In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3465
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL R. HOGSETT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 05-cr-30196 — Staci M. Yandle, Judge.
____________________
ARGUED OCTOBER 2, 2020 — DECIDED DECEMBER 7, 2020
____________________
Before RIPPLE, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Samuel Hogsett was sentenced to
nearly thirty years in prison after a jury convicted him of three
crimes. One of those crimes was possession of crack cocaine
with intent to distribute. 21 U.S.C. § 841(a)(1), (b)(1)(C).
Since Hogsett’s sentencing, Congress has passed two
laws—the Fair Sentencing Act of 2010 and the First Step Act
of 2018—which permit federal inmates to seek a sentence
2 No. 19-3465
reduction for certain “covered offenses.” Hogsett argues, and
we agree, that possession with intent to distribute crack co-
caine, in violation of § 841(a)(1), (b)(1)(C), is a covered offense.
Accordingly, we reverse the district court’s conclusion to the
contrary and remand for the district court to reconsider
Hogsett’s sentence.
I. BACKGROUND
During a traffic stop on July 16, 2005, law enforcement
searched Samuel Hogsett’s vehicle and discovered two bags
of crack cocaine and a firearm. After his trial in 2007, a jury
convicted Hogsett of three crimes:
• Count 1: being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1);
• Count 2: possessing with intent to distribute 0.5 grams
of a mixture or substance containing cocaine base, 21
U.S.C. § 841(a)(1), (b)(1)(C);
• Count 3: possessing a firearm during and in relation
to a drug-trafficking crime, 18 U.S.C. § 924(c)(1).
At Hogsett’s sentencing in April 2007, the district court
found that Hogsett’s relevant conduct was approximately
21.5 grams of crack cocaine—0.5 grams from the vehicle
search and 21 grams from prior, noncharged instances of traf-
ficking. The court sentenced him to 355 months’ imprison-
ment: 295 months on Count 1, 240 months concurrently on
Count 2, and 60 months consecutively on Count 3.
Three years later, Congress passed the Fair Sentencing Act
of 2010, reducing the crack-to-powder penalty disparity from
100:1 to 18:1. Pub. L. No. 111-220, 124 Stat. 2372 (2010);
Dorsey v. United States, 567 U.S. 260, 263–64 (2012). And in
2018, Congress made this reduction retroactive when it
No. 19-3465 3
enacted the First Step Act of 2018, permitting district courts to
reduce the sentences of defendants convicted of a “covered
offense” before August 3, 2010. Pub. L. No. 115-391, 132 Stat.
5194 (2018).
In 2019, Hogsett filed a motion for resentencing pursuant
to § 404 of the First Step Act. The district court denied his mo-
tion and concluded that Hogsett’s crime under 21 U.S.C.
§ 841(a)(1), (b)(1)(C) is not a “covered offense.” Hogsett now
appeals.
II. ANALYSIS
The sole issue on appeal is whether Hogsett’s crime of pos-
sessing with intent to distribute 0.5 grams of crack cocaine is
a “covered offense” under the First Step Act. We review this
question of statutory interpretation de novo. United States v.
Shaw, 957 F.3d 734, 738 (7th Cir. 2020).
Under the First Step Act, “[a] court that imposed a sen-
tence for a covered offense may … impose a reduced sentence
as if sections 2 and 3 of the Fair Sentencing Act of 2010 were
in effect at the time the covered offense was committed.” First
Step Act, § 404(b) (citation omitted). “[T]he term ‘covered of-
fense’ means a violation of a Federal criminal statute, the stat-
utory penalties for which were modified by section 2 or 3 of
the Fair Sentencing Act of 2010.” Id. § 404(a). So, to determine
whether Hogsett’s crime for possession of 0.5 grams of crack
cocaine with intent to distribute is a “covered offense,” we
must determine (1) the exact “criminal statute” that Hogsett
was convicted of violating and (2) whether its “statutory pen-
alties” were “modified by sections 2 or 3 of the Fair Sentenc-
ing Act of 2010.”
4 No. 19-3465
A. Hogsett was convicted under 21 U.S.C. § 841(a)(1) and
(b)(1)(C) for possessing with intent to distribute 0.5 grams of crack
cocaine
Hogsett and the government disagree about which subsec-
tions of 21 U.S.C. § 841 matter for analysis under the First Step
Act. Section 841(a)(1) identifies Hogsett’s unlawful conduct—
“it shall be unlawful for any person knowingly or intention-
ally … [to] possess with intent to … distribute … a controlled
substance.” Then, § 841(b)(1)(C) specifies Hogsett’s penalty
for that conduct based on the quantity of the controlled sub-
stance involved—“[i]n the case of a controlled substance in
schedule I or II, … except as provided in subparagraphs (A),
(B), and (D), such person shall be sentenced to a term of im-
prisonment of not more than 20 years … .” Hogsett argues
that either § 841(a) alone or § 841 as a whole is the statute of
conviction, while the government maintains that the statute
of conviction must also include the quantity provision—here,
§ 841(b)(1)(C).
