United States v. Young

19-4198-cr
United States v. Young

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2020
No. 19-4198-cr

UNITED STATES OF AMERICA,
Appellee,

v.

SHAWN YOUNG,
Defendant-Appellant. *

On Appeal from the United States District Court
for the Southern District of New York

SUBMITTED: MARCH 5, 2021
DECIDED: MAY 19, 2021

Before: LEVAL, CABRANES, and MENASHI, Circuit Judges.

Defendant-Appellant Shawn Young appeals from a judgment
of the United States District Court for the Southern District of New
York (Berman, J.) granting in part and denying in part his motion for
a sentence reduction pursuant to the First Step Act of 2018, Pub. L.

* The Clerk of Court is directed to amend the case caption as set forth above.
No. 115-391. The district court granted Young’s motion with respect
to his conviction on Count One, a violation of 21 U.S.C. § 841(b)(1)(A)
for conspiracy to distribute and possess with intent to distribute 50
grams or more of crack cocaine. But the district court denied Young’s
motion with respect to his conviction on Count Two, a violation of
21 U.S.C. § 841(b)(1)(C) for distributing and possessing with intent to
distribute an unspecified quantity of crack cocaine. The district court
held that a violation of 21 U.S.C. § 841(b)(1)(C) is not a “covered
offense” within the meaning of the First Step Act and accordingly that
the Act gave the court no authority to resentence Young on that count.

Because Young has now been released from custody, the
parties dispute whether Young’s appeal from the district court’s
denial of his motion for a sentence reduction with respect to Count
Two is moot. We conclude that it is not. If Count Two were a “covered
offense” under the First Step Act, Young would be eligible for a
reduction in his term of supervised release on that count. In light of
the circumstances of Young’s case, there is more than a remote and
speculative possibility that the district court on remand would grant
such relief. That possibility is enough to create a live controversy as
to Young’s appeal from the district court’s denial of his motion for a
sentence reduction with respect to Count Two.

On the merits, we conclude that a conviction for distributing
and possessing with intent to distribute an unspecified quantity of
crack in violation of 21 U.S.C. § 841(b)(1)(C) is not a “covered offense”
within the meaning of the First Step Act. Young is therefore ineligible
for a reduction in his sentence on Count Two under the First Step Act.
Young’s argument in the alternative that the district court could have
resentenced him on Count Two because it was grouped with and
formed an interdependent sentencing package with Count One is
2
unavailing because a court may not alter a sentence imposed on any
count of conviction without express statutory authority to do so.
Finally, because the district court provided no explanation for why it
left Young’s term of supervised release on Count One intact despite
its decision to reduce his prison sentence on that count to time served,
we VACATE Young’s term of supervised release on Count One and
REMAND to the district court for resentencing with respect to the
term of supervised release imposed on Count One only. The
judgment of the district court is in all other respects AFFIRMED.

Michael Herman, Thomas McKay, Assistant United
States Attorneys, for Audrey Strauss, United States
Attorney for the Southern District of New York, New
York, NY, for Appellee.

Sarah Baumgartel, Federal Defenders of New York, Inc.,
Appeals Bureau, New York, NY, for Defendant-Appellant.

MENASHI, Circuit Judge:

Defendant-Appellant Shawn Young appeals from the
judgment of the United States District Court for the Southern District
of New York (Berman, J.) granting in part and denying in part his
motion for a sentence reduction pursuant to the First Step Act of 2018,
Pub. L. No. 115-391. Young sought a sentence reduction with respect
to his convictions for two offenses related to crack cocaine. Young’s
first count of conviction, Count One, was for conspiracy to distribute
and possess with intent to distribute 50 grams or more of crack
cocaine in violation of 21 U.S.C. § 841(b)(1)(A). Young’s second count
of conviction, Count Two, was for distributing and possessing with
3
intent to distribute an unspecified quantity of crack cocaine in
violation of 21 U.S.C. § 841(b)(1)(C). Young was sentenced to 16-year
terms of imprisonment on each count, to run concurrently, followed
by ten years of supervised release on Count One and five years of
supervised release on Count Two, also to run concurrently.

In ruling on Young’s motion for a sentence reduction under the
First Step Act, the district court granted Young’s motion with respect
to Count One and reduced Young’s prison sentence on that count to
time served, while leaving undisturbed the accompanying term of
supervised release. But the district court denied Young’s motion with
respect to Count Two, holding that a conviction under 21 U.S.C.
§ 841(b)(1)(C) is not a “covered offense” under the First Step Act and
that Young was therefore ineligible for resentencing under the First
Step Act on that count.

