” is determined by the elements of the offense of conviction; and (b) any defendant sentenced for a crack cocaine offense under 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B), before August 3, 2010, has a “covered offense.” Second, in Concepcion v. United States, 142 S. Ct. 2389 (2022), the Court held that, at the second, discretionary step, under Section 404(b), district courts may consider intervening changes in fact or law, without limitation. The question presented is: Do this Court’s First Step Act precedents admit of the uniquely Eleventh Circuit’s intermediate step whereby, for the discrete group of individuals still serving sentences imposed before Apprendi v. New Jersey, 530 U.S. 446 (2000), the facts found by the judge at sentencing control the imprisonment range and thus render an individual who is “eligible” at step one, nevertheless ineligible for relief at the discretionary step two?! 1 This same question is also presented in Jackson v. United States, Case No. 22-7728; United States v. Perez, Case No. 22-7794; United States v. Clowers, Case No. 22-7783; Williams v. United States, No. 23-5014; Ingram v. United States, No. 23-341; and Harper v. United States, No. 23-27. These cases have been distributed for conference on January 5, 2024. 1