19-874
United States v. Davis


                    United States Court of Appeals
                              for the Second Circuit
                                   _______________

                                  AUGUST TERM, 2019

                 (Argued: March 20, 2020           Decided: June 5, 2020)

                                  Docket No. 19-874
                                  _______________

                              UNITED STATES OF AMERICA,

                                      Appellant,

                                        —v.—

MATTHEW F. JOHNSON, BARRETT B. JOHNSON, SHAWN S. JOHNSON, COREY J. RIVERS,
RAHEIM HOWELL, JENNIFER M. GOURLEY, ANDREA PERKINS, KEVIN L. GLOWACKI,
RICHARD D. FARNHAM, SR., JOHN A. LEE, MARK L. BURDICK, DAVID J. THOMPSON,
 LEROY W. NUPP, JR., MARK W. DECKER, ANNA M. BENJAMIN, SCOTT PETERS, JIMI
     LIN GOURLEY, RYAN V. POTTER, LORI A. CARROW, BETH L. SAIFAKAS,

                                      Defendants,

                                    MONAE DAVIS,

                                  Defendant-Appellee.
                                  _______________

B e f o r e:

               KATZMANN, Chief Judge, WESLEY and BIANCO, Circuit Judges.

                                   _______________
       The government appeals from an order and amended judgment of the
United States District Court for the Western District of New York (Skretny, J.)
granting Monae Davis’s motion for a reduced sentence under Section 404 of the
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Davis was sentenced in
August 2009 after pleading guilty to one count of conspiracy to possess with intent
to distribute and to distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 846. The government argues that eligibility for
Section 404 relief turns on a defendant’s actual conduct and that Davis is therefore
ineligible because he conceded in his plea agreement that his relevant conduct
involved at least 1.5 kilograms of crack cocaine. We hold, however, that Section
404 eligibility depends on the statutory offense for which a defendant was
sentenced, not the particulars of any given defendant’s underlying conduct.
Because Section 2 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372, modified the statutory penalties for the offense for which Davis was
sentenced, Davis was eligible for Section 404 relief. The district court’s order and
amended judgment are therefore AFFIRMED.
                                  _______________

             DANIEL J. KANE, Attorney, Appellate Section (Matthew S. Miner,
                  Deputy Assistant Attorney General, and Brian A.
                  Benczkowski, Assistant Attorney General, on the brief),
                  Criminal Division, United States Department of Justice,
                  Washington, DC; Tiffany H. Lee, Assistant United States
                  Attorney, Joseph M. Guerra, III, First Assistant United States
                  Attorney, James P. Kennedy, Jr., United States Attorney for
                  the Western District of New York, Buffalo, NY, for Appellant
                  United States of America.

             MARYBETH COVERT, Assistant Federal Public Defender, Federal
                 Public Defender’s Office, Western District of New York,
                 Buffalo, NY, for Defendant-Appellee Monae Davis.
                               _______________




                                          2
KATZMANN, Chief Judge:

      This case requires us to interpret Congress’s latest effort to address the

longstanding disparity in federal statutory penalties for crack and powder

cocaine offenses. Monae Davis was convicted after pleading guilty to one count

of conspiracy to possess with intent to distribute and to distribute “50 grams or

more” of crack cocaine. In his plea agreement, Davis conceded that his “relevant

conduct” involved at least 1.5 kilograms of crack cocaine, but this larger quantity

was not reflected in either his indictment or judgment of conviction. At the time,

given Davis’s prior drug felony conviction, a conspiracy conviction involving 50

grams or more of crack cocaine mandated a statutory penalty range of 20 years to

life in prison. Accordingly, on August 26, 2009, the district court sentenced Davis

to the minimum of 20 years, to be followed by 10 years of supervised release.

      One year later, President Obama signed into law the Fair Sentencing Act of

2010. As relevant here, Section 2 of the Fair Sentencing Act increased from 50 to

280 grams the amount of crack cocaine necessary to trigger the statutory penalty

range that had applied to Davis. But the Fair Sentencing Act was not retroactive

to defendants who, like Davis, had been sentenced before its passage. That

situation persisted until, several years later, President Trump signed into law the




                                         3
First Step Act of 2018. Section 404 of the First Step Act authorizes district courts

to reduce sentences they previously imposed for a “covered offense,” which the

statute defines 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 . . . , that was committed before August 3, 2010.”