Young appeals from that judgment, arguing that his conviction
on Count Two is a “covered offense” under the First Step Act and
that, even if it is not, he is eligible for resentencing on that count
because it was grouped with and formed an interdependent
sentencing package with Count One, which is a covered offense.
Young further argues that the district court erred by failing to explain
its reasons for declining to reduce his term of supervised release on
Count One while reducing his prison sentence on that count to time
served. Young asks this court to hold that he is “eligible for a sentence
reduction under the First Step Act for both of his crack offenses” and
urges us to “remand to the district court for further consideration of
a reduction” in his sentence. Appellant’s Br. 11.

This appeal thus requires us to decide whether a conviction for
distributing and possessing with intent to distribute an unspecified

4
quantity of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(C) is a
“covered offense” within the meaning of the First Step Act. The First
Step Act defines a “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.” First Step Act
§ 404(a), 132 Stat. at 5222. Accordingly, Young’s conviction on Count
Two is a “covered offense” under the First Step Act if the “statutory
penalties” for a “violation of” 21 U.S.C. § 841(b)(1)(C) were “modified
by section 2 or 3 of the Fair Sentencing Act of 2010.” Id.

Because neither Section 2 nor Section 3 of the Fair Sentencing
Act modified the statutory penalties for a violation of 21 U.S.C.
§ 841(b)(1)(C), we hold that a conviction under that provision is not a
“covered offense” within the meaning of the First Step Act. We
therefore conclude that Young is not eligible for resentencing under
the First Step Act for his conviction on Count Two. 1 We reject

1 Although sentences under § 841(b)(1)(C) are ineligible for resentencing
under the First Step Act, those sentences remain eligible for reductions
under 18 U.S.C. § 3582(c)(2), which permits courts to reduce sentences that
were “based on” a Guidelines range that the Sentencing Commission
subsequently lowered “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” The Sentencing
Commission promulgated amended Guidelines consistent with the Fair
Sentencing Act’s increase in the quantities required to trigger mandatory
minimum sentences, which resulted in lower sentences for crack cocaine
offenses. See U.S.S.G. App. C Amend. 750 (effective Nov. 1, 2011). The
Sentencing Commission also provided for retroactive application of the
amended Guidelines. U.S.S.G. § 1B1.10(d). However, because the
Sentencing Commission’s policy statements limit the authorization under
§ 3582(c)(2), a sentence may not be reduced under this provision to a term
less than the minimum term of imprisonment specified by a subsequently
lowered Guidelines range (with an exception for defendants who provide

5
Young’s argument in the alternative that he is eligible for
resentencing on Count Two because it was grouped with and formed
an interdependent sentencing package with a covered offense. A
court may not resentence a defendant on a final judgment of
conviction without statutory authorization to do so. Accordingly,
Young’s eligibility for resentencing on Count One under the First Step
Act does not alter his ineligibility for resentencing on Count Two.

We agree with Young that the district court erred by failing to
explain its reasons for leaving Young’s term of supervised release on
Count One undisturbed while reducing his prison sentence on that
count to time served. In light of the district court’s extensive positive
commentary about Young’s progress toward rehabilitation while
incarcerated, we cannot discern from the record the district court’s
reasons for declining to reduce Young’s term of supervised release on
Count One. We therefore vacate the term of supervised release
imposed on Count One and remand to the district court for
resentencing with respect to the term of supervised release imposed
on that count only. We affirm the judgment of the district court in all
other respects.

BACKGROUND

In 2007, Shawn Young was charged in a three-count indictment
in connection with his participation in a narcotics trafficking
conspiracy. Count One charged Young with conspiracy to distribute

substantial assistance to the government). U.S.S.G. § 1B1.10(b)(2)(A)-(B).
The reductions that § 3582(c)(2) allows do not benefit Young, therefore,
because his 16-year sentence falls below the post-2010 amended Guidelines
range of 324 to 405 months. Indeed, Young was denied a sentence reduction
under § 3582(c)(2) for precisely this reason.

6
and possess with intent to distribute 50 grams or more of mixtures
and substances containing a detectable amount of cocaine base, also
known as “crack,” in violation of 21 U.S.C. §§ 812, 841(a)(1), and
841(b)(1)(A). Count Two charged Young with distributing and
possessing with intent to distribute an unspecified amount of crack in
violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). Count Three
charged Young with using, carrying, and possessing a firearm in
furtherance of the conspiracy charged in Count One, in violation of
18 U.S.C. § 924(c)(1)(A)(i). A jury convicted Young on Counts One
and Two but acquitted him on Count Three.

Young’s conviction on Count One for distributing 50 grams or
more of crack in violation of 21 U.S.C. § 841(b)(1)(A) subjected him to
a ten-year mandatory minimum prison sentence. Young’s conviction
on Count Two for distributing an unspecified quantity of crack in
violation of 21 U.S.C. § 841(b)(1)(C), on the other hand, did not carry
a mandatory minimum prison sentence. The Probation Department
nevertheless determined that Young’s convictions on both counts
should be grouped for sentencing purposes under U.S.S.G. § 3D1.2(d)
because Young’s offense level was based on the total quantity of crack
distributed in the course of the narcotics conspiracy.

