United States v. Daniel Wirsing

                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-6381


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DANIEL W. WIRSING, a/k/a Big Dog, a/k/a Ace,

                     Defendant - Appellant.


Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. John Preston Bailey, District Judge. (3:07-cr-00049-JPB-RWT-1)


Argued: October 31, 2019                                    Decided: November 20, 2019


Before WYNN, QUATTLEBAUM, and RUSHING, Circuit Judges.


Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Quattlebaum and Judge Rushing joined.


ARGUED: Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wheeling, West Virginia, for Appellant. Daniel Kane, United States Department of
Justice, Washington, D.C., for Appellee. ON BRIEF: Nicholas J. Compton, Assistant
Federal Public Defender, Kristen M. Leddy, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.
William J. Powell, United States Attorney, Jeffrey A. Finucane, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
WYNN, Circuit Judge:

       Defendant Daniel Wirsing appeals from the district court’s denial of his Motion for

a Reduced Sentence under the First Step Act of 2018, 

, 

, 5222.

       The First Step Act provides that a sentencing court “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.” 

 § 404(b), 132 Stat. at 5222 (citation omitted). 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 Act of 2010, that was

committed before August 3, 2010.” Id. § 404(a), 132 Stat. at 5222 (citation omitted).

       Though the Government and Defendant agree that Defendant is entitled to relief

under the First Step Act, the district court found that Defendant was not entitled to relief

because Defendant was not sentenced for a “covered offense.” Id.; see United States v.

Wirsing, No. 3:07-cr-00049-JPB-RWT-1 (N.D.W. Va. Mar. 13, 2019). We disagree with

the district court and therefore reverse and remand this matter for consideration of a

sentence reduction under the First Step Act.

                                               I.

                                             A.

       Behind the passage of the First Step Act lies an extensive history of congressional

revisions to the penalties for drug-related crimes. The First Step Act is a remedial statute

intended to correct earlier statutes’ significant disparities in the treatment of cocaine base

(also known as crack cocaine) as compared to powder cocaine.


                                               2
       In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control

Act, which separated drugs into five “schedules” according to their potential for abuse.

(a)-(b), 

, 1247-48 (1970). The statute assigned

penalties in accordance with a drug’s schedule and whether it was a narcotic, without

considering quantity (with one minor exception related to distribution of “a small amount

of marihuana for no remuneration”). 

 § 401(b)(4), 84 Stat. at 1262; see id. § 401(b), 84

Stat. at 1261-62 (codified at 

). That changed in 1984, when Congress

introduced quantities to the statute. Controlled Substances Penalties Amendments Act of

1984, 

, 

, 2068-69 (codified at 

(b)).

The 1984 act constituted an attempt to “eliminat[e] sentencing dispar[i]ties caused by

classifying drugs as narcotic and nonnarcotic,” instead tying penalties to drug weight.

Chapman v. United States, 

 (1991).

       The disparity between crack and powder cocaine originated in a statute enacted two

years later: the Anti-Drug Abuse Act of 1986. Kimbrough v. United States, 

 (2007) (citing Anti-Drug Abuse Act of 1986, 

 Stat. 3207). The

Anti-Drug Abuse Act introduced mandatory minimums for offenses involving specified

weights of particular drugs. Anti-Drug Abuse Act § 1002, 100 Stat. at 3207-2 to -4

(codified at 

(b)(1)). For example, a defendant convicted of an offense

involving “5 kilograms or more of a mixture or substance containing a detectable amount

of . . . cocaine” or “50 grams or more of a mixture or substance . . . which contains cocaine

base” was subject to a ten-year mandatory minimum sentence. 

 § 1002, 100 Stat. at

3207-2. Similarly, the statute mandated a five-year minimum sentence where the


                                             3
conviction related to 500 grams or more of powder cocaine or 5 grams or more of cocaine

base. Id. § 1002, 100 Stat. at 3207-3. Thus, the 1986 statute provided that “a drug trafficker

dealing in crack cocaine [was] subject to the same sentence as one dealing in 100 times

more powder cocaine.” Kimbrough, 

. The Sentencing Guidelines then

incorporated this ratio “for the full range of possible drug quantities.” 

 (citation

omitted); see Dorsey v. United States, 

 (2012).

