FILED
United States Court of Appeals
Tenth Circuit
PUBLISH May 18, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1025
WALLACE RAYMOND CROOKS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:00-CR-00439-MSK-6)
John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him the briefs), Office of the Federal Pubic Defender,
Denver, Colorado, for Appellant.
Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States
Attorney, with him on the brief), Office of the United States Attorney, Denver,
Colorado, for Appellee.
Before TYMKOVICH, Chief Judge, McHUGH, and CARSON, Circuit Judges.
TYMKOVICH, Chief Judge.
Wallace Crooks appeals from the district court’s denial of his First Step
Act motion for sentence reduction. Because the district court legally erred by
finding that Crooks is ineligible for relief and that his designation as a career
offender is unreviewable, we reverse and remand.
I. Background
A. Crooks’s Crime, Trial, and Sentence
Two decades ago, Wallace Crooks was charged with conspiracy to
distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A). He was convicted at a bench trial in which the district court found
the government proved beyond a reasonable doubt that Crooks personally
possessed with intent to distribute and did distribute 567 grams of crack cocaine.
At the time of Crooks’s crime and sentencing, the quantity of crack cocaine
he was convicted of conspiring to distribute—50 grams or more—triggered 21
U.S.C. § 841(b)(1)(A)(iii). This enhanced penalty provision subjected Crooks to
a mandatory statutory penalty of 10 years to life imprisonment. The Presentence
Investigation Report calculated an offense level of 38 based on the quantity of
drugs involved in the entire conspiracy, between 1,701 and 2,126 grams, and a
criminal history category of VI. The PSR also concluded Crooks qualified as a
career offender under § 4B1.1 of the United States Sentencing Guidelines,
treating the instant charge for conspiracy as a controlled substance offense. But
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this conclusion made no difference in Crooks’s guidelines calculation, as his
career offender level was lower than his base offense level. The PSR thus
calculated Crooks’s guidelines range to be 360 months to life imprisonment.
Crooks did not object to the PSR. The district court adopted the PSR and its
findings— including that Crooks was a career offender under § 4B1.1—and
sentenced him to 360 months’ imprisonment.
B. Evolving Crack Cocaine Punishment
The punishment associated with crack cocaine has changed significantly
since Crooks’s crime and sentencing. Prior to Crooks’s crime and sentencing,
Congress adopted the Anti-Drug Abuse Act of 1986. This Act established tiers of
punishment based on the amount of crack cocaine involved in an offense. For 5
to 49 grams of crack cocaine, the statutory penalty was 5 to 40 years’
imprisonment; for 50 grams or more of crack cocaine, the statutory penalty was
10 years to life imprisonment. These punishments were dramatically more severe
than punishments for powder cocaine offenses, as each gram of crack cocaine was
treated as the equivalent of 100 grams of powder cocaine under the Act.
Congress aimed to address this disparity by enacting the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. It modified 21 U.S.C.
§ 841(b)(1)(A)(iii) by raising the crack cocaine quantity threshold for the 10 years
to life imprisonment statutory penalty from 50 to 280 grams or more of crack
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cocaine. It also raised the amount of crack cocaine required to trigger the 5- to
40-year statutory penalty from 5 to 28 grams of crack cocaine. “Although the Fair
Sentencing Act was passed to remedy the 100:1 crack-to-powder cocaine
sentencing disparity, its provisions applied only to those sentenced after its
effective date, leaving those sentenced earlier [like Crooks] with no relief.”
United States v. Brown, 974 F.3d 1137, 1142 (10th Cir. 2020) (citing Dorsey v.
United States, 567 U.S. 260, 268–69 (2012)).
Congress further responded to the crack/powder cocaine disparity in 2018
with the First Step Act, P.L. 115-391, 132 Stat. 5194, 5222. The Act made the
Fair Sentencing Act’s 2010 changes to crack cocaine penalties retroactive by
allowing prisoners sentenced under the previous laws to personally file motions
for sentence reductions. 1
1
Section 404 of the First Step Act provides:
a) DEFINITION OF COVERED OFFENSE.—In this
section, the term “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
of 2010 (Public Law 111–220; 124 Stat. 2372), that was
committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.—A
court that imposed a sentence for a covered offense may,
on motion of the defendant, the Director of the Bureau of
Prisons, the attorney for the Government, or the court,
impose a reduced sentence as if sections 2 and 3 of the
(continued...)
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C. Crooks’s First Step Act Motion
Crooks filed a motion for sentence reduction under the First Step Act in
2019. He requested a reduction of his 360-month sentence to time-served, which
at the time was about 260 months. In support, Crooks argued that he was eligible
for First Step Act relief per § 404(a) because his offense of conviction, 21 U.S.C.