Young appeared before the district court for sentencing on
April 27, 2009. The district court accepted the Probation Department’s
recommendation that Counts One and Two be grouped for
sentencing purposes and imposed a 16-year prison sentence on each
count, to run concurrently, followed by ten years of supervised
release on Count One and five years of supervised release on Count
Two, also to run concurrently. Young’s sentence was affirmed on
direct appeal. See United States v. Harris, 373 F. App’x 119 (2d Cir.
2010) (summary order).
7
 While Young was serving his sentence, Congress adopted the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, which “marked the
culmination of a decades-long effort to address what had been a 100-
to-1 disparity between the amounts of crack and powder cocaine
required to trigger the mandatory statutory penalties in 21 U.S.C.
§ 841(b)(1).” United States v. Davis, 961 F.3d 181, 184 (2d Cir. 2020)
(citing Dorsey v. United States, 567 U.S. 260, 266-70 (2012)). The Fair
Sentencing Act addressed that disparity by increasing the threshold
quantities of crack required for the five- and ten-year mandatory
minimum sentences provided in 21 U.S.C. § 841(b)(1). Specifically,
Section 2 of the Fair Sentencing Act increased the amount of crack
required to trigger the five-year mandatory minimum in 21 U.S.C.
§ 841(b)(1)(B)(iii) from 5 grams to 28 grams and increased the amount
of crack required to trigger the ten-year mandatory minimum in
21 U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams. See Fair
Sentencing Act § 2, 124 Stat. at 2372. In addition, Section 3 of the Fair
Sentencing Act eliminated the mandatory minimum sentence for
simple possession of crack in 21 U.S.C. § 844(a) altogether. Id. § 3, 124
Stat. at 2372. These changes “were not retroactive, however, for
defendants … who,” like Young, “were sentenced before the Act’s
passage on August 3, 2010.” Davis, 961 F.3d at 185 (citing Dorsey, 567
U.S. at 273).

To address this lack of retroactivity, Congress adopted the First
Step Act of 2018, which authorized “[a] 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 of 2010 … were in effect at the time
the covered offense was committed.” First Step Act § 404(b), 132 Stat.
at 5222. The First Step Act defines a “covered offense” as “a violation
of a Federal criminal statute, the statutory penalties for which were

8
modified by section 2 or 3 of the Fair Sentencing Act … that was
committed before August 3, 2010.” Id. § 404(a), 132 Stat. at 5222.

Following the enactment of the First Step Act, Young filed a pro
se letter-motion with the district court requesting a reduction in his
sentence pursuant to the Act. In response, the district court directed
the government and the Federal Defenders of New York to brief “the
effect, if any, that recent Federal legislation may have upon Young’s
sentence.” App’x 73. In his written submissions, Young sought a
reduction of his sentence to time served followed by four, as opposed
to ten, years of supervised release. The government opposed any
reduction in Young’s sentence.

The district court held a hearing on Young’s motion. At the
hearing, Young’s counsel argued that Count One was a “covered
offense” within the meaning of the First Step Act and that Young was
therefore eligible for resentencing on that count. While
acknowledging that it was “much more of an open question” as to
whether Young was eligible for resentencing on Count Two, Young’s
counsel stated that there was a “plain reading of the statute” under
which Count Two could be considered a “covered offense” and
offered to provide the court with supplemental briefing on that issue.
App’x 249-50. Young’s counsel maintained, however, that the district
court did not need to address whether Count Two was a covered
offense because Young was eligible for resentencing on Count One,
which was grouped with Count Two for sentencing purposes. Later
in the hearing, when Young’s counsel reminded the district court that
it had the authority to reduce Young’s term of supervised release, the
court replied, “Yes, I think I wouldn’t change—if I did anything, I
would not change supervised release.” Id. at 258.

9
 Following the hearing, the district court issued a decision and
order granting in part and denying in part Young’s motion for a
sentence reduction. The court concluded that Count One—Young’s
conviction under 21 U.S.C. § 841(b)(1)(A)—is a “covered offense”
under the First Step Act and that Young was therefore eligible for
resentencing on that count. Finding that Young had “made significant
strides to change his life around for the better while incarcerated,”
“made very productive use of his time in prison,” “worked steadily
while in custody,” shown “genuine remorse … for his past actions,”
and had not committed a disciplinary infraction in six years, the
district court decided to reduce Young’s prison sentence on Count
One to time served. App’x 264-65. The district court did not mention
Young’s ten-year term of supervised release on that count.

The district court reached the opposite conclusion with respect
to Count Two—Young’s conviction under 21 U.S.C. § 841(b)(1)(C)—
holding that it is not a “covered offense” under the First Step Act and
noting that the court was “unable to perceive a basis for a
resentencing with respect to Count Two.” App’x 263. Because the
district court did not reduce Young’s 16-year prison sentence on
Count Two, its decision to reduce Young’s sentence on Count One to
time served had no practical effect on Young’s sentence.

