USCA11 Case: 20-13296       Date Filed: 05/11/2021   Page: 1 of 6



                                                       [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 20-13296
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:99-cr-00125-KMM-11


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
                         ________________________

                                  (May 11, 2021)

Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

      Michael Harper appeals the district court’s denial of relief under the First

Step Act. Because the district court did not abuse its discretion, we affirm.
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                                          I.

      In 2000, a jury found Harper guilty of one count of conspiracy to possess

with intent to distribute cocaine powder and cocaine base in violation of 

(a)(1) and 846. The district court sentenced Harper to life imprisonment,

which was the statutory maximum and the U.S. Sentencing Guidelines Manual

sentence. See 

(b)(1) (2000); U.S.S.G. § 2A1.1 (2000). This

Circuit affirmed his conviction and sentence on direct appeal. See United States v.

Baker, 

 (11th Cir. 2005).

      After the First Step Act was enacted, Harper filed a motion to reduce his

sentence, citing developments in the law that changed the applicable statutory

penalty. The district court denied his motion, determining that he was ineligible

for a sentence reduction because his guideline range had not changed. He then

moved for reconsideration of that order; following this Court’s decision in United

States v. Jones, both parties filed supplemental briefing on the issue. See 

 (11th Cir. 2020). The district court again denied relief; this time it concluded

that Harper was eligible for a sentence reduction, but denied relief because a

“downward departure” from the Guidelines recommended sentence would be

inappropriate.

      This appeal followed.




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                                          II.

      We review the district court’s denial of an eligible movant’s request for a

reduced sentence under the First Step Act for abuse of discretion. Jones, 

.

                                          III.

      Harper first contends that the district court mistakenly found him ineligible

for relief, pointing to its statement that he was not “entitled” to a sentence

reduction. But being “entitled” to a discretionary form of relief is not the same as

being “eligible,” and the district court clearly concluded that Harper was eligible

for a reduction. After discussing this Court’s decision in Jones, the court stated

that Harper had a “covered offense” because the district court sentenced him for a

violation of § 841 for which section two of the Fair Sentencing Act modified the

statutory penalties. See 

; see also First Step Act § 404(a).

Specifically, the court noted that his offense involved crack cocaine and triggered

the higher penalties provided for in § 841(b)(1)(A)(iii). Unlike its initial order, the

court’s final order did not imply that eligibility turned on whether the guideline

range had changed; instead, the court discussed Harper’s guideline range only to




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explain why it was declining to exercise its discretion to reduce his sentence below

that recommendation. 1

       Next, Harper contends that the court abused its discretion by not discussing

the 

(a) factors when denying his motion. Although courts are

required to consider the § 3553(a) factors at the initial sentencing, we have not yet

decided whether courts must consider them when deciding a motion to reduce a

sentence under the First Step Act. Cf. Jones, 

. No matter. We

need not decide this question to resolve Harper’s appeal because even if the district

court was required to look at the § 3553(a) factors, we conclude that it did so here.

       When a court is required to consider the § 3553(a) factors, it does not err by

failing to specifically articulate the applicability of each factor. United States v.

Eggersdorf, 

 (11th Cir. 1997). Instead, it is enough if the

record taken as a whole demonstrates that the court took into account the pertinent

factors. 

 Where the parties discuss the applicable § 3553(a) factors in their

briefing, the district court’s statement that it considered those submissions is

sufficient to demonstrate that it took the statutory factors into account before

making its decision. Id. at 1322–23; see also United States v. Smith, 

,

927–28 (11th Cir. 2009).


1
  Harper argues that the district court erroneously thought the Guidelines were mandatory. But
the district court’s order says the opposite: “Even if the life sentence provided in § 2A1.1 is not
mandatory, the Court finds that a downward departure would be inappropriate.”
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      Though the district court did not explicitly mention § 3553(a) in its order,

the record reflects that the district court took the relevant factors into account. The

court’s final order stated that it considered Harper’s motions and both parties’

supplemental briefing; those filings discussed the applicable § 3553(a) factors. See

Eggersdorf, 126 F.3d at 1322–23. In fact, as Harper himself admits, his filings

offered the court “substantial information regarding those factors.” What’s more,

the court discussed the applicability of U.S.S.G. § 2A1.1 and calculated Harper’s

guideline range, a relevant factor under § 3553(a)(4). Even further, the judge who

denied this motion was the same judge who presided over Harper’s trial and

original sentencing. He had already heard and considered arguments regarding the

nature and circumstances of the offense and Harper’s criminal history, relevant

under § 3553(a)(1). See Eggersdorf, 

. So viewed as a whole, the

record reflects that the district court adequately considered the § 3553(a) factors

before denying Harper’s motion. Smith, 568 F.3d at 927–28.

      To the extent that Harper argues that the district court erred in its ultimate

decision to deny relief, that challenge also fails. District courts have “wide

latitude” to determine whether and how to exercise their discretion to reduce a

sentence under the First Step Act; nothing requires a court to reduce a defendant’s

sentence. Jones, 

. And because of the considerable discretion




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courts receive, we cannot say that the district court abused its discretion in

determining that a below-Guidelines sentence would be inappropriate. 2

       AFFIRMED.




2
  Harper also asks this Court to reconsider its holding in Jones that, in deciding motions for
reduced sentences under the First Step Act, district courts can rely on earlier judge-found facts
that triggered statutory penalties. See 

. But we cannot reconsider that holding.
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 this Court sitting en banc.
United States v. Batson, 

 (11th Cir. 2016).
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