Chief Judge William Pryor, joined by Judge Grant, wrote separately in support of the Court's decision to deny rehearing en banc. More specifically, he wrote to respond to the dissent's arguments that the panel misread section 404(b) of the First Step Act. Chief Judge Pryor clarified that section 404(b) contains two implicit limits on the availability of relief: (1) the district court may not grant a reduction if the trafficker already received the lowest statutory penalty that would be available to him under the Fair Sentencing Act; and (2) the district court is bound by a previous finding of drug quantity that was used to determine the trafficker's statutory penalty at the time of sentencing. He believes the dissent reads these limits out of section 404(b), and in so doing, commits three errors of statutory interpretation--(1) it selectively fails to consider what the text of the First Step Act fairly implies;(2) it neglects to read section 404 in the light of the statutory scheme; and (3) it focuses on the general purpose of the First Step Act to the exclusion of its specific text.
Judge Martin, joined by Judge Rosenbaum, dissented from the denial of rehearing en banc. They argue that by attributing a drug amount to the defendant that was neither found by a jury nor charged in his indictment, the panel created a limit on First Step Act relief found nowhere in the text of the statute. As a result, the reach of the First Step Act has been curtailed in the Eleventh Circuit, creating a troubling disparity between defendants sentenced before and after Apprendi v. New Jersey, 530 U.S. 466 (2000).