Young filed a timely appeal. After the parties submitted their
briefs, Young completed his term of incarceration.

DISCUSSION

Because Young has been released from custody, the parties
dispute whether Young’s appeal from the district court’s denial of his
motion for a sentence reduction with respect to Count Two is moot.
We conclude that it is not. If we were to hold that Count Two is a

10
“covered offense” under the First Step Act, Young would be eligible
for a reduction in his term of supervised release on that count. In light
of the circumstances of Young’s case, there is more than a remote and
speculative possibility that the district court on remand would grant
such relief. That possibility is enough to create a live controversy as
to Young’s appeal from the district court’s denial of his motion for a
sentence reduction with respect to Count Two.

On the merits, we hold that Young is ineligible for resentencing
on Count Two because a violation of 21 U.S.C. § 841(b)(1)(C) is not a
“covered offense” within the meaning of the First Step Act. Young’s
argument that he is eligible for resentencing on the alternative ground
that Count Two was grouped with Count One for sentencing
purposes and formed a legally interdependent sentencing package
with Count One fails because a court may not resentence a defendant
on any count of conviction without direct statutory authorization to
do so. Young’s eligibility for resentencing on Count One under the
First Step Act does not alter his ineligibility for resentencing on Count
Two. Because the district court did not provide any explanation for
leaving Young’s ten-year term of supervised release on Count One
intact, a limited vacatur and remand with respect only to that decision
is warranted.

I

On appeal, Young argues that the district court erred in holding
that he is ineligible for resentencing under the First Step Act on Count
Two for two reasons. First, Young argues that Count Two is a
“covered offense” under the First Step Act. Second, Young argues that
even if Count Two is not a covered offense, the district court had the
authority to resentence him on Count Two because it was grouped

11
with and formed part of an interdependent sentencing package with
Count One, which is a covered offense. Young also argues that the
district court erred by failing to explain its reasons for leaving his ten-
year term of supervised release on Count One intact while reducing
his prison sentence on that count to time served.

The government filed a brief opposing Young’s position on all
of these points. After the appeal was submitted to this court for
decision, the government filed a letter with this court under Federal
Rule of Appellate Procedure 28(j) informing us that the government
“has reconsidered its views and now takes the position that a
defendant’s conviction for possessing with intent to distribute an
unspecified amount of cocaine base in a form commonly known as
‘crack,’ in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), is a ‘covered
offense’ … under the First Step Act.” Letter from Michael Herman
and Thomas McKay, Assistant United States Attorneys, to Catherine
O’Hagan Wolfe, Clerk of Court for the United States Court of Appeals
for the Second Circuit, at 1 (Mar. 16, 2021) (ECF No. 119) [hereinafter
“Government Letter”]. The government said it “withdraws its
argument that Young is not eligible for a sentence reduction on Count
Two.” Id. The letter did not explain the basis for the government’s
change of position beyond stating that it had “reconsidered its
views.” Id.

The letter further informed the court that after the parties’
briefs were filed, Young completed his term of imprisonment and was
released from custody, thereby “render[ing] moot Young’s request
for a reduction of his term of imprisonment on Count Two.” Id. While
acknowledging that “Young is still subject to a term of supervised
release on Count Two,” the government argues that Young’s appeal
from the district court’s judgment as to Count Two is nevertheless
12
moot because the district court exercised its discretion by declining to
reduce Young’s longer, concurrent term of supervised release on
Count One. For that reason, according to the government, there is
only “a remote and speculative possibility that the district court could
or would impose[] a reduced term of supervised release were this
Court to remand the matter.” Id. (quoting United States v. Chestnut, 989
F.3d 222, 225 (2d Cir. 2021)) (internal quotation marks and alteration
omitted). The government contends that the only live dispute
remaining in this case is Young’s “separate argument” that the district
court erred by failing to explain its reasons for declining to reduce his
term of supervised release on Count One, which the government
argues “should be rejected, for the reasons stated in the Government’s
brief.” Id. at 2.

Young filed a letter in response to the government. See Letter
from Sarah Baumgartel, Federal Defenders of New York, to Catherine
O’Hagan Wolfe, Clerk of Court for the United States Court of Appeals
for the Second Circuit, at 1-2 (Mar. 17, 2021) (ECF No. 121). Relying
on our decision in United States v. Holloway, 956 F.3d 660 (2d Cir. 2020),
Young argues that “because he ‘remains eligible for a reduction in his
term of supervised release’” on Count Two, his appeal from the
district court’s denial of his motion for resentencing on that count is
not moot. Id. at 1 (quoting Holloway, 956 F.3d at 661). Young further
argues that there is more than a remote or speculative possibility that
the district court, acting “[w]ith a correct understanding of its actual
authority,” would reduce his term of supervised release on Count
Two. Id. at 2. Young urges us to “reject the government’s argument
that [his] appeal on Count Two is moot.” Id.