      Davis moved for a sentence reduction pursuant to Section 404, but the

government opposed his motion. The government argued that Davis was

ineligible for Section 404 relief because his relevant conduct involved at least 1.5

kilograms of crack cocaine, a quantity that would have triggered the same

penalty range both before and after the passage of the Fair Sentencing Act.

According to the government, that meant that Davis had not originally been

sentenced for a “covered offense” within the meaning of Section 404. The district

court rejected that argument, concluding that “it is the statute of conviction, not

actual conduct, that controls eligibility under the First Step Act.” United States v.

Davis, 423 F. Supp. 3d 13, 16 (W.D.N.Y. 2019). Exercising its discretion, the

district court then reduced Davis’s sentence to time served and eight years’

supervised release. Id. at 17–18.




                                          4
      On appeal, the sole question before us is whether Davis was originally

sentenced for a “covered offense” and is therefore eligible for relief under Section

404 of the First Step Act. For the reasons that follow, we conclude that he was.

The definitional language “a violation of a Federal criminal statute, the statutory

penalties for which were modified by section 2 . . . of the Fair Sentencing Act”

conditions eligibility on a defendant’s statute of conviction, not the defendant’s

“actual” conduct. Because the district court imposed a sentence for Davis’s

violation of, inter alia, 21 U.S.C. § 841(b)(1)(A)(iii), and because Section 2 of the

Fair Sentencing Act changed the penalties associated with that statute, we

conclude that Davis was sentenced for a “covered offense” and is therefore

eligible for discretionary relief under Section 404 of the First Step Act.

                                    BACKGROUND

      In May 2009, Monae Davis pleaded guilty to one count of a grand jury

indictment charging him with conspiring to violate the federal drug laws by

possessing with intent to distribute and distributing crack cocaine. In doing so,

Davis admitted to each element of the charged offense, including that “at least 50

grams” of crack cocaine “was reasonably foreseeable to [him] as being within the

scope of the [conspiracy].” App’x 74–75. Apart from admitting to each element of




                                           5
the charged offense, Davis also admitted “for the limited purpose of complying

with Rule 11(b)(3)” of the Federal Rules of Criminal Procedure that “the amount

involved in [his] relevant conduct” was “[a]t least 1.5 kilograms but less than 4.5

kilograms.” Id. at 75. 1

       The district court accepted Davis’s plea. Because a conspiracy to violate the

federal drug laws triggers the “same penalties as those prescribed for the offense,

the commission of which was the object of the . . . conspiracy,” 21 U.S.C. § 846,

Davis’s conviction subjected him to the statutory penalties set forth in 21 U.S.C.

§ 841(b)(1)(A), which mandated a minimum sentence of 10 years’ imprisonment

and a maximum of life imprisonment for any person who “manufacture[s],

distribute[s], . . . or possess[es] with intent to . . . distribute . . . 50 grams or more”

of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2006). In Davis’s case,




1       Rule 11(b)(3) provides that “[b]efore entering judgment on a guilty plea, the
court must determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
As we have explained, compliance with that Rule “does not require that the court be
satisfied that a jury would return a verdict of guilty or that the court weigh evidence to
assess whether it is even more likely than not that the defendant is guilty. Instead, [it]
requires the court to assure itself simply that the conduct to which the defendant admits
is in fact an offense under the statutory provision under which he is pleading guilty,”
such that, “were a jury to accept as fact [those] statements . . . , a guilty verdict would
follow.” United States v. Albarran, 943 F.3d 106, 121 (2d Cir. 2019). Unless otherwise
indicated, in quoting cases, we omit all citations, footnotes, emphases, alterations, and
internal quotation marks.

                                             6
subsection (b)(1)(A) mandated an even higher penalty — 20 years to life —

because Davis had a prior drug felony conviction. Id. § 841(b)(1)(A) (2006).

