Under the First Step Act of 2018, courts may reduce certain previously imposed sentences to match the penalties in the Fair Sentencing Act of 2010. The First Step Act describes a two-step process. First, the court determines whether the defendant is eligible for relief by considering whether he was sentenced for an offense whose "elements" now result in a "statutory penalt[y]" that was "modified" by the Fair Sentencing Act. Terry v. United States, 141 S. Ct. 1858, 1862-63 (2021). Second, if a defendant is eligible, then the court can exercise its discretion to impose a reduced sentence, "consider[ing] intervening changes of law or fact." Concepcion v. United States, 142 S. Ct. 2389, 2404 (2022).

The Eleventh Circuit—alone among its sister circuits—nevertheless holds that, for defendants sentenced before Apprendi v. New Jersey, 530 U.S. 466 (2000), district courts must define the defendant's "offense" by creating a hypothetical element of the offense based on the drug quantity found by the judge at sentencing. This actual-drug-quantity-based "offense" then determines what a defendant's statutory penalty would be "as if" the Fair Sentencing Act was in place when the defendant committed the offense. See United States v. Jackson, 58 F.4th 1331 (11th Cir. 2023).

The questions presented are:

1. Whether the Eleventh Circuit has violated Terry in holding that, at step one, district courts should disregard the "elements" of a defendant's offense, and deny relief based on the drug quantity found by a judge at sentencing?

2. Whether the Eleventh Circuit has violated Concepcion in holding that, at step two, district courts cannot consider an "intervening change[ ] of law": Apprendi's effect on a pre-Apprendi defendant's sentence?

Whether the Eleventh Circuit has violated Terry in holding that, at step one, district courts should disregard the 'elements' of a defendant's offense, and (i) ll deny relief based on the drug quantity found by a judge at sentencing?