We agree with Young that his appeal from the district court’s
judgment as to Count Two is not moot. “It is well established that the
13
Case or Controversy Clause of Article III, Section 2 of the United
States Constitution limits the subject matter jurisdiction of the federal
courts such that the parties must continue to have a personal stake in
the outcome of the lawsuit.” Tanasi v. New All. Bank, 786 F.3d 195, 198
(2d Cir. 2015) (internal quotation marks and alteration omitted). “A
case becomes moot pursuant to Article III’s Case or Controversy
Clause when it is impossible for a court to grant any effectual relief
whatever to the prevailing party.” Id. at 199 (quoting Knox v. Serv.
Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)) (internal
quotation marks and alterations omitted). Accordingly, “[a]s long as
the parties have a concrete interest, however small, in the outcome of
the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172
(2013).

Young has a concrete interest in the outcome of his appeal on
Count Two because he remains subject to a term of supervised release
on that count. Were we to conclude that Count Two is a covered
offense under the First Step Act, we would vacate the district court’s
judgment as to Count Two and remand for resentencing on that
count. While Young’s release from prison means that it is “too late to
reduce his prison sentence” on Count Two, the district court on
remand “could still reduce his term of supervised release,” and
therefore “it remains possible for this Court to grant [Young] some
form of ‘effectual relief’ should he prevail.” Holloway, 956 F.3d at 664
(quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). In
light of this possibility, Young’s appeal on Count Two “is not moot.”
Id.

We do not believe the circumstances of this appeal put Young
among those cases in which the possibility of a reduction in the
defendant’s term of supervised release is so “remote and speculative”
14
as to moot the defendant’s appeal. United States v. Key, 602 F.3d 492,
494 (2d Cir. 2010). The government argues that because the district
court did not reduce Young’s ten-year term of supervised release on
Count One, “[t]here is no non-speculative possibility that Young’s
eligibility for a sentence reduction on Count Two would lead the
District Court to reduce the longer, concurrent term of supervision
associated with Count One.” Government Letter 1. But because we
hold, as explained below, that the district court erred by failing to
explain why it left Young’s term of supervised release on Count One
unchanged, we vacate Young’s term of supervised release on that
count. We need not speculate as to whether Young’s potential
eligibility for resentencing on Count Two would lead the district court
to reduce Young’s longer term of supervision on Count One.

Moreover, if we were to hold that Count Two is a covered
offense and that Young was eligible for release from prison when he
moved for a sentence reduction, the district court could decide to
reduce Young’s term of supervised release in light of the excess time
in prison that Young served. See, e.g., Holloway, 956 F.3d at 664 (“On
remand, if the district court [reduces Holloway’s term of supervised
release], it may factor in how much (if at all) it would have reduced
Holloway’s prison term.”); United States v. Barresi, 361 F.3d 666, 675
(2d Cir. 2004) (“[T]he court should then consider whether it wishes to
exercise its discretion to reduce Barresi’s supervised-release term
below three years … in order to compensate for the fact that Barresi
completed his 21-month prison term before his resentencing took
place.”). That possibility is neither remote nor speculative given that
the district court reduced Young’s term of imprisonment on Count
One to time served and praised Young for his progress toward
rehabilitation while incarcerated. We do not find it “impossible to

15
believe that the court would reduce the term of supervised release” in
this case. United States v. Blackburn, 461 F.3d 259, 263 (2d Cir. 2006).

In sum, this case does not resemble those in which we have
concluded that the possibility of a reduced term of supervised release
on remand was “too remote and speculative to satisfy the case-or-
controversy requirement of Article III, Section 2 of the Constitution.”
Key, 602 F.3d at 494 (internal quotation marks and alteration omitted).
Because Young’s appeal from the district court’s denial of his motion
for resentencing on Count Two is not moot, we proceed to the merits.

II

On the merits, we conclude that the First Step Act did not
authorize the district court to reduce Young’s sentence on Count Two
because a conviction under 21 U.S.C. § 841(b)(1)(C) for distributing
and possessing with intent to distribute an unspecified amount of
crack is not a “covered offense” within the meaning of the First Step
Act. 2 The First Step Act defines a “covered offense” as “a violation of

2 We assess this question of statutory interpretation de novo. See United
States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016). The government argues
that we should apply plain error review because Young purportedly
waived the argument that Count Two is a covered offense under the First
Step Act in the proceedings below. We do not believe the argument is
waived. In the first place, “we do not consider arguments waived when,
although not raised below, they were nevertheless passed on by the district
court.” United States ex rel. Keshner v. Nursing Pers. Home Care, 794 F.3d 232,
235 (2d Cir. 2015) (citing United States v. Williams, 504 U.S. 36, 41 (1992)). In
denying Young’s motion for a sentence reduction as to Count Two, the
district court ruled that Count Two is not a covered offense under the First
Step Act, see App’x 263-64, so the argument is not waived. Moreover,
Young’s counsel argued to the district court that Count Two could be
considered a covered offense under a “plain reading” of the First Step Act