      On August 26, 2009, the district court sentenced Davis to 20 years of

imprisonment and 10 years of supervised release. In doing so, the district court

described its chosen sentence as “[t]he best that I can do . . . out of respect and

consideration for everything else that I know about in this particular case about

[Davis].” App’x 120. Davis appealed the sentence, and we affirmed. United States

v. Johnson, 425 F. App’x 66 (2d Cir. 2011) (summary order); see also Davis v. United

States, 643 F. App’x 19 (2d Cir. 2016) (summary order).

      A year after Davis was sentenced, President Obama signed into law the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The Fair

Sentencing Act 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). See

Dorsey v. United States, 567 U.S. 260, 266‒70 (2012). As relevant here, Section 2 of

the Fair Sentencing Act increased the threshold quantities of crack cocaine

required to trigger each of Section 841(b)(1)’s mandatory statutory penalty

ranges. See Fair Sentencing Act § 2(a), 124 Stat. at 2372. That provision’s effect is




                                          7
illustrated here by excerpting the relevant portions of 21 U.S.C. § 841 as they

existed at the time of Davis’s offense, with the Fair Sentencing Act’s

modifications overlaid:

      (a) Unlawful acts
            Except as authorized by this subchapter, it shall be unlawful
      for any person knowingly or intentionally —
                   (1) to manufacture, distribute, or dispense, or possess
             with intent to manufacture, distribute, or dispense, a
             controlled substance; or
                    (2) to create, distribute, or dispense, or possess with
             intent to distribute or dispense, a counterfeit substance.
      (b) Penalties
              Except as otherwise provided in section 849, 859, 860, or 861 of
      this title, any person who violates subsection (a) of this section shall
      be sentenced as follows:
            (1)(A) In the case of a violation of subsection (a) of this section
      involving —
      ....
                  (iii) 50 280 grams or more of a mixture or substance . . .
             which contains cocaine base;
      ....
      such person shall be sentenced to a term of imprisonment which
      may not be less than 10 years or more than life . . . . If any person
      commits such a violation after a prior conviction for a felony drug
      offense has become final, such person shall be sentenced to a term of
      imprisonment which may not be less than 20 years and not more
      than life imprisonment . . . .




                                          8
21 U.S.C. § 841 (2006), as modified by Fair Sentencing Act § 2(a)(1), 124 Stat. at

2372. 2 Those revisions were not retroactive, however, for defendants like Davis

who were sentenced before the Act’s passage on August 3, 2010. See Dorsey, 567

U.S. at 273.

       On December 21, 2018, President Trump signed into law the First Step Act

of 2018, Pub. L. No. 115-391, 132 Stat. 5194. This appeal turns on Section 404 of

the First Step Act, which addressed the retroactive application of the Fair

Sentencing Act’s reforms. Section 404 provides as follows:

       SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

              (a) DEFINITION OF COVERED OFFENSE. — In this section,
       the term “covered offense” means a violation of a Federal criminal
       statute, the statutory penalties for which were modified by section 2
       or 3 of the Fair Sentencing Act of 2010 . . . , that was committed
       before August 3, 2010.

              (b) DEFENDANTS PREVIOUSLY SENTENCED. — A court
       that imposed a sentence for a covered offense may, on motion of the
       defendant, the Director of the Bureau of Prisons, the attorney for the
       Government, or the court, impose a reduced sentence as if sections 2



2      Section 2 of the Act similarly increased from 5 to 28 grams the quantity of crack
cocaine needed to trigger 21 U.S.C. § 841(b)(1)(B)’s sentencing range of 5 to 40 years. See
Fair Sentencing Act § 2(a)(2), 124 Stat. at 2372 (codified at 21 U.S.C. § 841(b)(1)(B)(iii)).
Section 3 of the Act struck from the statute prohibiting simple possession of controlled
substances the heightened mandatory penalty ranges associated with certain threshold
quantities of crack cocaine. See Fair Sentencing Act § 3, 124 Stat. at 2372 (codified at 21
U.S.C. § 844(a)).

                                              9
      and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time
      the covered offense was committed.

             (c) LIMITATIONS. — No court shall entertain a motion made
      under this section to reduce a sentence if the sentence was
      previously imposed or previously reduced in accordance with the
      amendments made by sections 2 and 3 of the Fair Sentencing Act of
      2010 . . . or if a previous motion made under this section to reduce
      the sentence was, after the date of enactment of this Act, denied after
      a complete review of the motion on the merits. Nothing in this
      section shall be construed to require a court to reduce any sentence
      pursuant to this section.

