United States v. Thomas Johnson

Case: 19-12847 Date Filed: 06/16/2020 Page: 1 of 34

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11505
________________________

D.C. Docket No. 1:94-cr-00067-WS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

STEVEN JONES,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_______________________

________________________

No. 19-10758
________________________

D.C. Docket No. 1:05-cr-20916-WPD-3
 Case: 19-12847 Date Filed: 06/16/2020 Page: 2 of 34

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

ALFONSO ALLEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_______________________

________________________

No. 19-11955
________________________

D.C. Docket No. 2:99-cr-14021-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

WARREN LAVELL JACKSON,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_______________________

2
 Case: 19-12847 Date Filed: 06/16/2020 Page: 3 of 34

________________________

No. 19-12847
________________________

D.C. Docket No. 1:08-cr-20190-JEM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

THOMAS JOHNSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_______________________

(June 16, 2020)

Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and JUNG, *
District Judge.

WILLIAM PRYOR, Chief Judge:

These appeals require us to determine whether the district courts erred in

denying four motions for reduced sentences under the First Step Act of 2018. That

Act permits district courts to apply retroactively the reduced statutory penalties for

*
Honorable William F. Jung, United States District Judge for the Middle District of
Florida, sitting by designation.

3
 Case: 19-12847 Date Filed: 06/16/2020 Page: 4 of 34

crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants sentenced

before those penalties became effective. Steven Jones, Alfonso Allen, Warren

Jackson, and Thomas Johnson were sentenced for crack-cocaine offenses before

the effective date of the Fair Sentencing Act and sought reduced sentences under

the First Step Act. The district courts denied their motions. We affirm the denials

of relief to Jones and Jackson, and we vacate the denials of relief to Allen and

Johnson and remand because their orders do not make clear that the district court

understood that it could reduce the movants’ sentences.

I. BACKGROUND

Steven Jones, Alfonso Allen, Warren Jackson, and Thomas Johnson each

relied on the First Step Act of 2018 to seek a sentence reduction in the district

courts. The district courts denied their motions. Because these appeals raise

common issues of first impression in our Circuit, we resolve them in one opinion.

In 1994, a grand jury charged Jones with conspiracy to possess with intent to

distribute “more than sixteen . . . kilograms of cocaine and of a mixture and

substance containing a detectable amount of [crack cocaine],” 21 U.S.C.

§§ 841(a)(1), 846, aiding and abetting possession with intent to distribute “more

than 600 grams of cocaine and of a mixture and substance containing a detectable

amount of [crack cocaine],” id. § 841(a)(1), and traveling in interstate commerce

with the intent to commit the crimes of “possession with intent to distribute and

4
 Case: 19-12847 Date Filed: 06/16/2020 Page: 5 of 34

distribution of crack cocaine,” id., and later did perform an unlawful activity of

distributing crack cocaine, 18 U.S.C. § 1952(a). A jury returned a general verdict

that found him guilty of all three counts. But the jury made no specific drug-

quantity finding because Jones was prosecuted before Apprendi v. New Jersey

made clear that drug-quantity findings that increase a defendant’s punishment must

be made by a jury based on a standard of proof of beyond a reasonable doubt. 530

U.S. 466, 490 (2000).

At sentencing, the district court found that Jones was responsible for at least

75 kilograms of crack cocaine. Jones’s statutory range for counts one and two was

10 years to life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (1994). His

guideline range, with a total offense level of 43 and a criminal history category of

I, was life imprisonment. The district court imposed a term of life imprisonment

for counts one and two, and a term of 60 months of imprisonment for count three,

all to run concurrently. It also imposed a five-year term of supervised release.

Jones later filed several unsuccessful challenges of his convictions and sentence.

In 2019, Jones filed a motion for a reduced sentence under the First Step

Act. He argued that he was eligible for a sentence reduction based on the statutory

penalties in section 841(b)(1)(C) because the district court could consider only the

drug quantity that a jury found beyond a reasonable doubt based on Alleyne v.

United States, which held that Apprendi applies to facts that increase a defendant’s

5
 Case: 19-12847 Date Filed: 06/16/2020 Page: 6 of 34

statutory mandatory-minimum sentence. 570 U.S. 99, 116 (2013). The district

court denied his motion. It ruled that Jones was responsible for at least 75

kilograms of crack cocaine, and the First Step Act did not allow him to relitigate

that finding. Jones filed a motion for reconsideration that again argued only that he

was entitled to relief because the district court must apply the reduced penalties in

section 841(b)(1)(C), and the district court denied that motion.

In 2006, a grand jury charged Allen with one count of conspiracy to

distribute 50 grams or more of crack cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii), 846 (2006), two counts of distributing a detectable amount of crack

cocaine, id. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 2, one count of possession with

intent to distribute a detectable amount of powder cocaine, crack cocaine, and

marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D); 18 U.S.C. § 2, possession of a

short-barreled shotgun in furtherance of a felony drug offense, 18 U.S.C. §§ 2,

924(c)(1)(A), (c)(1)(B)(i), possession of a firearm and ammunition by a convicted

felon, id. §§ 2, 922(g)(1), and possession of an unregistered short-barreled shotgun,

26 U.S.C. § 5861(d); 18 U.S.C. § 2. Before trial, the government filed notice of its

intent to rely on Allen’s two prior felony drug convictions to enhance his sentence.

See 21 U.S.C. § 851(a). A jury convicted Allen on all counts and made a drug-

quantity finding of 50 grams or more of crack cocaine for count one.