16
a Federal criminal statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act.” First Step Act
§ 404(a), 132 Stat. at 5222. Section 2 of the Fair Sentencing Act
modified the “statutory penalties” of two federal criminal statutes—
21 U.S.C. §§ 841(b)(1)(A)(iii) and (B)(iii)—by increasing the quantities
of crack required to trigger the mandatory minimum sentences
prescribed by those statutes; Section 3 of the Fair Sentencing Act
modified the statutory penalty in 21 U.S.C. § 844(a) by eliminating it
altogether. See Fair Sentencing Act §§ 2-3, 124 Stat. at 2372.

Neither Section 2 nor Section 3 of the Fair Sentencing Act
modified 21 U.S.C. § 841(b)(1)(C) in any respect. See id. Unlike
Sections 841(b)(1)(A)(iii) and (B)(iii), the text of Section 841(b)(1)(C)
remained exactly the same before and after the Fair Sentencing Act
was adopted. Accordingly, the “statutory penalties” for Section
841(b)(1)(C) were not “modified by section 2 or 3 of the Fair
Sentencing Act,” and a violation of Section 841(b)(1)(C) is not a
“covered offense” under the First Step Act. See First Step Act § 404(a),
132 Stat. at 5222. Several of our sister circuits have reached the same
conclusion. See United States v. Birt, 966 F.3d 257, 264 (3d Cir. 2020)
(“[T]he text and effect of § 841(b)(1)(C) are the same now as before. …
[A]ccordingly, convictions under that subsection are not ‘covered
offenses,’ as defined by the First Step Act.”); United States v. Willis,
No. 19-1723, 2020 WL 8483047, at *2 (6th Cir. Feb. 11, 2020) (“The Fair
Sentencing Act did not modify the statutory penalties set forth in 21

and even offered to provide briefing on the issue. Id. at 249-50. We do not
believe that a party should be deemed to have waived an argument when
the party raised the argument before the district court and offered to
provide additional support for it. We conclude that the argument is not
waived and apply de novo review.

17
U.S.C. § 841(b)(1)(C).”); United States v. Foley, 798 F. App’x 534, 536
(11th Cir. 2020) (“Because the district court sentenced Foley under
§ 841(b)(1)(C), which was not modified by section 2 or 3 of the Fair
Sentencing Act, Foley is not eligible for relief.”); United States v.
Martinez, 777 F. App’x 946, 947 (10th Cir. 2019) (“The Fair Sentencing
Act had no effect on § 841(b)(1)(C) and, thus, Martinez’s crime of
conviction is not a ‘covered offense’ under the [First Step] Act.”).

Young’s arguments to the contrary are unavailing. First, Young
contends that the relevant “Federal criminal statute” for the purposes
of the First Step Act is “either § 841 as a whole, or § 841(a), which
describes all the conduct necessary to violate § 841.” Appellant’s
Br. 16 (quoting United States v. Smith, 954 F.3d 446, 449 (1st Cir. 2020)).
Young argues that “[b]ecause the Fair Sentencing Act modified the
statutory penalties for a violation of § 841(a) involving crack, any
conviction under that statute relating to crack is a ‘covered offense’
for the purposes of the First Step Act.” Id. This argument is foreclosed
by our decision in United States v. Davis, in which we rejected the
notion that “any defendant sentenced for violating Section 841(a)” is
eligible for resentencing under the First Step Act. 961 F.3d at 190 n.6.
We said instead that:

[W]e think that Section 2 of the Fair Sentencing Act
modified the statutory penalties for 21 U.S.C.
§ 841(b)(1)(A)(iii), and that Davis is therefore eligible
because he was sentenced for a violation of that statute.
Id. (emphasis added). We thus held that the relevant “statute” is
Section 841(b)(1)(A)(iii)—the specific subsection of Section 841(b) that
the defendant was convicted of violating. We explained that this
“conclusion is consistent with the way courts describe the statutory
offenses in this context,” as violations of specific subsections. Id.

18
(collecting cases). Indeed, this conclusion is consistent with how
Young’s offense conduct is described in the district court’s judgment
of conviction, in which the only difference between Counts One and
Two is the particular subsection of Section 841(b) on which each count
is predicated. Adopting Young’s view that “Federal criminal statute”
means Section 841 or 841(a) would contradict Davis.

