Sentencing; Whether defendant’s plea agreement waived his right to challenge his drug-distributing sentence under the First Step Act; United States v. McGilvery; United States v. Murdock; United States v. Calderon; United States v. Fleming; Whether the First Step Act modified 21 USC § 841(b)(1)(C); United States v. Wiseman

The court held that defendant-Smith was not entitled to a sentence reduction under the First Step Act where he waived his right to appeal his sentence in a valid Rule 11 plea agreement. It added that even if he had not waived this challenge, the court previously held that the First Step Act does not apply to § 841(b)(1)(C), the statute under which he was sentenced. Smith challenged his 150-month sentence, arguing that the district court should have applied the First Step Act when sentencing him. The court first held that Smith’s plea was “knowing and voluntary.” It then considered the waiver itself, which “waived all grounds for appeal save for five specific instances: 1) his sentence, if he was sentenced above the agreed-upon statutory maximum, 2) his sentence, if he was sentenced above the agreed-upon Guideline range, 3) his career-offender status, ineffective counsel, and 5) prosecutorial abuse.” Because the First Step Act issue was not one of the five grounds, the court held that Smith waived his right to appeal this issue. It also noted that under Wiseman, “the First Step Act did not modify § 841(b)(1)(C), the section at issue here.” Affirmed.