6
 Case: 19-12847 Date Filed: 06/16/2020 Page: 7 of 34

At sentencing, Allen’s conviction for conspiracy to distribute 50 grams or

more of crack cocaine carried a statutory mandatory sentence of life imprisonment

because of his two prior felony drug convictions. See id. § 841(b)(1)(A)(iii) (2006).

Allen’s criminal history classified him as a career offender under the Guidelines.

See United Sates Sentencing Guidelines Manual § 4B1.1(a) (Nov. 2008). With a

total offense level of 37 and a criminal history category of VI, id. § 4B1.1(b)(A),

Allen’s guideline range would have been 360 months to life imprisonment, but

because of his statutory mandatory sentence of life imprisonment, his guideline

sentence became life imprisonment, id. § 5G1.1(b). The district court sentenced

Allen to a term of life imprisonment for the count involving the 50 grams of crack

cocaine, 30 years of imprisonment for the other three drug counts, 10 years of

imprisonment for two of the firearm counts, all to run concurrently, and a

consecutive term of 10 years of imprisonment for the final firearm count. The

district court also imposed a 10-year term of supervised release. After Allen filed

several unsuccessful challenges to his convictions and sentence, the President

commuted his sentence to 360 months of imprisonment in 2016.

In 2019, Allen filed a motion for a reduced sentence under the First Step

Act. He argued that with the retroactive application of the Fair Sentencing Act and

his commutation, his statutory and guideline ranges would be lower than when he

was sentenced. The district court denied the motion and ruled that “[t]he

7
 Case: 19-12847 Date Filed: 06/16/2020 Page: 8 of 34

retroactive change in the law does not benefit Allen” because he had been

“responsible for selling between 420 and 784 grams of crack cocaine per week”

and would still be subject to a guideline range of 360 months to life imprisonment.

In 1999, a grand jury charged Jackson with one count of possessing with

intent to distribute more than 50 grams of crack cocaine, 21 U.S.C. § 841(a)(1).

Before trial, the government filed notice of its intent to rely on Jackson’s three

prior felony drug convictions to enhance Jackson’s sentence. See id. § 851(a). A

jury convicted Jackson without making a drug-quantity finding.

At sentencing, the district court found that Jackson was responsible for 287

grams of crack cocaine. Jackson faced a statutory mandatory sentence of life

imprisonment because of the drug quantity and his prior felony drug convictions.

See id. § 841(b)(1)(A)(iii) (1994). His guideline range would have been 235 to 293

months of imprisonment based on his total offense level of 34 and criminal history

category of V, but his statutory mandatory sentence of life imprisonment mandated

a guideline sentence of life imprisonment. See U.S.S.G. § 5G1.1(b) (1998). The

district court sentenced Jackson to life imprisonment. After Jackson filed multiple

unsuccessful challenges to his conviction and sentence, the President commuted

his sentence to 300 months of imprisonment in 2016.

In 2019, Jackson filed a motion for a reduced sentence under the First Step

Act. He argued that he was entitled to a reduced statutory range because the district

8
 Case: 19-12847 Date Filed: 06/16/2020 Page: 9 of 34

court set his statutory penalties based on a drug-quantity finding that the jury had

not found beyond a reasonable doubt. The district court relied on the drug-quantity

finding of 287 grams of crack cocaine to conclude that the Fair Sentencing Act

“would have had no impact on [Jackson’s] sentence,” and it denied the motion.

In 2008, a grand jury charged Johnson with possession with intent to

distribute five grams or more of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)

(2006), possession with intent to distribute a detectable amount of powder cocaine,

id. § 841(a)(1), (b)(1)(C), possession of a firearm and ammunition as a convicted

felon, 18 U.S.C. §§ 922(g)(1), 924(e), and knowingly using and carrying a firearm

in furtherance of drug-trafficking felonies, id. § 924(c)(1)(A). Before trial, the

government filed notice of its intent to rely on Johnson’s four prior felony drug

convictions to seek higher statutory penalties. See 21 U.S.C. § 851(a). A jury

convicted Johnson of each count other than the count for using a firearm in

furtherance of drug-trafficking felonies, and the jury found that his crack-cocaine

offense involved five or more grams of crack cocaine.

At sentencing, Johnson’s crack-cocaine count carried a statutory range of 10

years to life imprisonment because of the enhancement for his prior felony drug

convictions. See id. § 841(b)(1)(B)(iii) (2006). Those prior convictions also meant

the statutory range for his powder-cocaine count was zero to 30 years of

imprisonment. See id. § 841(b)(1)(C). His felon-in-possession count carried a

9
 Case: 19-12847 Date Filed: 06/16/2020 Page: 10 of 34

statutory range of 15 years to life imprisonment. See 18 U.S.C. § 924(e)(1). As a

career offender under the Guidelines, his guideline range was 360 months to life

imprisonment based on a total offense level of 37 and a criminal history category

of VI. See U.S.S.G. § 4B1.1(a), (b) (2007). The district court imposed three

concurrent 360-month terms of imprisonment, followed by an eight-year term of

supervised release. After Johnson filed several unsuccessful challenges to his

convictions and sentence, the President commuted his sentence to a term of 240

months of imprisonment in 2017.

In 2019, Johnson filed a motion for a reduced sentence under the First Step

Act in which he stressed the ways in which he has improved while in prison. The

district court denied his motion. It rejected arguments by the government that

Johnson was ineligible for a reduction because he was sentenced as a career

offender and received a commutation, and it concluded that his statutory penalties

would have been lower under the Fair Sentencing Act. But it ruled that “the First

Step Act affords no further relief to” Johnson because he “is already serving a

sentence below the bottom of the guideline range.”

II. STANDARD OF REVIEW

We review de novo questions of statutory interpretation, United States v.

Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009), and whether a district court had the

authority to modify a term of imprisonment, United States v. Phillips, 597 F.3d

10
 Case: 19-12847 Date Filed: 06/16/2020 Page: 11 of 34

1190, 1194 & n.9 (11th Cir. 2010). We review for abuse of discretion the denial of

an eligible movant’s request for a reduced sentence under the First Step Act. See

First Step Act of 2018, Pub. L. No. 115-391, § 404(b)–(c), 132 Stat. 5194, 5222

(stating that a district court “may” reduce a sentence but is not “require[d]” to do

so).

III. DISCUSSION

We divide our discussion in three parts. First, we describe how the disparity

in penalties for crack- and powder-cocaine offenses led Congress to enact the Fair

Sentencing Act. Second, we discuss the authority of a district court to reduce a

sentence under the First Step Act. Third, we conclude that the district courts did

not err in denying the motions of Jones and Jackson but that we must vacate the

orders denying Allen’s and Johnson’s motions and remand for further proceedings.

The parties now agree, as do we, that the movants who received an executive grant

of clemency—Allen, Jackson, and Johnson—are not ineligible for a reduction on

that basis, so we need not discuss that issue further.

A. The 100-to-1 Ratio for Crack- and Powder-Cocaine Offenses.

When the movants were sentenced, the statutory penalties for drug-

trafficking offenses involving crack cocaine were the same as the statutory

penalties for drug-trafficking offenses involving 100 times as much powder

cocaine. See Kimbrough v. United States, 552 U.S. 85, 91 (2007) (citing 21 U.S.C.

11
 Case: 19-12847 Date Filed: 06/16/2020 Page: 12 of 34

§ 841 (2006)). A statutory range of 10 years to life imprisonment applied to drug

traffickers dealing in 50 grams or more of crack cocaine or 5,000 grams or more of

powder cocaine. 21 U.S.C. § 841(b)(1)(A) (2006). A statutory range of five to 40

years of imprisonment applied to drug traffickers dealing in at least five grams of

crack cocaine or at least 500 grams of powder cocaine. Id. § 841(b)(1)(B). And a

statutory range of zero to 20 years of imprisonment applied to drug traffickers

dealing in less than five grams of crack cocaine or less than 500 grams of powder

cocaine. Id. § 841(b)(1)(C). Each subsection of the statute also provided for

increased statutory penalties based on certain factual predicates, such as prior

felony drug convictions. See id. § 841(b)(1)(A)–(C).

The United States Sentencing Commission condemned the disparity between

the penalties for crack- and powder-cocaine offenses. See, e.g., U.S. Sentencing

Comm’n, Report to the Congress: Cocaine and Federal Sentencing Policy 2, 7–8

(May 2007); U.S. Sentencing Comm’n, Special Report to the Congress: Cocaine

and Federal Sentencing Policy 1–2, 9 (Apr. 1997). “[T]o keep similar drug-

trafficking sentences proportional,” the Commission based the offense levels in the

Guidelines on the mandatory-minimum penalties in the statute, which, of course,

included the 100-to-1 ratio. Dorsey v. United States, 567 U.S. 260, 267–68 (2012).

But the Commission spent the next two decades urging Congress to amend those

penalties. Id. at 268; see also Kimbrough, 552 U.S. at 97–98. The Commission

12
 Case: 19-12847 Date Filed: 06/16/2020 Page: 13 of 34

argued that the harsher penalties for offenses involving crack instead of powder

cocaine were unjustified and undermined respect for the criminal justice system

because of the “widely-held perception” that the disparate penalties “promote[d]

unwarranted disparity based on race.” Kimbrough, 552 U.S. at 97–98 (internal

quotation marks omitted); accord Dorsey, 567 U.S. at 268; Rachel E. Barkow,

Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act

and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 215–16 (2019).

Congress amended the penalties for crack-cocaine offenses when it enacted

the Fair Sentencing Act of 2010. See Fair Sentencing Act of 2010, Pub. L. No.

111-220, 124 Stat. 2372 (2010). The Act increased the quantity of crack cocaine

necessary to trigger the higher penalties in subsections (b)(1)(A)(iii) and (B)(iii).

Fair Sentencing Act § 2(a). A defendant now must traffic at least 280 grams of

crack cocaine to trigger the highest penalties, 21 U.S.C. § 841(b)(1)(A)(iii) (2012),

and 28 grams of crack cocaine to trigger the intermediate penalties, id.

§ 841(b)(1)(B)(iii). See Fair Sentencing Act § 2(a). These amended penalties

reduced the crack-to-powder-cocaine ratio from 100-to-1 to 18-to-1. Dorsey, 567

U.S. at 269. The Act also eliminated the five-year mandatory-minimum sentence

that had applied to simple possession of crack cocaine. Fair Sentencing Act § 3;

see also 21 U.S.C. § 844(a) (2006). But the amended penalties applied only to

13
 Case: 19-12847 Date Filed: 06/16/2020 Page: 14 of 34

defendants who were sentenced on or after the effective date of the Fair Sentencing

Act. Dorsey, 567 U.S. at 264.

B. The First Step Act Permits District Courts to Reduce the Term of
Imprisonment for Certain Previously Sentenced Crack-Cocaine Offenders.

When Congress enacted the First Step Act of 2018, it granted district courts

discretion to reduce the sentences of crack-cocaine offenders in accordance with

the amended penalties in the Fair Sentencing Act. See First Step Act § 404. A

district court lacks the inherent authority to modify a term of imprisonment. 18

U.S.C. § 3582(c); United States v. Puentes, 803 F.3d 597, 606 (11th Cir. 2015).