§ 841(b)(1)(A)(iii), was modified by the Fair Sentencing Act. He then asked the
district court to correctly calculate his guidelines range without the career
offender enhancement because a federal drug conspiracy is not a “controlled
substance offense” under the career offender guideline. See USSG § 4B1.1(a)
1
(...continued)
Fair Sentencing Act of 2010 (Public Law 111–220; 124
Stat. 2372) were in effect at the time the covered offense
was committed.
(c) LIMITATIONS.—No court shall entertain a motion
made under this section to reduce a sentence if the
sentence was previously imposed or previously reduced in
accordance with the amendments made by sections 2 and
3 of the Fair Sentencing Act of 2010 (Public Law
111–220; 124 Stat. 2372) or if a previous motion made
under this section to reduce the sentence was, after the
date of enactment of this Act, denied after a complete
review of the motion on the merits. Nothing in this section
shall be construed to require a court to reduce any sentence
pursuant to this section.
First Step Act § 404.
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(2001). By Crooks’s calculation, his proper offense level of 32 2 and criminal
history category of VI rendered a guidelines range of 210 to 262 months’
imprisonment. Finally, Crooks urged the district court to consider the 18 U.S.C.
§ 3553(a) sentencing factors—namely, the lower rates of recidivism for offenders
in their fifties and sixties, as well as his good conduct in prison, which in his
view, supported a sentence reduction.
The district court denied Crooks’s motion. It found that Crooks was
ineligible for a sentence reduction, and even if he were eligible, a sentence
reduction was not warranted due to his designation as a career offender. The
district court reasoned that Crooks’s career offender status was unreviewable
under the First Step Act. So, even if the Fair Sentencing Act had been in effect at
the time of the offense, Crooks’s guidelines range would have been the same as it
was in 2002: 360 months to life imprisonment.
II. Analysis
Crooks contends the district court erred in determining both that he was
ineligible for a sentence reduction and that even if he were eligible, he should not
receive one because the district court could not review Crooks’s career offender
designation. Because we agree with Crooks that he is eligible for a sentence
2
This was based on the application of 21 U.S.C. § 841(b)(1)(B) instead of
§ 841(b)(1)(A) and without an enhancement to 37 due to career offender status.
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reduction and that his career offender status is reviewable, we reverse and
remand.
A. Eligibility
During the appeal, the government changed its position and now concedes
Crooks is eligible for First Step Act relief. Crooks is eligible if he was convicted
of a “covered offense” under § 404(a). 3 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 of 2010, . . . that was committed
before August 3, 2010.
§ 404(a). 4
The meaning of “covered offense” turns on what “the statutory penalties for
which” modifies: “a violation,” “a Federal criminal statute,” or “a violation of a
Federal criminal statute.”
We conclude that interpreting “the statutory penalties for which” to modify “a
violation of a Federal criminal statute” is the approach most consistent with the text
and structure of the First Step Act. As an initial matter, we start with the text.
Recall, the First Step Act defines “covered offense” as “a violation of a Federal
3
Section 404(c) contains other eligibility restrictions, but none apply here.
4
The Fair Sentencing Act modified 21 U.S.C. § 841(b)(1)(A)(iii) to raise
the drug quantity threshold for the 10 years to life imprisonment statutory penalty
from 50 to 280 grams of crack cocaine.
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criminal statute, the statutory penalties for which were modified by section 2 or 3 of
the Fair Sentencing Act[.]” § 404(a). Some courts have severed the first clause by
concluding that “the statutory penalties for which” modifies “a Federal criminal
statute” based on the nearest-reasonable-referent canon of statutory construction.
This canon “presumes that a modifier refers to the nearest reasonable referent.”
USAA Cas. Ins. Co. v. Calderon, 818 F. App’x 828, 831 (10th Cir. 2020)
(unpublished) (citing A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 152 (2012)). As applied here, the modifier—“the statutory penalties for
which”—is nearer to “a Federal criminal statute” than it is to “a violation.” See
United States v. Shaw, 957 F.3d 734, 739 (7th Cir. 2020). Although this reasoning
reaches the same outcome as our reasoning, it is nevertheless flawed.
The clause “a violation of a Federal criminal statute” is a “concise and
integrated clause” that “refers to a single thing—a type of violation.” United States
v. Jones, 962 F.3d 1290, 1299 (11th Cir. 2020); see also Cyan, Inc. v. Beaver Cty.
Emps. Ret. Fund, 138 S. Ct. 1061, 1077 (2018) (explaining “the most natural way to
view the [relevant] modifier is as applying it to the entire preceding clause . . .
because that clause hangs together as a unified whole, referring to a single thing”).