The Supreme Court has held that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.”
Alleyne v. United States, 570 U.S. 99, 103 (2013). So the quantity
of a controlled substance involved in an offense under § 841
is an element that the government must prove beyond a rea-
sonable doubt at trial—in other words, the quantity is part of
the offense. United States v. Birt, 966 F.3d 257, 261–62 (3d Cir.
2020) (“[U]nder Alleyne, any fact that legally requires an in-
creased penalty is an element of the substantive crime itself.
And if it is necessary to prove different facts for there to be
different penalties, then there are different crimes, not merely
the same crime with different penalties.”). We came to the
No. 19-3465 5
same conclusion in Shaw, determining that “[t]he relevant
provision of the Fair Sentencing Act of 2010, section 2, …
broadly modified penalties for entire categories of offenses
that include fixed aggravating elements, such as the weight of
the drug.” 957 F.3d at 739. But see United States v. Smith, 954
F.3d 446, 449 (1st Cir. 2020) (“The relevant statute that Smith
violated is either § 841 as a whole, or § 841(a), which describes
all the conduct necessary to violate § 841.”). Thus, Hogsett’s
statute of conviction is not § 841(a) or § 841 as a whole, as
Hogsett argues. Rather, the statute of conviction includes
§ 841(a)(1) and § 841(b)(1)(C)—both the conduct and the
quantity provisions.
B. The statutory penalties for Hogsett’s statute of conviction,
§ 841(a)(1), (b)(1)(C), were modified by section 2 of the Fair Sen-
tencing Act
As a reminder, for Hogsett’s crime under § 841(a)(1),
(b)(1)(C) to be a “covered offense” under the First Step Act,
the statutory penalty for that crime must have been “modified
by sections 2 or 3 of the Fair Sentencing Act of 2010.” First Step
Act, § 404(a). Hogsett and the government disagree about
whether the Fair Sentencing Act “modified” Hogsett’s statu-
tory penalty as set out in § 841(b)(1)(C).
The Fair Sentencing Act helped level the disparity be-
tween the penalties for crack-cocaine and powder-cocaine of-
fenses set forth in § 841(b)(1)(A), (B), and (C). Dorsey, 567 U.S.
at 268–69. Before Congress passed the Fair Sentencing Act,
convictions involving 50 grams or more of crack cocaine were
subject to § 841(b)(1)(A)(iii)’s penalty range of 10 years to life
imprisonment. Convictions involving 5 grams or more were
subject to § 841(b)(1)(B)(iii)’s penalty range of 5 to 40 years.
And convictions involving unspecified quantities or specified
6 No. 19-3465
quantities “except as provided in subparagraphs (A), (B), and
(D)”1 were subject to § 841(b)(1)(C)’s penalty range of 0 to 20
years. 21 U.S.C. § 841 (2006).
Section 2 of the Fair Sentencing Act increased the quanti-
ties of crack cocaine that trigger the respective penalties. Shaw,
957 F.3d at 737. Now, § 841(b)(1)(A)(iii) applies to convictions
involving 280 grams or more of controlled substances, and
§ 841(b)(1)(B)(iii) applies to convictions involving 50 grams or
more. Section 841(b)(1)(C) continues to apply to convictions
involving unspecified quantities and specified quantities not
“provided in subparagraphs (A), (B), and (D).” 21 U.S.C. § 841
(2012).
The crux of the issue here is whether the Fair Sentencing
Act “modified” § 841(b)(1)(C) even though it did not alter its
text. In ordinary speech, “‘[m]odify’ … connotes moderate
change.” MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 228 (1994); see also United States v. Woodson, 962 F.3d 812,
816 (4th Cir. 2020) (citing Webster’s Third New International
Dictionary 1452 (2002) (“to make minor changes in the form
or structure of: alter without transforming”); 9 Oxford Eng-
lish Dictionary 952 (2d ed. 2004) (“[t]o make partial changes
in”); Black’s Law Dictionary 1157 (10th ed. 2014) (“[t]o make
somewhat different; to make small changes to (something) by
way of improvement, suitability, or effectiveness”)).