       The 100-to-1 ratio came under heavy criticism. See Dorsey, 

;

Kimbrough, 

. For example, between 1995 and 2007, the United States

Sentencing Commission issued four reports to Congress advising that “the ratio was too

high and unjustified.” Dorsey, 

. First, “research showed the relative harm

between crack and powder cocaine [was] less severe than 100 to 1.” 

 In fact, “[t]he active

ingredient in powder and crack cocaine is the same”; the difference is in how the drugs are

ingested, with crack “produc[ing] a shorter, more intense high.” Kimbrough, 

. Second, “the public had come to understand sentences embodying the 100-to-1 ratio as

reflecting unjustified race-based differences.” Dorsey, 

; see Gov’t Br. at 12

(noting that this “sentencing scheme . . . had [a] racially disparate impact”); see also

Kimbrough, 

 (citing the Sentencing Commission’s 2002 finding that

“[a]pproximately 85 percent of defendants convicted of crack offenses in federal court are

black”); Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 

, 827 (2017) (noting that the disparity “resulted in excessive and

unwarranted punishments that fell disproportionately on defendants of color”); Sonja B.

Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role


                                              4
of Prosecutors and the Effects of Booker, 

, 36-37 (2013) (referring to “the

sentencing framework’s notoriously harsh treatment of crack cocaine cases,” which

“disproportionately involv[ed] black defendants”). Additionally, the 100-to-1 disparity

“mean[t] that a major supplier of powder cocaine [could] receive a shorter sentence than a

low-level dealer who b[ought] powder from the supplier but then convert[ed] it to crack.”

Kimbrough, 

; see also 

.

       The Supreme Court mitigated the harshest effects of this sentencing regime in its

Booker and Kimbrough decisions. In United States v. Booker, the Supreme Court held that

the Guidelines were “effectively advisory”; that is, a sentencing court was required “to

consider Guidelines ranges,” but it could “tailor the sentence in light of other statutory

concerns as well.” 

 (2005). Then, in Kimbrough v. United States, the

Court held that a sentencing judge could find “that, in the particular case, a within-

Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing. In

making that determination, the judge may consider the disparity between the Guidelines’

treatment of crack and powder cocaine offenses.” 

 (citation omitted) (quoting

(a)). After Booker and Kimbrough, some district courts opted “to vary

from the crack cocaine Guidelines based on policy disagreement with them.” Spears v.

United States, 

 (2009) (per curiam) (emphasis omitted) (affirming district

courts’ authority to vary from the Guidelines in this way). But not all district courts did so,

and all courts remained bound by the disparate mandatory minimums imposed by the

statute.

                                              B.


                                              5
       Congress addressed the 100-to-1 sentencing inequity with the August 3, 2010

enactment of the Fair Sentencing Act. 

 Stat. 2372 (2010). The

Fair Sentencing Act described itself as intended “[t]o restore fairness to Federal cocaine

sentencing.” 

 124 Stat. at 2372. In a section labeled “Cocaine Sentencing Disparity

Reduction,” the Fair Sentencing Act increased the quantities applicable to cocaine base to

280 grams for the ten-year mandatory minimum and to 28 grams for the five-year

mandatory minimum. Id. § 2, 124 Stat. at 2372 (codified at 

(b)(1)). “The

effect of the changes [in Section 2 of the Fair Sentencing Act] was to reduce the sentencing

disparity between crack cocaine offenses and powder cocaine offenses by lowering the

crack-to-powder ratio from 100–to–1 to 18–to–1.” United States v. Black, 

 (4th Cir. 2013). Additionally, the Fair Sentencing Act eliminated the mandatory

minimum sentence for “simple possession” of cocaine base. Fair Sentencing Act § 3, 124

Stat. at 2372 (codified at 

(a)).

       The Supreme Court later held that the new penalty provisions applied to all crack

cocaine offenders sentenced on or after August 3, 2010, even if they committed their

offense before that date. Dorsey, 

. Those sentenced prior to the Fair

Sentencing Act’s enactment, however, could not benefit from the reduction in sentencing

disparities unless they could successfully bring a motion under the narrow exception

provided by 

(c)(2). See Black, 

.

       Generally, a court “may not modify a term of imprisonment once it has been

imposed.” 

