                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-7362


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ERIC MARIO BYERS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Rebecca Beach Smith, Senior District Judge. (2:02-cr-00077-RBS-1)


Submitted: March 31, 2020                                         Decided: April 15, 2020


Before GREGORY, Chief Judge, THACKER, Circuit Judge, and SHEDD, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


Eric Mario Byers, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Eric Mario Byers appeals the district court’s order granting his motion to reduce his

sentence under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. In 2003,

Byers was convicted of conspiracy to distribute and possess with intent to distribute 5

kilograms or more of cocaine and 50 grams or more of cocaine base (Count 1), possession

with intent to distribute 50 grams or more of crack cocaine (Count 2), possession of

marijuana with intent to distribute (Count 3), possession of 5 grams or more of crack

cocaine with intent to distribute (Count 4), possession of cocaine with intent to distribute

(Count 5), possession of marijuana with intent to distribute (Count 6), and possession of

an unregistered machine gun (Count 8). Byers received concurrent sentences of 360

months’ imprisonment for Counts 1, 2, and 4, and lesser concurrent sentences for the

remaining counts. In 2015, the district court reduced Byers’ sentences for Counts 1, 2, and

4 from 360 months’ imprisonment to 290 months’ imprisonment, pursuant to Amendment

782 of the Sentencing Guidelines, which reduced the applicable Guidelines range for

certain crack cocaine offenses. In 2019, Byers moved for a reduction of sentence pursuant

to the First Step Act (“FSA”), claiming that Counts 1, 2, and 4 were eligible for reduced

sentences. We vacate and remand.

       After reviewing the Government’s opposition to Byers’ motion and the Probation

Office’s FSA Worksheet, the district court granted the motion as to Count 3 and reduced

the sentence from 290 months’ imprisonment to 240 months’ imprisonment, the revised

statutory maximum for that offense. The court concluded that Byers’ conviction for Count

1 was not a covered offense because Byers was convicted of conspiring to distribute 50

                                             2
grams of crack cocaine and 5 kilograms of cocaine, and the statutory penalties for cocaine

offenses were unchanged.

       Section 404(b) of the FSA provides that “[a] court that imposed a sentence for a

covered offense may, on motion of the defendant . . . impose a reduced sentence as if

sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372)

were in effect at the time the covered offense was committed.” § 404(b). “Section 404(a)

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,

that was committed before August 3, 2010.” United States v. Gravatt, __ F.3d __, __, 2020

WL 1327200, at *2 (4th Cir. Mar. 23, 2020). Section 404(c) contains limitations on the

application of § 404(b) and “provides that ‘nothing in the section is to be construed to

require a court to reduce any sentence.’” Id. (quoting § 404(c)).

       When the district court considered Byers’ FSA motion, it did not have the benefit

of our recent decision in Gravatt. In Gravatt, we held that a defendant convicted of

conspiracy to possess with intent to distribute crack cocaine and powder cocaine was

convicted of a covered offense under the FSA. Id., 2020 WL 1327200, at *4-5. Thus,

Byers was eligible for a reduced sentence on Count 1. Accordingly, we must vacate the

district court’s order and remand. This “decision . . . only requires that [Byers]’ sentence

receive a substantive review. It should not be construed as expressing any view on how




                                             3
the district court should rule.” * Id. 2020 WL 1327200, at *5. We deny Byers’ motion to

consolidate. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                             VACATED AND REMANDED




       *
        The district court recognized that it had the authority to reduce Byers’ sentence for
Count 2, but chose not to do so as a matter of discretion. We take no position on the court’s
decision at this juncture. The court may, however, choose to revisit that decision.

                                             4