This interpretation is further supported by an analysis of the final clause of
§ 404(a). A “covered offense” is “a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing
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Act of 2010, . . . that was committed before August 3, 2010.” First Step Act § 404(a)
(emphasis added). A defendant cannot “commit” “a Federal criminal statute”—but
he can “commit” “a violation of a Federal criminal statute.” See Jones, 962 F.3d at
1299.
Every circuit court of appeals to have considered this issue has reached the
same conclusion: that eligibility depends on a defendant’s offense of conviction, not
his underlying conduct. See United States v. Smith, 954 F.3d 446 (1st Cir. 2020);
United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019); United States v. Jackson, 945
F.3d 315 (5th Cir. 2019); United States v. Beamus, 943 F.3d 789 (6th Cir. 2019);
Shaw, 957 F.3d at 734; United States v. McDonald, 944 F.3d 769 (8th Cir. 2019);
Jones, 962 F.3d at 1290. But most of these courts have taken a different route than
we adopt here. They did so by determining that “the statutory penalties for which”
modifies “a Federal criminal statute” rather than the entire preceding clause. That
approach, however, improperly broadens the definition of “covered offense” because
it “would mean that the First Step Act covers offenses unaffected by the Fair
Sentencing Act.” Jones, 962 F.3d at 1300. As the Eleventh Circuit Court of Appeals
explained in Jones, that
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,
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even though the Act did not alter the penalties for heroin
offenses.
Id. Now, even if a heroin defendant moved for First Step Act relief and could get
past § 404(a), his motion would be dead in the water once the district court
reached § 404(b), because applying the Fair Sentencing Act as if it were in effect
at the time the offense was committed would do nothing. 5 But although these
differing interpretations reach the same outcome—crack-cocaine defendants are
the only defendants convicted of 21 U.S.C. § 841 who have a real chance at a First
Step Act sentence reduction—as a matter of statutory interpretation, we adopt the
approach that is consistent with the statutory text and structure.
We accordingly hold that a defendant’s federal offense of conviction, not his
underlying conduct, determines First Step Act eligibility.6 Crooks was convicted of
conspiracy to distribute 50 grams or more of crack cocaine. When he committed the
offense, the statutory penalty for his crime was 10 years to life imprisonment. See 21
U.S.C. § 841(b)(1)(A)(iii) (2000). The Fair Sentencing Act increased the threshold
quantity of crack cocaine required to trigger § 841(b)(1)(A)(iii) from 50 to 280 grams or
more. Because Crooks’s offense of conviction triggered a statutory penalty that has since
5
Section 404(b) of the First Step Act provides: “A court that imposed a
sentence 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.”
6
Of course, a defendant must also meet the other requirements of § 404(c).
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been modified by the Fair Sentencing Act, he committed a “covered offense” and is
eligible for resentencing under the First Step Act, despite his responsibility for 567 grams
of crack cocaine.
B. Career Offender Status
Because the district court ruled in the alternative by assuming eligibility, we must
next address Crooks’s career offender status. The district court held that even if Crooks
were eligible for First Step Act relief, it would decline to reduce his sentence because it
could not review Crooks’s career offender designation. “Whether a defendant was
erroneously classified as a career offender is a question of law subject to de novo
review.” United States v. Karam, 496 F.3d 1157, 1166 (10th Cir. 2007) (internal
quotation marks omitted).
Congress granted courts nearly unfettered discretion to reduce, or to decline to
reduce, an eligible defendant’s sentence pursuant to a First Step Act motion. But,
notwithstanding this discretion, to “impose a reduced sentence as if . . . the Fair
Sentencing Act . . . were in effect at the time the covered offense was committed”
necessarily requires a correct calculation of the guidelines range. See Brown, 974 F.3d at
1145 (“If the district court erred in the first Guideline calculation, it is not obligated to err
again.”).
The district court should have recalculated the guidelines range. In denying
Crooks’s motion, the district court concluded that if the Fair Sentencing Act had been in
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effect at the time of Crooks’s offense conduct, his guidelines range would have been
identical to the range calculated at his initial sentencing. The district court reached this
conclusion because it determined Crooks’s designation as a career offender was
unreviewable.
Not only is a career offender designation reviewable in a First Step Act motion,
but this designation was incorrectly applied to Crooks at his initial sentencing in 2002 and
led the sentencing court to incorrectly calculate his guidelines range. In Brown,7 we held
that a defendant may challenge the legality of his career offender status in a First Step Act
motion because an improper designation as a career offender can lead to a miscalculation
of the guidelines range, which “affects the legitimacy of the process because the
benchmark for the entire sentencing process rests on an obviously mistaken premise.”