(c). However, “in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range that has subsequently


                                             6
been lowered by the Sentencing Commission . . . , the court may reduce the term of

imprisonment,” subject to some restrictions listed in the statute. 

 § 3582(c)(2).

       After Congress enacted the Fair Sentencing Act, the Sentencing Commission

promulgated amendments to “lower[] the base offense levels assigned to different amounts

of cocaine base,” including Amendments 750 and 782. United States v. Peters, 

 (4th Cir. 2016) (citing U.S. Sentencing Guidelines Manual app. C, amend. 750

(U.S. Sentencing Comm’n 2011); 

 app. C supp., amend. 782 (U.S. Sentencing Comm’n

2014)). The Commission provided that these Guidelines amendments applied retroactively.

U.S. Sentencing Guidelines Manual § 1B1.10(d) (U.S. Sentencing Comm’n 2018); see

Peters, 

. Thus, some defendants sentenced before August 3, 2010 could

seek relief, not directly under the Fair Sentencing Act, but indirectly by means of a §

3582(c)(2) motion related to one of the retroactive Guidelines amendments. See Peters,

. However, a reduction under § 3582(c)(2) was not authorized if the

Guidelines amendment “d[id] not have the effect of lowering the defendant’s applicable

guideline range.” U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B); see id. § 1B1.10

cmt. n.1(A) (defining “applicable guideline range”); see also United States v. Muldrow,

 (4th Cir. 2016) (citing Dillon v. United States, 

(2010)); Peters, 

. Thus, those defendants who were sentenced before

August 3, 2010 and whose applicable Guideline range was not lowered by one of the

Guidelines amendments continued to have no way to access the benefits of the Fair

Sentencing Act.




                                              7
       In some cases, these excluded individuals were defendants who almost certainly

would not have faced a different sentence if they had been charged, convicted, and

sentenced after the Fair Sentencing Act. E.g., Peters, 

 (affirming the

district court’s denial of the defendant’s § 3582(c)(2) motion based on Amendment 782

because the amendment did not impact his Guidelines range, given the massive quantities

of cocaine base involved). Others, however, were automatically excluded through the

technical application of the career-offender provision—those whose sentences were driven

not by the quantity of drugs involved but rather by their status as a career offender. E.g.,

United States v. Dean, 

 (4th Cir. 2017) (per curiam) (“[The

defendant] is not entitled to relief because he was sentenced as a career offender, and the

career offender Guideline was not impacted by Amendment 782.”).

       Against this background, Congress enacted the First Step Act in December 2018.

The First Step Act filled some gaps left by the Fair Sentencing Act. For example, before

the First Step Act, the defendant in Dean could not access the benefits of the Fair

Sentencing Act: he was sentenced in June 2010, shortly before the Fair Sentencing Act’s

enactment, and he was ineligible for relief under Amendment 782. See id.; United States v.

Dean, No. 4:09-cr-00854-RBH-4, Dkt. 275 (D.S.C. June 2, 2010). That changed with the

First Step Act. Earlier this year, the Dean district court exercised its discretion to grant the

defendant’s First Step Act motion and to resentence him to time served. See Dean, No.

4:09-cr-00854-RBH-4, Dkt. 634 (D.S.C. May 2, 2019) (text order).

                                              C.




                                               8
       The First Step Act provides that a sentencing court “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 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 (citation omitted). 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 Act of 2010, that was committed before August 3, 2010.” Id. § 404(a), 132 Stat.

at 5222 (citation omitted). Among other limitations, Congress left the decision as to

whether to grant a sentence reduction to the district court’s discretion. Id. § 404(c), 132

Stat. at 5222 (“Nothing in this section shall be construed to require a court to reduce any

sentence pursuant to this section.”).