The interpretation of “Federal criminal statute” proposed by
Young is also flawed for the separate reason—to which we alluded in
Davis—that it would permit any defendant convicted of violating
Section 841(a) to seek resentencing under the First Step Act even if the
defendant were not convicted of a crack-related offense. Section
841(b)—which was indisputably modified by Section 2 of the Fair
Sentencing Act—establishes the statutory “[p]enalties” for
“violat[ing] subsection (a)” of Section 841. If Section 841 or 841(a) is
the relevant “Federal criminal statute” for the purposes of the First
Step Act, then anyone convicted under Section 841(a) is eligible to
seek resentencing because the “statutory penalties” for “a violation
of” Section 841(a) were “modified” by the Fair Sentencing Act’s
changes to Section 841(b). Thus, under Young’s interpretation of the
statute, a person convicted of distributing heroin in violation of 21
U.S.C. § 841(b)(1)(A)(i) could move for resentencing, even though the
Fair Sentencing Act was passed “[t]o restore fairness to Federal
cocaine sentencing” and modified only the statutory penalties for
crack offenses. See Fair Sentencing Act, 124 Stat. at 2372; see also
Dorsey, 567 U.S. at 264-70 (describing the “language, structure, and
basic objectives” of the Fair Sentencing Act). We reject Young’s
contention that a violation of Section 841(b)(1)(C) is a “covered
offense” because the relevant “Federal criminal statute” for the

19
purposes of the First Step Act is either Section 841 or 841(a). 3

Young next argues that “the Fair Sentencing Act did modify the
penalties for § 841(b)(1)(C)” because Section 841(b)(1)(C) incorporates
Sections 841(b)(1)(A) and (B) by reference. Appellant’s Br. 16. Young
contends that because Section 841(b)(1)(C) prescribes a maximum
sentence of 20 years “except as provided” in subparagraphs (A) and
(B), “[t]he Fair Sentencing Act’s amendments to subsections
841(b)(1)(A)(iii) and (B)(iii)” modified Section 841(b)(1)(C) by making

3 In United States v. Smith, the First Circuit accepted the argument Young
makes here and acknowledged that construing “Federal criminal statute”
in the First Step Act to mean Section 841 or 841(a) created this possibility.
954 F.3d 446, 450 n.5 (1st Cir. 2020) (“A more difficult question would be
whether a violation of § 841(a)(1) involving only a controlled substance
other than crack cocaine (heroin, for example) would also be considered a
‘covered offense.’ Since Smith was convicted for distributing crack cocaine
… we need not decide that issue.”). We do not think it is sufficient to say
we need not confront this result of Young’s argument because he was
convicted of a crack offense. See SEC v. Rosenthal, 650 F.3d 156, 162 (2d Cir.
2011) (“It is … well-established that a statute should be interpreted in a way
that avoids absurd results.”) (internal quotation marks and alteration
omitted). We note it may be possible to read Section 404 of the First Step
Act as focused on whether the Fair Sentencing Act changed the statutory
penalties for a particular “violation of a Federal criminal statute” rather than
the “Federal criminal statute” itself. First Step Act § 404(a), 132 Stat. at 5222
(emphasis added). If given that interpretation, a “violation” of Section
841(b) involving a substance other than crack would not be a “covered
offense” under Young’s argument because only the “statutory penalties”
for violations of Section 841(b) involving crack were “modified by section 2
or 3 of the Fair Sentencing Act.” See First Step Act § 404(a), 132 Stat. at 5222.
But we rejected this interpretation in Davis. 961 F.3d at 190 (“[I]t is a
defendant’s statutory offense, not his or her ‘actual’ conduct, that
determines whether he has been sentenced for a ‘covered offense’ within
the meaning of Section 404(a), and is consequently eligible for relief under
Section 404(b).”).

20
it applicable to crack offenses “involving less than 28 grams” of crack,
whereas it previously applied only to crack offenses “involving less
than 5 grams” of crack. Reply Br. 11-12.

The problem with this argument is that a violation of Section
841(b)(1)(C) is not based on any particular quantity of crack. Rather,
Section 841(b)(1)(C) applies when the defendant is charged with an
offense involving an unspecified amount of crack. See United States v.
Requena, 980 F.3d 30, 49 (2d Cir. 2020) (describing Section 841(b)(1)(C)
as “the penalty provision that applies to violations involving schedule
I or II controlled substances of indeterminate or unspecified amount”)
(internal quotation marks omitted). And the statutory penalties for
distributing an unspecified amount of crack were not modified by the
Fair Sentencing Act.

As a result, Young “cannot point to any circumstance under
which someone convicted under [Section 841](b)(1)(C) would have
faced different penalties before and after the passage of the Fair
Sentencing Act.” Birt, 966 F.3d at 264. Even though the Fair
Sentencing Act increased the maximum amount of crack subject to
punishment under Section 841(b)(1)(C), raising the maximum
amount did not “affect anyone originally sentenced under …
§ 841(b)(1)(C).” Id. Anyone originally sentenced under that provision
“prior to the enactment of the Fair Sentencing Act would presently be
subject to the exact same statutory penalty of up to 20 years.” Id. A
conviction under Section 841(b)(1)(C) is therefore not a “covered
offense” within the meaning of the First Step Act.