974 F.3d at 1139–40, 1144 (internal quotations omitted). Although we recognized that
the First Step Act “is narrow and does not authorize plenary resentencing,” we also
explained that “[the Act] allows a district court to at least consider [a defendant’s] claim
that sentencing him as a career offender would be error given subsequent decisional law
that clarifies (not amends) the related career offender provision at issue.” Id. at 1139.
The district court thus misunderstood the scope of its authority by concluding Crooks’s
career offender status was unreviewable.8
7
Brown was decided after the district court issued its order here.
8
After our decision in Brown, the government concedes that a district
(continued...)
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The government concedes on appeal that Crooks was improperly designated as a
career offender because his drug conspiracy conviction of 21 U.S.C. § 846 is not a
“controlled substance offense” within the meaning of the career offender guideline. We
agree.
Defendants classified as career offenders under USSG § 4B1.1 (2001)9 are subject
to minimum offense levels dependent upon their offense’s statutory maximum penalty.
Section 4B1.1 explains that one of the requirements to be designated as a career offender
is that “the instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense[.]” The application notes to § 4B1.2 explain that “controlled
substance offense” “include[s] the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” § 4B1.2, comment (n.1) (emphasis added). But the
2001 guidelines do not define “conspiring.”
We addressed the interplay of an identical application note and 21 U.S.C. § 846 in
United States v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016). In Martinez-Cruz, the
defendant’s sentencing offense level was enhanced based on USSG § 2L1.2 application
note 5 for his prior drug conspiracy conviction of 21 U.S.C. § 846. Id. at 1307. At the
8
(...continued)
court may reconsider career offender status in ruling on a First Step Act motion.
9
The 2001 version of the Guidelines is relevant to our analysis because it
was used at Crooks’s initial sentencing. See Brown, 974 F.3d at 1144 (“[T]he
First Step Act . . . does not empower the sentencing court to rely on revised
Guidelines instead of the Guidelines used at the original sentencing.”).
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time, application note 5 stated that “[p]rior convictions of offenses counted under
subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” (emphasis added). But the application notes to § 2L1.2 did not
define “conspiring,” so we had to decide whether the defendant’s prior conspiracy
conviction was a conspiracy triggering a sentencing enhancement under application note
5. Id. at 1310.
We held that it was not. Because “conspiring” was not defined by § 2L1.2 or its
application notes, we applied the categorical approach to such a “generic, undefined
term[] in the Guidelines.” Id. at 1313. After doing so, we “conclude[d] that the generic
definition of ‘conspiracy’ requires an overt act.” Id. at 1314. And because the
defendant’s prior conspiracy conviction of 21 U.S.C. § 846 did not require proof of an
overt act, it was “a categorical mismatch for the generic definition of ‘conspiracy’ in
U.S.S.G. § 2L1.2 application note 5[.]” Id.
This reasoning applies with equal force to Crooks’s designation as a career
offender. Section 4B1.2 application note 1 uses identical language to define “controlled
substance offense,” explaining that it “include[s] the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.” See USSG § 4B1.2, comment (n.1)
(emphasis added). Just as “conspiring” in § 2L1.2 application note 5 refers to the generic
definition of conspiracy, which requires an overt act, so too does “conspiring” in § 4B1.2
application note 1. See Martinez-Cruz, 836 F.3d at 1314. And because Crooks’s
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conspiracy conviction, 21 U.S.C. § 846, does not require an overt act, he does not satisfy
the career offender requirements of § 4B1.1. See United States v. Shabani, 513 U.S. 10,
17 (1994) (“[P]roof of an overt act is not required to establish a violation of 21 U.S.C.
§ 846.”).
As a result, Crooks was erroneously designated as a career offender.
* * *
On remand, the district court should recalculate Crooks’s guidelines range using
the 2001 edition, see Brown, 974 F.3d at 1144, and without the career offender guidelines
enhancement. It then may consider the 18 U.S.C. § 3553(a) factors. See United States v.
Mannie, 971 F.3d 1145, 1158 n.18 (10th Cir. 2020).
III. Conclusion
For the reasons set forth above, we REVERSE the district court’s order denying
Crooks’s First Step Act motion and REMAND for proceedings consistent with this
opinion.10
10
Crooks requests that we reassign this case to a new judge on remand,
arguing that the district court judge used a disparaging metaphor in her order
denying a sentence reduction by likening defendants like Crooks seeking First
Step Act relief to trapped rats seeking an exit from electrified cages. The use of
this metaphor may have been insensitive, but it is not grounds for reassignment.
See Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996). There is no
evidence or allegation that the court is biased against Crooks. Moreover, we do
not believe reassignment would preserve the appearance of justice. And although
reassignment would not entail much waste or duplication, reassignment is only
appropriate under extreme circumstances that are not present here. See, e.g., id.
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