       On its face, the First Step Act allows the retroactive application of the modifications

to penalties that Congress enacted in the Fair Sentencing Act. Id. § 404(a), 132 Stat. at

5222; see also S. Comm. on the Judiciary, 115th Cong., The First Step Act of 2018 (S.3649)

– as introduced 2 19-6381(2018) (describing a bill with the same text as the version of

Section 404 that was ultimately enacted as “allow[ing] prisoners sentenced before the Fair

Sentencing Act of 2010 reduced the 100-to-1 disparity in sentencing between crack and

powder cocaine to petition the court for an individualized review of their case” and as

“bring[ing] sentences imposed prior to 2010 in line with sentences imposed after the Fair

Sentencing Act was passed” (emphasis omitted)); 164 Cong. Rec. S7020-02, S7021 (daily

ed. Nov. 15, 2018) (statement of Sen. Durbin) (describing the same bill as an opportunity

“to give a chance to thousands of people who are still serving sentences for nonviolent


                                              9
offenses involving crack cocaine under the old 100-to-1 rul[e] to petition individually” for

a sentencing reduction). This appeal presents the question of which defendants may seek

such retroactive relief.

                                             II.

       In May 2007, Defendant was named in thirteen counts of a fifteen-count, multi-

defendant indictment. The charges against him included a conspiracy related to cocaine

base (Count 1); distribution of various quantities of cocaine base, the greatest of which was

1.15 grams, in March 2006 and February 2007 (Counts 2-8 and 13); possession with intent

to distribute marijuana (Counts 9 and 15); felon in possession of a firearm (Count 10); and

possession with intent to distribute “approximately 16.0 grams” of cocaine base (Count

14). J.A. 22. Defendant pleaded guilty to Counts 10 and 14 and the court dismissed the

remaining counts against him on the Government’s motion. The district court sentenced

Defendant in January 2008 under the 2007 Guidelines Manual.

       As specified in the indictment, Count 14 alleged a violation of 

(a)(1)

and (b)(1)(B). Defendant agreed to plead guilty to those provisions in his plea agreement.

In his plea colloquy, Defendant pleaded guilty to “possession with intent to distribute 16

grams of cocaine base.” Change of Plea Transcript, Dist. Ct. Dkt. 185, at 23.

       At the time of Defendant’s indictment, plea, and sentencing, 

(b)(1)

mandated a sentence of ten years to life for possession with intent to distribute 50 grams

or more “of a mixture or substance” containing cocaine base, § 841(b)(1)(A)(iii); five to

forty years for 5 grams or more, § 841(b)(1)(B)(iii); and a maximum of twenty years




                                             10
otherwise, § 841(b)(1)(C). Thus, Defendant was subject to a statutory sentencing range of

five to forty years for Count 14.

       In the plea agreement, the parties “stipulate[d] and agree[d] that the total drug

relevant conduct of the defendant with regard to the Indictment is [one gun] . . . and 60.135

grams of cocaine base.” Plea Agreement, Dist. Ct. Dkt. 114 ¶ 11. Although the district

court did not mention drug quantity at sentencing, the court implicitly adopted the

stipulated quantity for purposes of sentencing by accepting the calculations in the

presentence investigation report, which were based on the 60.135-gram quantity. That

quantity yielded a base offense level of 30. U.S. Sentencing Guidelines Manual §

2D1.1(c)(5) (U.S. Sentencing Comm’n 2007). After a two-level increase for possession of

a firearm, Defendant’s adjusted offense level was 32. Id. § 2D1.1(b)(1). However, because

he was a career offender and his statute of conviction provided a maximum sentence of

forty years, his offense level was increased to 34 and his criminal history category was

automatically set at VI. Id. § 4B1.1(b). After a reduction for acceptance of responsibility

under § 3E1.1, his total offense level was 31. His Guidelines range on Count 14 was

therefore 188 to 235 months. Id. § 5 pt. A. The district court sentenced him to 188 months,

plus a 120-month concurrent sentence for the felon-in-possession charge (Count 10).

       In February 2019, Defendant moved for a reduced sentence pursuant to the First

Step Act. Because Defendant had been sentenced before August 3, 2010 in accordance

with the career-offender provision, he was among those inmates who were previously

unable to seek relief under the Fair Sentencing Act and the related Guidelines amendments.




                                             11
       Defendant reasoned that his sentence could be reduced if the court opted to “impose

a reduced sentence as if” Section 2 of the Fair Sentencing Act had been in effect when he

committed the offense charged in Count 14. First Step Act, § 404(b), 132 Stat. at 5222.