The First and Fourth Circuits have applied the broad def-
inition to conclude that the Fair Sentencing Act did modify
§ 841(b)(1)(C) “when [it] changed the quantities of crack co-
caine to which Subsection 841(b)(1)(C) applies.” Woodson, 962
1 21 U.S.C. § 841(b)(1)(D) is not relevant to our analysis; it describes
the penalty for certain offenses involving marijuana.
No. 19-3465 7
F.3d at 816–17; Smith, 954 F.3d at 450. The Third Circuit, on
the other hand, defined “modify” more narrowly, determin-
ing that “[s]ince ‘modify’ and ‘change’ are close synonyms,
something that is completely unchanged has not, in ordinary
parlance, been ‘modified.’” Birt, 966 F.3d at 260. And the Third
Circuit concluded, as the government argues now, that the
Fair Sentencing Act did not “modify” § 841(b)(1)(C) because
it “remains the same to the last letter.” Id.
We respectfully disagree with the Third Circuit’s ap-
proach. Congress chose the word “modified,” and “[u]nless
otherwise defined, statutory terms are generally interpreted
in accordance with their ordinary meaning.”
BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (citing Per-
rin v. United States, 444 U.S. 37, 42 (1979)). Therefore, we do
not think that a “modification” must be limited to solely tex-
tual alterations; instead, any “moderate change,” MCI Tele-
comms. Corp., 512 U.S. at 228, will suffice. And, as we’ve stated
before, “the Fair Sentencing Act changed the quantity that
triggers certain penalties of imprisonment,” Shaw, 957 F.3d at
737, including the penalties under § 841(b)(1)(C).
Before the Fair Sentencing Act, § 841(b)(1)(A)(iii) covered
quantities of crack cocaine of 50 grams or more, and
§ 841(b)(1)(B)(iii) covered quantities of 5 grams or more—
§ 841(b)(1)(C), therefore, covered specified quantities below 5
grams and unspecified quantities.
After the Fair Sentencing Act, however, the threshold
quantity triggering § 841(b)(1)(A)(iii) increased to 280 grams
and § 841(b)(1)(B)(iii) increased to 28 grams. And so
§ 841(b)(1)(C) began—for the first time—to cover convictions
8 No. 19-3465
involving quantities between 5 grams and 28 grams.2 “Read-
ing these subsections [841(b)(1)(A)(iii), (B)(iii), and (C)] to-
gether, before the Fair Sentencing Act, crack cocaine traffick-
ing offenses fell into three brackets,” and “[t]he Fair Sentenc-
ing Act’s amendments to Subsections 841(b)(1)(A)(iii) and
(B)(iii) shifted all three brackets upward.” Woodson, 962 F.3d
at 815. In so doing, the Act “modified” the “statutory penal-
ties” for § 841(b)(1)(C) convictions. Id.; see also Smith, 954 F.3d
at 450 (reaching the same conclusion in the alternative). As we
conclude above, the Fair Sentencing Act modified the statu-
tory penalties for § 841(b)(1)(C), so all convictions under that
subsection—regardless of whether they are subject to a differ-
ent penalty range—are “covered offenses.”
Accordingly, Hogsett’s crime under § 841(a)(1), (b)(1)(C)
is a “covered offense,” and he is eligible for resentencing un-
der the First Step Act.
III. CONCLUSION
Our holding today does not mandate a reduced sentence
for Hogsett or anyone else convicted under this statute. “It is
for the district court, in its discretion, to undertake a ‘com-
plete review’ of [Hogsett’s] motion and to determine
2 In Shaw, we demonstrated the Fair Sentencing Act’s operation
through charts, in which we referred to § 841(b)(1)(C)’s drug-quantity el-
ement as “any.” 957 F.3d at 736–37. The government argues that, in doing
so, we did away with § 841(b)(1)(C)’s quantity element. However, Shaw’s
holding says nothing about the status of a conviction under § 841(b)(1)(C);
indeed, the defendants in that case were convicted under § 841(b)(1)(A)
and (B). Id. at 738. Insofar as the charts led the government astray, we now
clarify that § 841(b)(1)(C) covers convictions for unspecified quantities
and specified quantities of crack cocaine not provided for by
§ 841(b)(1)(A) or (B), as its own text makes clear.
No. 19-3465 9
whether he is entitled to relief.” Shaw, 957 F.3d at 743 (quot-
ing First Step Act, § 404(c)).
We REVERSE and REMAND for the district court to de-
termine whether Hogsett’s sentence should be reduced.