But it may do so, as relevant here, to the extent that a statute expressly permits. 18

U.S.C. § 3582(c)(1)(B). And the First Step Act expressly permits district courts to

reduce a previously imposed term of imprisonment.

The First Step Act permits a district “court that imposed a sentence for a

covered offense” to “impose a reduced sentence as if sections 2 and 3 of the Fair

Sentencing Act . . . were in effect at the time the covered offense was committed.”

First Step Act § 404(b). It defines “covered offense” as “a violation of a Federal

criminal statute, the statutory penalties for which were modified by section 2 or 3

of the Fair Sentencing Act . . . that was committed before August 3, 2010.” Id.

§ 404(a). A district court may not “entertain a motion” from a defendant who

already benefitted from the Fair Sentencing Act by having his sentence imposed or

reduced “in accordance with” sections two or three of the Fair Sentencing Act. Id.

14
 Case: 19-12847 Date Filed: 06/16/2020 Page: 15 of 34

§ 404(c). Nor may a district court “entertain a motion” from a defendant who

already had a motion under section 404 of the First Step Act “denied after a

complete review of the motion on the merits.” Id. The Act makes clear that the

relief in subsection (b) is discretionary: “Nothing in this section shall be construed

to require a court to reduce any sentence pursuant to this section.” Id.

To be eligible for a reduction, the district court must have “imposed a

sentence” on the movant for a “covered offense.” Id. § 404(a)–(b). The First Step

Act defines covered offense as “a violation of a Federal criminal statute, the

statutory penalties for which were modified by section 2 or 3 of the Fair

Sentencing Act . . . , that was committed before August 3, 2010.” Id. § 404(a)

(emphasis added). The meaning of “covered offense” depends on what the clause

in italics—the “penalties clause”—modifies.

We see two possibilities. The penalties clause could modify the phrase

“violation of a Federal criminal statute.” Or it could modify only the shorter phrase

“Federal criminal statute.” See United States v. Johnson, 19-874, 2020 WL

3023063, at *7 (2d Cir. June 5, 2020); United States v. Boulding, No. 19-1590, 19-

1706, 2020 WL 2832110, at *6 (6th Cir. June 1, 2020); United States v. Shaw, 957

F.3d 734, 738 (7th Cir. 2020); United States v. Smith, 954 F.3d 446, 448–49 (1st

Cir. 2020); United States v. Jackson, 945 F.3d 315, 320 (5th Cir. 2019); United

15
 Case: 19-12847 Date Filed: 06/16/2020 Page: 16 of 34

States v. McDonald, 944 F.3d 769, 771–72 (8th Cir. 2019); United States v.

Wirsing, 943 F.3d 175, 185–86 (4th Cir. 2019).

The better reading is that the penalties clause modifies the whole phrase

“violation of a Federal criminal statute.” A violation of a federal criminal statute is

commonly called an “offense.” Offense, Black’s Law Dictionary (11th ed. 2019)

(“A violation of the law; a crime . . . .”). This definition makes sense because the

term we are defining is “covered offense.” See Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts § 36, at 232 (2012) (“[T]he word

being defined is the most significant element of the definition’s context.”); id.

(explaining that there is a presumption that legal drafters give defined words their

“general meaning” (internal quotation marks omitted)). A movant’s offense is a

covered offense if section two or three of the Fair Sentencing Act modified its

statutory penalties. Section two of the Fair Sentencing Act, the only section

applicable in these appeals, modified the statutory penalties for crack-cocaine

offenses that have as an element the quantity of crack cocaine provided in

subsections 841(b)(1)(A)(iii) and (B)(iii). It did so by increasing the quantity of

crack cocaine necessary to trigger those penalty provisions. See Fair Sentencing

Act § 2(a). So a movant has a “covered offense” if his offense triggered a statutory

penalty that has since been modified by the Fair Sentencing Act.

16
 Case: 19-12847 Date Filed: 06/16/2020 Page: 17 of 34

The alternative interpretation primarily relies on the nearest-reasonable-

referent canon, which provides that a “modifier normally applies only to the

nearest reasonable referent.” Scalia & Garner, Reading Law § 20, at 152. The

relevant modifier in the definition of “covered offense” is the penalties clause. The

movants argue that this canon suggests that the penalties clause modifies only the

phrase “Federal criminal statute” because that is the referent that immediately

precedes the penalties clause. See, e.g., Jackson, 945 F.3d at 320; Wirsing, 943

F.3d at 185. But that reading ignores the fact that the canon does “not appl[y]”

when a “modifier directly follows a concise and integrated clause,” Cyan, Inc. v.

Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1077 (2018) (internal quotation

marks omitted), such as “a violation of a Federal criminal statute,” see Scalia &

Garner, Reading Law § 20, at 152 (explaining that a modifier “applies only to the

nearest reasonable referent” (emphasis added)).

The decision of the Supreme Court in Cyan is instructive. In Cyan, the Court

interpreted a statutory provision that stated: “Any covered class action brought in

any State court involving a covered security, as set forth in subsection (b) of this

section, shall be removable to the Federal district court for the district in which the

action is pending, and shall be subject to subsection (b) of this section.” 138 S. Ct.

at 1075 (emphasis added) (quoting 15 U.S.C. § 77p(c)). Subsection (b) requires

dismissal of certain class actions—namely, those premised on state law that allege

17
 Case: 19-12847 Date Filed: 06/16/2020 Page: 18 of 34

misconduct related to securities—whether the class action is brought in state or

federal court. Id. at 1067, 1075 (citing 15 U.S.C. § 77p(b)). The Supreme Court

explained that the natural reading of the relevant statutory provision is that when a

class action set forth in subsection (b) is filed in state court, the defendant may

remove it to federal court to ensure compliance with the mandatory-dismissal

provision. Id. at 1075.