Under 

 as amended by the Fair Sentencing Act, the indictment’s charge of

approximately 16 grams of cocaine base for Count 14 would fall under § 841(b)(1)(C)

rather than § 841(b)(1)(B)(iii), since after the Fair Sentencing Act, § 841(b)(1)(B)(iii) only

applies where a violation involves “28 grams or more” of cocaine base. Under §

841(b)(1)(C), Defendant’s conviction would not be subject to a mandatory minimum

sentence and would expose him to a maximum sentence of twenty years. With a statutory

maximum sentence of twenty years—as opposed to forty years under the statute in effect

in 2007 and 2008—Defendant’s offense level as a career offender would be 32 rather than

34. U.S. Sentencing Guidelines Manual § 4B1.1(b). With the same reduction for

acceptance of responsibility that he received in 2008, Defendant’s total offense level would

drop to 29. His Guidelines range would be 151 to 188 months. 1 According to Defendant,

if the district court granted his motion and sentenced him at the bottom of the revised

Guidelines range—as it did at his initial sentencing—he would be eligible for immediate

release. The Government agreed that Defendant was eligible for relief under the First Step

Act and did not disagree that a sentence at the low end of the Guidelines range, resulting

in immediate release, would be appropriate.



       1
        Defendant does not contest that his relief, if any, will be in the form of a limited
sentence modification rather than a plenary resentencing.


                                             12
       Despite this consensus between the parties, the district court found Defendant

ineligible for relief under the First Step Act. The court reached that conclusion by first

finding that 

(c)(2) provided the proper vehicle for a First Step Act motion

and then finding that the quantity of cocaine base used for sentencing purposes—60.135

grams—would not result in a reduced Guidelines range, rendering Defendant ineligible.

The district court did not quote or analyze the text of the First Step Act or cite any cases

that had addressed First Step Act motions. The court also did not reach the question of

whether, in its discretion, it would grant relief to Defendant if he was eligible. This appeal

followed.

       In its briefing before this Court, the Government flipped positions, agreeing with

the district court on different grounds. See Gov’t Br. at 5; 

 at 8 n.1 (citing 

(c)(1)(B) instead of § 3582(c)(2)). Specifically, the Government argued that the First

Step Act conditions eligibility on whether a defendant’s relevant offense conduct, here

stipulated to be 60.135 grams of cocaine base, leads to a different statutory sentencing

range than that applicable at his original sentencing. Id. at 5, 7. Defendant responded that

the First Step Act allows him to seek sentencing relief because he “was convicted of

violating” 

(a)(1) and (b)(1)(B)(iii), and the “statutory penalties” for those

statutes “were modified by section 2” of the Fair Sentencing Act. Reply Br. at 4.

       Later, the Government filed a motion to confess error and remand for sentencing

reconsideration, arguing that while offense conduct governs eligibility, “only the cocaine

base attributable to” Count 14—which the Government states is 16 grams—“can be used

to determine if the statutory mandatory minimum quantity of cocaine base had been met.”


                                             13
Gov’t Motion at 2. Thus, the Government once again agrees that Defendant is eligible for

relief under the First Step Act, though under a different theory than that of Defendant.

       We denied the Government’s motion and held oral argument. We now consider the

district court’s reliance on 

(c)(2) and the disagreement between the parties

as to the First Step Act eligibility determination. These are issues of first impression in this

Circuit that have not been squarely addressed by any appellate court. We review such “pure

question[s] of statutory interpretation” de novo. United States v. Segers, 

(4th Cir. 2001); see also United States v. Allen, 

 (4th Cir. 2013). We hold

that (1) the district court erred in analyzing Defendant’s motion under 

(c)(2) and should have instead used 

(c)(1)(B) and (2) Defendant’s

statute-of-conviction theory of eligibility is correct. 2 Our position accords with that of the

majority of appellate courts that have considered these questions implicitly or without




       2
         We note that while our opinion addresses the question of eligibility under the First
Step Act and the source of a court’s authority to act on a First Step Act motion, our Court
has today also issued an opinion reviewing the impact of the First Step Act on sentences
arising from the revocation of supervised release. See United States v. Venable, No. 19-
6280 (4th Cir. Nov. 20, 2019).


                                              14
deciding them. 3 It is also in line with the consensus view among district courts. 4

                                             III.