First Step Act § 404, 132 Stat. at 5222. Section 404 authorizes district courts to

make a discretionary decision about whether and how to reduce a defendant’s

sentence, but only if the defendant was sentenced for a “covered offense.”

Section 404(b) thus conditions “eligibility — that is, when a court may entertain a

motion for relief under [Section 404] — on whether a sentence was imposed ‘for a

covered offense’” within the meaning of Section 404(a). United States v. Holloway,

956 F.3d 660, 664 (2d Cir. 2020).

      On February 1, 2019, Davis filed a motion for a reduced sentence under

Section 404. The government opposed the motion, arguing that “[g]iven [Davis’s]

actual conduct” — namely, the 1.5 kilograms that Davis admitted as relevant

conduct in his plea agreement — “the penalties for his offense of conviction were

not modified by the Fair Sentencing Act and he is, therefore, ineligible for relief.”



                                          10
App’x 144. The government further argued that “it cannot be disputed that, if the

Fair Sentencing Act was in effect at the time [Davis] committed his crime, the

indictment would have alleged ‘280 grams or more of cocaine base’ to trigger the

penalties of § 841(b)(1)(A). This is especially so given that [Davis’s] conduct

involved more than five times the necessary 280 grams.” Id. at 143.

      The district court granted Davis’s motion on March 6, 2019. See Davis, 423

F. Supp. 3d 13. As relevant here, the district court held that “it is the statute of

conviction, not actual conduct, that controls eligibility under the First Step Act.”

Id. at 16. Because Davis was convicted for a violation of “21 U.S.C. § 846 as it

relates to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851,” in the district court’s

words, and because “[t]he penalties associated with these statutes were modified

(reduced) by section 2 or 3 of the Fair Sentencing Act,” the district court

concluded that Davis had been sentenced for a “covered offense” within the

meaning of the First Step Act and was therefore eligible for relief. Id. at 17.

      The district court then exercised its discretion under Section 404 and

reduced Davis’s sentence of imprisonment to time served and his term of

supervised release to eight years. Id. at 17–18. The district court entered an order

accordingly on March 7, 2019, and the Bureau of Prisons released Davis the same




                                           11
day. Davis then served a brief term of imprisonment for a New York State

offense before being released on state parole on May 14, 2019.

      The government timely appealed.

                                     DISCUSSION

      Davis was convicted after pleading guilty to an indictment count that

charged him with a conspiracy to possess with intent to distribute and to

distribute “50 grams or more” of crack cocaine, a statutory offense described by

the interaction of Sections 846, 841(a)(1), and 841(b)(1)(A)(iii) of Title 21 of the

United States Code. Among the elements of that offense, to which Davis

specifically admitted, was Section 841(b)(1)(A)(iii)’s quantity threshold, then “50

grams or more.” In addition, outside the context of admitting to each of the

elements of the offense to which he was pleading guilty, Davis admitted that his

“relevant conduct” included at least 1.5 kilograms of crack cocaine.

      Davis was eligible for a sentence reduction under Section 404 of the First

Step Act only if he was sentenced for a “covered offense,” First Step Act § 404(b),

132 Stat. at 5222, where “the term ‘covered offense’ means a violation of a Federal

criminal statute, the statutory penalties for which were modified by section 2 or 3

of the Fair Sentencing Act of 2010 . . . , that was committed before August 3,

2010,” id. § 404(a). We must therefore decide whether Davis was sentenced for a


                                          12
“covered offense” notwithstanding his admission to conduct that would have

triggered the same penalty range under Section 841(b)(1)(A)(iii) of Title 21 even

after Section 2 of the Fair Sentencing Act increased that provision’s quantity

threshold from 50 to 280 grams. We review that question of statutory

interpretation de novo. See United States v. Williams, 551 F.3d 182, 185 (2d Cir.

2009).

         Several of our sister circuits have recently confronted the meaning of

“covered offense” in precedential opinions. See United States v. Boulding, No.