The Supreme Court rejected the government’s argument that the “rule of the

last antecedent” mandated a different interpretation. Id. at 1076 (internal quotation

marks omitted). The government contended that the “as-set-forth” clause did not

refer to the entire preceding clause but instead referred only to the immediately

preceding phrase “involving a covered security.” Id. (internal quotation marks

omitted). It argued that subsections (b)(1) and (b)(2) set forth specific types of

misconduct related to the sale of a covered security. Id. So the government argued

a covered class action that alleged the kind of misconduct in those subsections was

subject to removal, regardless of whether it was premised on state law, that is,

regardless of whether the class action was the type set forth in subsection (b). Id. In

rejecting that argument, the Supreme Court explained that the “as-set-forth” clause

“goes back to the beginning of the preceding clause” because the clause “hangs

together as a unified whole, referring to a single thing (a type of class action).” Id.

at 1077. The rule of the last antecedent was not to the contrary because that rule

18
 Case: 19-12847 Date Filed: 06/16/2020 Page: 19 of 34

does not apply “when the modifier directly follows a concise and integrated

clause.” Id. (internal quotation marks omitted). Contra Mellouli v. Lynch, 135 S.

Ct. 1980, 1989–90 (2015) (applying the canon to the long and segmented phrase

“convicted of a violation of . . . any law or regulation of a State, the United States,

or a foreign country relating to a controlled substance (as defined in [section] 802)”

to conclude that “relating to a controlled substance” did not reach all the way back

to modify “violation” (alteration adopted) (quoting 8 U.S.C. § 1227 (a)(2)(B)(i))).

In the definition of “covered offense,” the penalties clause directly follows

the concise and integrated clause “a violation of a Federal criminal statute.” The

clause refers to a single thing—a type of violation. Indeed, this clause functions as

a unified phrase elsewhere in the definition of covered offense. Recall, “covered

offense” means “a violation of a Federal criminal statute, the statutory penalties for

which were modified by section 2 or 3 of the Fair Sentencing Act . . . , that was

committed before August 3, 2010.” First Step Act § 404(a) (emphasis added). The

final clause modifies the unified phrase because one cannot “commit” a “Federal

criminal statute,” only a “violation of a Federal criminal statute.”

The alternative interpretation—that the penalties clause modifies only

“Federal criminal statute”—would mean that any movant sentenced for a drug-

trafficking offense would have a covered offense even if his offense did not

involve crack cocaine. Section 841 is the applicable drug-trafficking statute.

19
 Case: 19-12847 Date Filed: 06/16/2020 Page: 20 of 34

Subsection (a) provides that it is unlawful to traffic a variety of controlled or

counterfeit substances. See 21 U.S.C. § 841(a). Subsection (b) provides the

penalties for the various offenses involving those substances. See id. § 841(b). The

Fair Sentencing Act modified some of the penalties that apply to this statute—

whether defined as subsection (a) or the entire statute—by amending the quantity

of crack cocaine necessary to trigger the higher penalties in two provisions of

subsection (b). See Fair Sentencing Act § 2(a). So this alternative interpretation

would mean that a movant with any drug-trafficking offense—even, say, a heroin

offense—would have a “covered offense” because the movant violated section 841

and the Fair Sentencing Act modified some of the penalties that apply to section

841, even though the Act did not alter the penalties for heroin offenses. See Smith,

954 F.3d at 450 & n.5. In other words, this alternative interpretation would mean

that the First Step Act covers offenses unaffected by the Fair Sentencing Act.

Interpreting “Federal criminal statute” to mean “statutory provision” is not a

viable alternative. Some of our sister circuits have held that a movant has a covered

offense if he violated section 841(b)(1)(A)(iii) or (B)(iii). See Johnson, 2020 WL

3023063, at 7 n.6; Wirsing, 943 F.3d at 186. But it is unnatural to read these

subsections, which provide the penalties for violations of section 841(a) involving

crack cocaine, as being the “statute” to which the penalties clause refers, especially

because doing so requires concluding that the Fair Sentencing Act modified the

20
 Case: 19-12847 Date Filed: 06/16/2020 Page: 21 of 34

penalties that apply to these “statutes” by modifying the provisions themselves.

Our sister circuits attempt to avoid application of the First Step Act to movants

with offenses involving a controlled substance other than crack cocaine by

ignoring that drug-trafficking defendants who “violate” a penalty provision in

subsection 841(b) also violate section 841, a statute for which the Fair Sentencing

Act modified the statutory penalties.

Reading the penalties clause as modifying the unified phrase “violation of a

Federal criminal statute” avoids these oddities. It makes clear that the clause refers

to the crack-cocaine offenses for which sections 841(b)(1)(A)(iii) and (B)(iii)

provide the penalties. Those provisions are two of the statutory penalty provisions

that apply to violations of section 841(a), and they are the only provisions that the

Fair Sentencing Act modified. See 21 U.S.C. § 841(b); Fair Sentencing Act § 2(a);

see also Scalia & Garner, Reading Law § 2, at 56 (“[W]ords are given meaning by

their context, and context includes the purpose of the text[, which, of course,]

. . . must be derived from the text.”). Our interpretation leads to the same end result

as the interpretation by our sister circuits, but it does so in a way that is consistent

with the text and structure of section 404 of the First Step Act.

To be sure, the penalties clause uses the past tense—“were modified”—to

describe the effect that the Fair Sentencing Act had on the statutory penalties. And

the Fair Sentencing Act did not modify the penalties for any movant’s earlier

21
 Case: 19-12847 Date Filed: 06/16/2020 Page: 22 of 34

statutory violation because the Act did not apply retroactively. See Jackson, 945

F.3d at 320 (citing United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y.