       The parties concur that the district court erred by relying on 

(c)(2)

(and that statute’s reference to a defendant’s Guidelines sentencing range), though the

Government stated at oral argument that the First Step Act is nevertheless analogous to §




       3
          E.g., United States v. Duggan, 

, 261 (4th Cir. 2019) (per curiam)
(holding that the Court did not have jurisdiction under the First Step Act because the
defendant’s statute of conviction, 

(b)(1)(C), was not modified by the Fair
Sentencing Act, and citing 

(c)(1)(B)); see United States v. Martinez, 

, 947 (10th Cir. 2019) (same); see also United States v. Carter, No. 19-10918,

, at *3-4 (11th Cir. Oct. 18, 2019) (per curiam) (citing 

(c)(1)(B) and implicitly adopting the statute-of-conviction interpretation); United
States v. Jelks, No. 19-10830, 

, at *1-2 (11th Cir. Sept. 18, 2019) (relying
on the statute-of-conviction understanding of eligibility); United States v. Jones, No. 19-
5433, 

, at *2 (6th Cir. Sept. 12, 2019) (using the statute of conviction to
analyze eligibility but also using offense conduct in the alternative); United States v.
Hegwood, 

 (5th Cir.) (assuming without deciding that the statute-of-
conviction view is correct), cert. denied, No. 19-5743, 

 (U.S. Oct. 7,
2019); United States v. Jones, 

, 476 (4th Cir. 2019) (per curiam)
(affirming denial of § 3582(c)(2) motion but noting that the defendant could still move for
relief in the sentencing court under the First Step Act). But see United States v. Means, No.
19-10333, 

, at *2 (11th Cir. Sept. 11, 2019) (per curiam) (relying on §
3582(c)(2) and the relevant-conduct interpretation of eligibility to review a First Step Act
motion). Moreover, this Court adopted Defendant’s approach in the face of similar
arguments by the Government after passage of the Fair Sentencing Act. E.g., United States
v. Mubdi, 

 (4th Cir. 2013) (per curiam) (vacating a sentence where
judicial factfinding had increased the mandatory minimum sentence).
       4
         See United States v. Hill, No. 4:10-CR-00005-1, 

, at *1 (E.D.
Tenn. Sept. 24, 2019) (noting that the “majority of [district] courts” to address eligibility
have adopted the statute-of-conviction theory and collecting cases); United States v.
Shannonhouse, No. 2:07-cr-00289-ANB-1, 

, at *3 (W.D. Pa. July 30,
2019) (noting that most district courts to consider the question have found that the court’s
authority to modify a sentence under the First Step Act comes from § 3582(c)(1)(B)).


                                             15
3582(c)(2)—with its attendant restrictions. We hold that § 3582(c)(1)(B) is the appropriate

vehicle for a First Step Act motion.

       Under § 3582(c), “[t]he court may not modify a term of imprisonment once it has

been imposed except” in narrow circumstances. Two provisions are relevant here. First, in

all cases, “the court may modify an imposed term of imprisonment to the extent . . .

expressly permitted by statute,” § 3582(c)(1)(B); and second, “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§]

994(o), . . . the court may reduce the term of imprisonment, after considering the factors

set forth in section 3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing Commission,” §

3582(c)(2).

       In denying Defendant’s motion, the district court noted that the First Step Act “is

devoid of direction as to the procedure to be followed in reviewing potential reductions.”

J.A. 38. The court then opted to apply § 3582(c)(2), reasoning that “[i]t seems logical . . .

that in making the Fair Sentencing Act of 2010 fully retroactive, the Courts would follow

the same procedure utilized in reviewing the potential reductions under the 2010 Act.” Id.

That procedure entailed using § 3582(c)(2) to analyze the applicability of “amend[ments

to] the Guidelines with respect to cocaine base offenses” that had “[f]ollow[ed] the Fair

Sentencing Act of 2010.” Peters, 

.

       The district court’s analysis, however, failed to account for a key distinction

between the Fair Sentencing Act and the First Step Act: the latter “expressly permit[s]”


                                             16
modification of “an imposed term of imprisonment.” 

(c)(1)(B). Section 2

of the Fair Sentencing Act only modified quantities; it did not say anything about

sentencings. Fair Sentencing Act § 2, 124 Stat. at 2372. Therefore, retroactive

modifications under the Fair Sentencing Act could only be achieved by reference to

reductions in the sentencing range made “by the Sentencing Commission.” 

