                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1782
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   Anthony Birdine

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                   ____________

                              Submitted: May 11, 2020
                               Filed: June 22, 2020
                                  ____________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       Anthony Birdine appeals the district court’s denial of his motion, pursuant to
the First Step Act of 2018, to reduce his sentence. Because our recent precedent
dictates that Birdine is eligible for relief, we reverse and remand for further
proceedings.
I.    BACKGROUND

        In October 2006, Birdine was convicted by a jury on Counts I through IV of
a superseding indictment for: (I) conspiracy to distribute and possess with intent to
distribute cocaine base; (II and III) distribution of cocaine base; and (IV) possession
with intent to distribute cocaine base. Specifically, the indictment charged that
Birdine conspired to and did distribute and possess with intent to distribute at least
fifty grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), and 846
(1999). At sentencing, however, Birdine was held responsible as a member of the
conspiracy for more than 6000 grams of cocaine base, and this amount was used to
calculate his sentencing Guidelines range. As a result of this amount, and due to the
fact that he had two prior felony drug offense convictions, Birdine was sentenced in
February 2007 under 21 U.S.C. § 841(b)(1)(A)1 to a mandatory life sentence on
Count I. In Counts II, III and IV, Birdine was sentenced to concurrent sentences of
360 months. We affirmed. United States v. Birdine, 515 F.3d 842 (8th Cir. 2008).
In March 2019, Birdine brought the current pro se motion asking for relief under the
First Step Act.

II.   DISCUSSION

      The First Step Act became law in December 2018, and as relevant to this case,
made specific sections of the Fair Sentencing Act of 2010 retroactive to defendants
sentenced before 2010. First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat.
5194, 5222. The 2010 Fair Sentencing Act addressed the wide disparity in sentences
between cocaine base (crack) offenders and powder cocaine offenders, and increased
the quantity of cocaine base required for an A felony from fifty to 280 grams, and a

      1
       We will refer to a sentence imposed under § 841(b)(1)(A) in this opinion as
an “A felony” and a sentence imposed under § 841(b)(1)(B) as a “B felony.” See
United States v. Moore, No. 4:09CR3091, 2019 WL 5393815, at *1 n.2 (D. Neb. Oct.
22, 2019).

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B felony from five to twenty-eight grams. Fair Sentencing Act of 2010, Pub. L. No.
111-220, § 2, 124 Stat. 2372, 2372; United States v. McDonald, 944 F.3d 769, 771
(8th Cir. 2019).

       The First Step Act applies to a “covered offense” which “(1) . . . is a violation
of a federal statute; (2) the statutory penalties for which were modified by section 2
or 3 of the Fair Sentencing Act; and (3) it was committed before August 3, 2010.”
McDonald, 944 F.3d at 772. Section 404 of the First Step Act “allows a district court
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.” Id. at 771
(quotation omitted). In McDonald, we held that “[t]he First Step Act applies to
offenses, not [relevant] conduct, see First Step Act § 404(a), and it is [defendant’s]
statute of conviction that determines his eligibility for relief.” Id. at 772.

       Because Birdine was indicted and convicted for only fifty grams of cocaine
base, under the reasoning in McDonald, Birdine’s Count I must now be considered
a “B felony” under 21 U.S.C. § 841(b)(1)(B)(iii) (involving at least twenty-eight
grams of cocaine base), and Birdine avoids the mandatory life sentence that was
imposed in 2007 as an “A felony” under § 841(b)(1)(A).2 As a “B felony,” and
because Birdine still has a prior felony drug offense conviction, the statutory
sentencing range is “not . . . less than 10 years and not more than life imprisonment.”
21 U.S.C. § 841(b)(1)(B)(iii). Thus, while Birdine is still subject to a possible life
sentence on Count I, it is no longer mandatory.

      The district court denied Birdine’s pro se motion for relief, noting that Birdine
was found to be responsible for 6000 grams of cocaine base at sentencing, and further


      2
       Indeed, in McDonald, the defendant’s penalty also changed from an “A
felony” to a “B felony” based on the amount charged in the indictment. 944 F.3d at
771-72.

                                          -3-
held that giving Birdine relief from the life sentence under § 841(b)(1)(A) would be
a retroactive application of section 401 of the First Step Act.3 However, in resolving
this matter, the district court did not have the benefit of the McDonald decision.
Applying McDonald, Birdine’s conviction meets the three prerequisites of a covered
offense, and Birdine is eligible for relief under the First Step Act.

III.   CONCLUSION

      All relief under section 404 of the First Step Act is discretionary. Pub. Law
No. 115-391, § 404(c), 132 Stat 5194, 5222 (“Nothing in this section shall be
construed to require a court to reduce any sentence pursuant to this section.”).
Accordingly, we reverse and remand to the district court for further proceedings to
consider whether to exercise its discretion and reduce Birdine’s sentence.
                       ______________________________




       3
       Incidentally, section 401(a)(2)(A)(ii) of the First Step Act also modifies 21
U.S.C. § 841(b)(1)(A), lowering the mandatory life sentence to a sentence of not less
than twenty-five years. However, this amendment is not retroactive and applies only
to defendants sentenced after December 21, 2018.

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