2019)). But even so, the Fair Sentencing Act modified the statutory penalties for

certain crack-cocaine offenses (that is, covered offenses), which means the First

Step Act permits courts to review whether the Fair Sentencing Act altered the

penalties for the movant’s category of offense.

To determine the offense for which the district court imposed a sentence,

district courts must consult the record, including the movant’s charging document,

the jury verdict or guilty plea, the sentencing record, and the final judgment. From

these sources, the district court must determine whether the movant’s offense

triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii). If so, the

movant committed a covered offense.

We reject the argument by the government that a district court must

determine a movant’s “covered offense” by considering the specific quantity of

crack cocaine involved in the movant’s violation. The government argues that

because Congress used the term “violation” instead of “conviction,” “covered

offense” means all the movant’s conduct underlying the statutory violation, not

only the finding of drug quantity that triggered the statutory penalty. The

government would have courts consider a finding of drug quantity anywhere in the

22
 Case: 19-12847 Date Filed: 06/16/2020 Page: 23 of 34

record, such as a finding that was necessary for determining only relevant conduct

under the Sentencing Guidelines or a finding in a postsentencing proceeding.

That argument impermissibly isolates the word “violation” from its context,

which establishes that a covered offense is an offense. See First Step Act § 404(a).

Offenses are made up of elements. See Elements of Crime, Black’s Law Dictionary

(11th ed. 2019). The elements for the movants’ offenses are found in section 841.

And the specific elements in that statute that matter for eligibility under the First

Step Act are the two drug-quantity elements in sections 841(b)(1)(A)(iii) and

(b)(1)(B)(iii) because section two of the Fair Sentencing modified only offenses

that include one of those drug-quantity elements. When the movants committed

their offenses, the drug-quantity element in section 841(b)(1)(A)(iii) was 50 grams

or more of crack cocaine, and the drug-quantity element in section

841(b)(1)(B)(iii) was five grams or more of crack cocaine. The range for each

element meant that the movants did not need to be responsible for exactly 50 grams

or five grams of crack cocaine—any quantity in the range sufficed and the offense

would have as an element either 50 grams or more or five grams or more of crack

cocaine, respectively. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)

(explaining that some statutes “enumerate[] various factual means of committing a

single element”). The ranges did not create an infinite number of crack-cocaine

offenses based on the specific means by which the elements may be satisfied, such

23
 Case: 19-12847 Date Filed: 06/16/2020 Page: 24 of 34

as distribution of 750.25 grams of crack cocaine. The actual drug-quantity involved

in the movant’s offense is irrelevant as far as the element and the offense are

concerned. The actual quantity is only the means of satisfying the drug-quantity

element. See id. That quantity constitutes relevant conduct under the Sentencing

Guidelines, see U.S.S.G. § 1B1.3 (2018), but it does not define the offense.

Although we reject the argument that a movant’s covered offense is

determined by the actual quantity of crack cocaine involved in his violation, we

acknowledge that a district court, of course, could consider its previous findings of

relevant conduct in deciding whether to exercise its discretion to reduce an eligible

movant’s sentence under section 404(b) of the First Step Act. See First Step Act

§ 404(b). The actual quantity of crack cocaine involved in a violation is a key

factor for a sentence modification just as it is when a district court imposes a

sentence. See 18 U.S.C. § 3553(a)(1) (instructing district courts to consider the

nature and circumstances of the offense when imposing a sentence). But we do not

read the Act as allowing the district court to use its earlier findings of relevant

conduct that were unrelated to the movant’s statutory penalty to conclude that he

did not commit a covered offense. These determinations of whether a movant is

eligible for relief and whether to grant the movant relief are separate.

We also reject the movants’ argument that district courts may not, in making

the “covered offense” determination, consider a previous drug-quantity finding that

24
 Case: 19-12847 Date Filed: 06/16/2020 Page: 25 of 34

was necessary to trigger the statutory penalty if it was made by a judge. The

movants argue that when a jury did not make a drug-quantity finding, a district

court should consider only that the offense involved a detectable amount of crack

cocaine—punishable by section 841(b)(1)(C)—regardless of the statutory penalty

that the district court applied at sentencing. To be sure, we now understand that a

jury was constitutionally required to find the nature and quantity of the controlled

substance involved in the offense if that finding increased the statutory penalty. See

Apprendi, 530 U.S. at 490; see also Danforth v. Minnesota, 552 U.S. 264, 271

(2008) (“[T]he source of a ‘new rule’ is the Constitution itself, not any judicial

power to create new rules of law. Accordingly, the underlying right necessarily

pre-exists our articulation of the new rule.”); cf. Lester v. United States, 921 F.3d

1306, 1312–15 (11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en

banc) (explaining that the Guidelines were never truly mandatory because that

practice always violated the Sixth Amendment). But just as a movant may not use

Apprendi to collaterally attack his sentence, see McCoy v. United States, 266 F.3d

1245, 1258 (11th Cir. 2001), he cannot rely on Apprendi to redefine his offense for

purposes of a First Step Act motion. Moreover, taken to its logical end, the

movants’ argument would mean that a movant convicted before Apprendi is

ineligible for relief under the First Step Act because the Fair Sentencing Act did

25
 Case: 19-12847 Date Filed: 06/16/2020 Page: 26 of 34

not modify the statutory penalties for offenses involving only a detectable amount

of crack cocaine.