(c)(2). By contrast, the very purpose of the First Step Act is to make the Fair

Sentencing Act retroactive. Congress has explicitly authorized courts to “impose . . .

reduced sentence[s].” First Step Act § 404(b), 132 Stat. at 5222. The First Step Act thus

fits under the narrow exception to finality provided by § 3582(c)(1)(B) because it

“expressly permits the court to” modify a term of imprisonment. United States v. Goodwyn,

 (4th Cir. 2010) (emphasis in original) (citations omitted).

       In pre-First Step Act cases, courts found § 3582(c)(1)(B) to encompass only a few

statutes. E.g., United States v. Bailey, 

 (7th Cir. 2015) (interpreting

“expressly permitted by statute” in § 3582(c)(1)(B) as “disallowing sentence modifications

unless resentencing has been ordered after a successful direct appeal under 

(f), (g), or a collateral attack under 28 U.S.C. § 2255” and rejecting the defendant’s

contention that § 3582(c)(1)(B) could be used for a sentence reduction under the Fair

Sentencing Act); United States v. Penson, 

 (6th Cir. 2008) (labeling 

 and 2255 as “the two statutes permitting . . . modification” under §

3582(c)(1)(B)); see also United States v. Daily, 

 (8th Cir. 2013) (citing

); United States v. Garcia-Quintanilla, 

 (5th Cir. 2009)

(citing 

 and “those statutes governing resentencing after post-conviction


                                            17
relief,” and holding that unlike those statutes, 

(a) “does not expressly

permit a district court to modify the term of a previously-imposed sentence” but rather

merely “addresses the suspension of a sentence” (emphasis added)); United States v.

Goines, 

 (4th Cir. 2004) (citing 

); United States v.

Triestman, 

 (2d Cir. 1999) (citing 

).

       Like those statutes, the First Step Act provides explicit permission for a court to

modify a sentence. Section 3742(g) mandates that “[a] district court to which a case is

remanded . . . shall resentence a defendant.” 

(g); see also 

 (authorizing appellate courts to “affirm, modify, vacate, set aside or reverse”

sentences and remand for resentencing). Section 2255 provides that under certain

circumstances, “the court shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear

appropriate.” 

(b). It is true that §§ 3742(g) and 2255(b) use mandatory

language, while the First Step Act is permissive. See First Step Act § 404(b), 132 Stat. at

5222 (“A court that imposed a sentence for a covered offense may . . . impose a reduced

sentence . . . .” (emphasis added)). However, such phrasing does not undermine the

applicability of § 3582(c)(1)(B), which itself uses permissive language. See 

(c)(1)(B) (noting that “the court may modify” a sentence (emphasis added)).

       Section 3582(c)(2) was the appropriate vehicle for defendants seeking relief under

the Guidelines amendments related to the Fair Sentencing Act. See Peters, 

.

However, the distinct language of the First Step Act compels the interpretation that motions

for relief under that statute are appropriately brought under § 3582(c)(1)(B). And there is


                                            18
no reason to suppose that motions brought pursuant to § 3582(c)(1)(B) are subject to the

restrictions particular to § 3582(c)(2), which are grounded in the text of the latter statute.

See Dillon, 

; Peters, 

. Rather, in

determining eligibility under § 3582(c)(1)(B), courts must look to the applicable statute to

determine “the extent” to which modification is “expressly permitted by [that] statute.” §

3582(c)(1)(B).

                                             IV.

       The other question before us is how eligibility is determined under the First Step

Act. The statute only authorizes a court “that imposed a sentence for a covered offense” to

reduce a defendant’s sentence. First Step Act § 404(b), 132 Stat. at 5222. Accordingly,

eligibility turns on the proper interpretation of a “covered offense.”

       A “covered offense” is defined 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.” Id. § 404(a), 132 Stat. at 5222 (citation

omitted). In Defendant’s view, the phrase “the statutory penalties for which” refers to “a

Federal criminal statute.” See Reply Br. at 4. The result of that interpretation would be that

any inmate serving a sentence for pre-August 3, 2010 violations of 

(b)(1)(A)(iii) or (B)(iii)—both of which were modified by Section 2 of the Fair

Sentencing Act, see Fair Sentencing Act § 2(a), 124 Stat. at 2372—is serving “a sentence

for a covered offense” and may seek a sentence reduction under the First Step Act. First

Step Act § 404(b), 132 Stat. at 5222. We agree that this is the correct interpretation of the

statute.