We hold that Young is not eligible under the First Step Act for
a reduction in his term of supervised release on Count Two.

21
 III

Young argues in the alternative that even if Count Two is not a
“covered offense,” he is nevertheless eligible for resentencing on that
count because it was grouped with Count One for sentencing
purposes and Count One—a violation of Section 841(b)(1)(A)—is a
covered offense. We rejected this argument in United States v. Martin,
in which we explained that:

Sentences are imposed for specific convictions within
judgments of conviction. Judgments of conviction are
final judgments that are only modifiable by courts in
limited circumstances, including where “expressly
authorized” by statute. The fact that multiple sentences
may be aggregated for administrative purposes does not
authorize a court to treat those sentences as an undivided
whole, the authorization to modify one part of which
confers authorization to modify the whole. … Thus,
where an inmate is imprisoned upon multiple sentences
that are aggregated for administrative purposes, courts
require specific modification authorization—either due
to a change in the guidelines ranges for a sentence on a
particular count of conviction, or because a statute
authorizes the reduction of a sentence—for each term of
imprisonment contained in an otherwise final judgment
of conviction.
974 F.3d 124, 130, 137 (2d Cir. 2020). Because Young’s conviction on
Count Two is not a covered offense under the First Step Act, there
was no “specific modification authorization” under the First Step Act
to support a reduction in the “term of imprisonment” imposed for
that count of conviction. See id. at 137 (“The language of the First Step
Act is circumscribed, it permits courts only to ‘impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act were in effect

22
at the time the covered offense was committed.’ The plain language
of the Act permits the limited modification of a specific sentence, it
does not give district courts carte blanche to modify terms of
imprisonment other than those imposed for ‘covered offenses.’”)
(internal citation and alteration omitted). Young’s eligibility for
resentencing on Count One does not alter his ineligibility for
resentencing on Count Two.

IV

Finally, Young argues that the district court erred by failing to
give any reason for its apparent decision not to reduce his term of
supervised release on Count One. Because Count One is a covered
offense and Young’s ten-year term of supervised release on that count
exceeds the new mandatory minimum term of four years for an
individual convicted of distributing between 28 and 280 grams of
crack, see 21 U.S.C. § 841(b)(1)(B)(iii), 4 Young is eligible for a
reduction in his term of supervised release for Count One. Young
asked the district court to reduce his term of supervised release from
ten years to four, but the district court refused his request, stating
simply, “if I did anything, I would not change supervised release.”
App’x 258. The district court’s decision and order granting Young’s
motion for a sentence reduction on Count One, which reduced
Young’s term of imprisonment on that count to time served, did not
address the term of supervised release imposed on the same count.

The district court should have explained its decision with
respect to the term of supervised release. Although the district court
had discretion to leave Young’s term of supervised release on Count

4 Count One charged Young with distributing 50 grams or more of crack.

23
One intact, “[w]e cannot uphold a discretionary decision unless we
have confidence that the district court exercised its discretion and did
so on the basis of reasons that survive our limited review.” United
States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc). Here, the
district court “provided no explanation as to why it declined to
reduce” Young’s term of supervised release on Count One. United
States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013). Nor are its reasons
for doing so “apparent from the record.” Id. at 196. In explaining its
decision to reduce Young’s sentence on Count One to time served, the
district court noted Young’s “significant strides to change his life
around,” his “very productive use of his time in prison,” his “genuine
remorse … for his past actions,” and his exemplary disciplinary
record in recent years. App’x 264-65. In light of those remarks, it is
unclear why the district court would reduce Young’s term of
incarceration on Count One to time served while leaving his ten-year
term of supervised release unchanged. While the district court’s
explanation “need not be lengthy,” without “some indication of the
rationale for the ruling, we are precluded from conducting
meaningful appellate review.” Christie, 736 F.3d at 196.

For that reason, we vacate the term of supervised release
imposed on Count One and remand for the district court to reassess
Young’s term of supervised release on that count only. Should the
district court again decide to require a ten-year term of supervised
release on Count One, it should explain its reasons for doing so.

CONCLUSION

A conviction for violating 21 U.S.C. § 841(b)(1)(C) is not a
“covered offense” within the meaning of the First Step Act because
neither Section 2 nor Section 3 of the Fair Sentencing Act modified the

24
statutory penalties for distributing an unspecified amount of crack
under that statute. Accordingly, Young is not eligible for resentencing
under the First Step Act on his judgment of conviction for Count Two.
Young is also not eligible for resentencing on Count Two on the
alternative ground that Count Two was grouped with and formed an
interdependent sentencing package with Count One. Finally, because
the district court failed to explain its decision not to reduce Young’s
term of supervised release on Count One, we vacate Young’s term of
supervised release on that count and remand to the district court to
reassess Young’s term of supervision on Count One only. The
judgment of the district court is in all other respects affirmed.

25