All four of the movants were sentenced for a covered offense. The district

court sentenced Jones for, among others, the offenses of conspiracy to possess with

intent to distribute 50 grams or more of crack cocaine and possession with intent to

distribute 50 grams or more of crack cocaine. Those offenses were charged in his

superseding indictment as conspiracy to possess with intent to distribute more than

16 kilograms of powder and crack cocaine and possession with intent to distribute

more than 600 grams of powder and crack cocaine. But the final judgment lists

both offenses as solely crack-cocaine offenses, and the district court’s drug-

quantity finding involved only crack cocaine. The record establishes that the

district court treated both counts as crack-cocaine offenses when it “imposed a

sentence” on Jones. See First Step Act § 404(b) (explaining that the district court

must have “imposed a sentence for a covered offense”). The Fair Sentencing Act

modified the statutory penalties for offenses like Jones’s that involve 50 grams or

more of crack cocaine from 10 years to life imprisonment to five to 40 years of

imprisonment. Compare 21 U.S.C. § 841(b)(1)(A)(iii) (1994), with id.

§ 841(b)(1)(B)(iii) (2012). Jones’s offenses qualify as covered offenses.

The district court sentenced Allen for, among others, the offense of

conspiracy to distribute 50 grams or more of crack cocaine. That offense was

26
 Case: 19-12847 Date Filed: 06/16/2020 Page: 27 of 34

charged in his indictment and found by a jury. The statutory penalty for that

offense was originally life imprisonment because of Allen’s two prior felony drug

convictions. See id. § 841(b)(1)(A)(iii) (2006). Under the Fair Sentencing Act, that

same offense would lead to a statutory range of 10 years to life imprisonment. See

id. § 841(b)(1)(B)(iii) (2012). The larger quantity of crack cocaine that the district

court found—“between 420 and 784 grams of crack cocaine per week”—did not

trigger the statutory penalty for Allen’s offense. Because the Fair Sentencing Act

modified the statutory penalties for Allen’s offense, he has a “covered offense.”

The district court sentenced Jackson for the offense of possession with intent

to distribute 50 grams or more of crack cocaine. Jackson’s indictment charged him

with that offense, and although the jury did not make a drug-quantity finding, the

district court found at sentencing a drug quantity of at least 50 grams of crack

cocaine. The statutory penalty for Jackson’s offense was originally life

imprisonment because of Jackson’s drug quantity and three prior felony drug

convictions. See id. § 841(b)(1)(A)(iii) (1994). The Fair Sentencing Act modified

the penalties for his offense to be 10 years to life imprisonment. See id.

§ 841(b)(1)(B)(iii) (2012). Jackson has a covered offense.

The district court sentenced Johnson for, among others, the offense of

possession with intent to distribute five grams or more of crack cocaine. That is the

offense in his indictment and found by a jury. Because of Johnson’s four prior

27
 Case: 19-12847 Date Filed: 06/16/2020 Page: 28 of 34

felony drug convictions, the statutory penalty for his offense was 10 years to life

imprisonment. See id. § 841(b)(1)(B)(iii) (2006). After the Fair Sentencing Act, the

statutory range for that same offense changed to zero to 30 years of imprisonment.

See id. § 841(b)(1)(C) (2012). Because the Fair Sentencing Act modified the

statutory penalties for Johnson’s offense, he too has a “covered offense.”

The movants all have a “covered offense” because the district court

sentenced them for violations of section 841 for which the Fair Sentencing Act

modified the statutory penalties. But a movant’s satisfaction of the “covered

offense” requirement does not necessarily mean that a district court can reduce his

sentence. Any reduction must be “as if sections 2 and 3 of the Fair Sentencing Act

. . . were in effect at the time the covered offense was committed.” First Step Act

§ 404(b).

This “as-if” requirement imposes two limits relevant to these appeals. First,

it does not permit reducing a movant’s sentence if he received the lowest statutory

penalty that also would be available to him under the Fair Sentencing Act. Second,

in determining what a movant’s statutory penalty would be under the Fair

Sentencing Act, the district court is bound by a previous finding of drug quantity

that could have been used to determine the movant’s statutory penalty at the time

of sentencing.

28
 Case: 19-12847 Date Filed: 06/16/2020 Page: 29 of 34

If the movant’s sentence would have necessarily remained the same had the

Fair Sentencing Act been in effect, then the district court lacks the authority to

reduce the movant’s sentence. Any reduction the district court would grant would

not be “as if” the Fair Sentencing Act had been in effect. That is, the First Step Act

does not permit a reduction when the Fair Sentencing Act could not have

benefitted the movant.

To be clear, the Constitution does not prohibit district courts, in deciding

motions for reduced sentences under the First Step Act, from relying on earlier

judge-found facts that triggered statutory penalties that the Fair Sentencing Act

later modified. In determining what a movant’s statutory penalties would be under

the Fair Sentencing Act, the district court is not increasing the movant’s penalty. It

is either maintaining the movant’s penalty or decreasing it. See Alleyne, 570 U.S.

at 103 (“[A]ny fact that increases the mandatory minimum is an ‘element’ that

must be submitted to the jury.” (emphasis added)); Apprendi, 530 U.S. at 490

(“Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” (emphasis added)); cf. Dillon v. United States,

560 U.S. 817, 825, 828–29 (2010) (holding that the Sixth Amendment does not bar

a district court from finding facts that determine a mandatory guideline range in a

section 3582(c)(2) proceeding). And unlike the statutory penalties that applied

29
 Case: 19-12847 Date Filed: 06/16/2020 Page: 30 of 34

when the movants were originally sentenced, the amended statutory penalties in

the First Step Act apply to the movants as an act of legislative grace left to the

discretion of the district court.

C. The District Courts Did Not Err in Denying the Motions of Jones and
Jackson but May Have Erred in Denying the Motions of Allen and Johnson.