                                             19
       On appeal, the Government has requested that we adopt a different approach. The

Government’s alternative reading of the statute rests on two assumptions: first, that “the

statutory penalties for which” refers to “a violation”; and second, that “a violation” is

determined by reference to the offense conduct attributable to the count at issue, rather than

by reference to the conviction. The Government must establish the first point in order to

reach the second. Because we disagree with the Government at the first stage of the

analysis, we need not examine the second.

       The most natural reading of the First Step Act’s definition of “covered offense” is

that “the statutory penalties for which were modified by [certain sections of the Fair

Sentencing Act]” refers to “a Federal criminal statute” rather than “a violation of a Federal

criminal statute.” Id. § 404(a), 132 Stat. at 5222 (emphasis added). A general rule of

statutory interpretation is that modifiers attach to the closest noun; courts should not

interpret statutes in such a way as to “divorce a noun from the modifier next to it without

some extraordinary reason.” Lopez v. Gonzales, 

 (2006); see also Lockhart

v. United States, 

 (2016). Because “Federal criminal statute” appears

closer to “statutory penalties for which” than does “violation,” it is more natural to attach

“penalties” to “statute” than to “violation.”

       “Of course, as with any canon of statutory interpretation, the rule of the last

antecedent is not an absolute and can assuredly be overcome by other indicia of meaning.”

Lockhart, 

 (citations and internal quotation marks omitted). But that is not

the case here. The only possible “indicia” of an alternative meaning is the repetition of

“statute” and “statutory,” which at first blush appears unnecessary. Yet on closer


                                                20
inspection, the terms are not redundant. The First Step Act specifies that it is “statutory

penalties” that are at issue to avoid any ambiguity that might arise in the sentencing context

between penalties specified by statute or by the Guidelines. In other words, the word

“statutory” is required to clarify “penalties” regardless of whether “statutory penalties for

which” modifies “Federal criminal statute” or “violation.” The use of the word “statutory”

is neutral between the interpretations; it is not an “indicia of meaning” that can “overcome”

the more natural reading of the statute. 

 And it certainly does not provide an

“extraordinary reason” to divorce “Federal criminal statute” from “penalties.” Lopez, 

.

       Moreover, Defendant’s interpretation is supported by the statutory background in

which the First Step Act was enacted and which it incorporates. Congress enacted the First

Step Act at a time when some, but not all, pre-Fair Sentencing Act inmates had received

relief by reference to their offense conduct through application of the post-Fair Sentencing

Act Guidelines amendments. On the face of the statute, Congress’s clear intent was to apply

the Fair Sentencing Act to pre-Fair Sentencing Act offenders, including those who were

heretofore ineligible for such relief. Congress listed specific limitations in the First Step

Act, including emphasizing district courts’ discretion. First Step Act § 404(c), 132 Stat. at

5222. There is no indication that Congress intended a complicated and eligibility-limiting

determination at the “covered offense” stage of the analysis. Id. § 404(a), 132 Stat. at 5222.

       Defendant’s view leads to a simple interpretation of the statute: he is eligible to seek

relief under the First Step Act because, “before August 3, 2010,” he “committed” a

“violation” of 

(a) and (b)(1)(B)(iii), and “the statutory penalties” for that


                                              21
statute “were modified by” Section 2 of the Fair Sentencing Act. Id.; see Reply Br. at 4.

We agree and adopt this understanding.

                                              V.

       The First Step Act provides a vehicle for defendants sentenced under a starkly

disparate regime to seek relief that has already been available to later-sentenced defendants

for nearly a decade. All defendants who are serving sentences for violations of 

(b)(1)(A)(iii) and (B)(iii), and who are not excluded pursuant to the expressed

limitations in Section 404(c) of the First Step Act, are eligible to move for relief under that

Act. District courts then “may,” at their discretion, “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 (citation omitted).

       Because Defendant is eligible to seek relief under the First Step Act, the district

court’s order is reversed. We remand to the district court to consider Defendant’s motion

to impose a reduced sentence.

                                                           REVERSED AND REMANDED




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