The district courts did not err in denying the motions of Jones and Jackson.

When the district court sentenced Jones, its drug-quantity finding of 75 kilograms

of crack cocaine subjected Jones to a statutory range of 10 years to life

imprisonment. The only argument Jones made that the First Step Act entitled him

to a reduced sentence was that the absence of a drug-quantity finding by the jury

meant that his statutory range should be zero to 20 years of imprisonment. The

district court did not err in refusing to allow Jones to relitigate his drug-quantity

finding. Jackson was sentenced to a statutory mandatory sentence of life

imprisonment based on a drug-quantity finding of 287 grams of crack cocaine and

his three prior felony drug convictions. The district court correctly concluded that

it could not reduce Jackson’s sentence because his drug-quantity finding meant that

he would face the same statutory penalty of life imprisonment under the Fair

Sentencing Act. See 21 U.S.C. § 841(b)(1)(A)(iii) (2012).

The district court had the discretion to reduce the sentences of Allen and

Johnson. At their sentencings, the district court determined their statutory penalties

based on the drug quantities that the juries found beyond a reasonable doubt. The

30
 Case: 19-12847 Date Filed: 06/16/2020 Page: 31 of 34

jury in Allen’s trial found a drug quantity of 50 grams or more of crack cocaine.

And Johnson’s jury found a drug quantity of five grams or more of crack cocaine.

Allen’s and Johnson’s statutory ranges would have been lower if the Fair

Sentencing Act had been in effect when they committed their offenses. Allen’s

statutory range would have been 10 years to life imprisonment instead of a

mandatory sentence of life imprisonment. Compare id. § 841(b)(1)(A)(iii) (2006),

with id. § 841(b)(1)(B)(iii) (2012). And Johnson’s statutory range would have been

zero to 30 years of imprisonment instead of 10 years to life imprisonment.

Compare id. § 841(b)(1)(B)(iii) (2006), with id. § 841(b)(1)(C) (2012).

The district court had the authority to reduce Allen’s and Johnson’s

sentences, but it was not required to do so. The First Step Act states that “[n]othing

in this section shall be construed to require a court to reduce any sentence pursuant

to this section.” First Step Act § 404(c). District courts have wide latitude to

determine whether and how to exercise their discretion in this context. In

exercising their discretion, they may consider all the relevant factors, including the

statutory sentencing factors, 18 U.S.C. § 3553(a). See United States v. Allen, 956

F.3d 355, 357 (6th Cir. 2020). A district court abuses its discretion when it “applies

an incorrect legal standard.” Diveroli v. United States, 803 F.3d 1258, 1262 (11th

Cir. 2015) (internal quotation marks omitted).

31
 Case: 19-12847 Date Filed: 06/16/2020 Page: 32 of 34

The order denying relief to Allen is ambiguous as to whether the district

court understood that it could reduce Allen’s sentence. As a reminder, the district

court sentenced Allen to a statutory mandatory sentence of life imprisonment, and

the President later commuted his sentence to 360 months of imprisonment. In

denying Allen’s motion, the district court explained that “[t]he retroactive change

in the law does not benefit Allen” because it “found that Allen was responsible for

selling between 420 and 784 grams of crack cocaine per week. As a career

offender, Allen would still score out to a Level 37, with a Criminal History

Category Six for a range of 360 months-life.”

The district court might have incorrectly concluded that Allen was ineligible

for a reduction either because of the drug-quantity finding or because of his

designation as a career offender. The government stated at oral argument that it

viewed the district court as ruling that it lacked the authority to reduce Allen’s

sentence. Allen’s commuted sentence is at the bottom of the guideline range,

which may have caused the district court to conclude that Allen was ineligible for a

further reduction to his sentence. So we vacate the order and remand for further

consideration.

The order denying relief to Johnson is also ambiguous as to whether the

district court understood its authority to reduce Johnson’s sentence below the

revised guideline range. As a reminder, the district court sentenced Johnson as a

32
 Case: 19-12847 Date Filed: 06/16/2020 Page: 33 of 34

career offender to 360 months of imprisonment, and the President later commuted

his sentence to 240 months of imprisonment. In denying Johnson’s motion, the

district court correctly rejected arguments by the government that Johnson was

ineligible for a reduced sentence because of his commutation and career-offender

status. It then explained that Johnson “appear[ed] eligible for relief” but that

“[n]otwithstanding the statutory revisions, all parties appear to agree” that because

of the commutation, Johnson’s sentence is already nearly two years less than the

bottom of his revised guideline range. The district court concluded by “find[ing]

that the First Step Act affords no further relief to [Johnson] in this case.”

We cannot be sure that the district court understood its authority to reduce

Johnson’s sentence below the revised guideline range. The ambiguous phrase that

the First Step Act “affords no further relief” leaves us unsure of the grounds for the

ruling. The government erroneously argued in the district court that Johnson was

ineligible for a reduction because his sentence was already below the revised

guideline range. If the district court ruled that it could not grant Johnson’s motion,

that ruling would be erroneous because neither the First Step Act nor section

3582(c)(1)(B) barred the district court from reducing Johnson’s sentence below the

revised guideline range. It is also possible that the district court correctly

understood that it could reduce Johnson’s sentence but chose not to because

Johnson’s commutation already afforded him what it believed to be sufficient

33
 Case: 19-12847 Date Filed: 06/16/2020 Page: 34 of 34

relief. We cannot tell which of these readings is correct, so we vacate the order and

remand for further proceedings.

IV. CONCLUSION

We AFFIRM the orders denying Jones’s and Jackson’s motions to reduce

their sentences. We VACATE the orders denying Allen’s and Johnson’s motions

and REMAND for further proceedings.

34