1706, 2020 WL 2832110 (6th Cir. June 1, 2020); United States v. Shaw, 957 F.3d 734

(7th Cir. 2020); United States v. Smith, 954 F.3d 446 (1st Cir. 2020); United States v.

Jackson, 945 F.3d 315 (5th Cir. 2019), cert. denied, No. 19-8036, 2020 WL 1906710

(U.S. Apr. 20, 2020); United States v. McDonald, 944 F.3d 769 (8th Cir. 2019); United

States v. Wirsing, 943 F.3d 175 (4th Cir. 2019), as amended (Nov. 21, 2019). In one

way or another, each has concluded that it is the statute under which a defendant

was convicted, not the defendant’s actual conduct, that determines whether a

defendant was sentenced for a “covered offense” within the meaning of Section

404(a). See Boulding, 2020 WL 2832110, at *6; Shaw, 957 F.3d at 738–39; Smith, 954




                                           13
F.3d at 448–49; Jackson, 945 F.3d at 320; McDonald, 944 F.3d at 772; Wirsing, 943

F.3d at 185–86. 3 For the reasons explained below, we agree.

      We begin, as we always do, with the language of the statute, “giving the

statutory terms their ordinary or natural meaning.” United States v. Lockhart, 749

F.3d 148, 152 (2d Cir. 2014). When that meaning is not clear, we make use of “a

variety of interpretive tools, including canons, statutory structure, and legislative

history.” Id.

      Section 404(a) defines the term “covered offense” to mean “a violation of a

Federal criminal statute, the statutory penalties for which were modified by

section 2 or 3 of the Fair Sentencing Act . . . , that was committed before August

3, 2010.” First Step Act § 404(a), 132 Stat. at 5222. In arguing for their differing

interpretations of Section 404, the parties chiefly dispute whether the term

“Federal criminal statute” or the complete phrase “violation of a Federal criminal

statute” is the antecedent of the limiting clause that follows, “the statutory




3      In a non-precedential unpublished opinion, the Eleventh Circuit appeared to
depart from this trend by affirming the denial of a defendant’s First Step Act motion on
the theory that “changes to the triggering quantities of [crack] cocaine for the
imposition of the mandatory sentencing scheme under § 841 [did] not impact [the
defendant’s] sentence because he was attributed with over five kilograms of [crack]
cocaine, far in excess of the new 280-gram triggering amount.” United States v. Means,
787 F. App’x 999, 1001 (11th Cir. 2019) (per curiam).

                                           14
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act.”

In other words, the parties ask us to decide whether Section 404(a) is better read

to confer eligibility where the Fair Sentencing Act “modified” the “statutory

penalties” for a “Federal criminal statute,” or instead where it “modified” the

“statutory penalties” for a “violation of a Federal criminal statute.”

      Davis urges the former view, that “Federal criminal statute” is the proper

antecedent. And, he argues, that means that a court should look only to whether

the Fair Sentencing Act modified the statutory penalties associated with a

defendant’s statute of conviction in determining whether the defendant was

sentenced for a “covered offense” within the meaning of Section 404(a) —

regardless of the defendant’s actual conduct. According to the government, by

contrast, the full phrase “violation of a Federal criminal statute” is the correct

antecedent, and we must therefore conclude from the word “violation” that a

defendant’s actual conduct determines whether the defendant was sentenced for

a “covered offense.”

      Davis argues that an interpretive canon known as the “nearest reasonable

referent” rule favors his view that the antecedent of the limiting clause is the

phrase immediately preceding it. While we do not appear to have employed this




                                          15
rule in the past, it seems to be a close cousin of the well-established “rule of the

last antecedent, according to which a limiting clause or phrase . . . should

ordinarily be read as modifying only the noun or phrase that it immediately

follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Because the limiting clause

here — “the statutory penalties for which were modified by section 2 or 3 of the

Fair Sentencing Act” — more immediately follows “Federal criminal statute”

than it does “violation of a Federal criminal statute,” Davis argues that we must

read “Federal criminal statute” as the antecedent of the limiting clause.

      Although “the rule of the last antecedent is not an absolute and can

assuredly be overcome by other indicia of meaning,” Lockhart v. United States, 136

S. Ct. 958, 963 (2016), “the last antecedent rule generally applies absent” such a

“contrary indication,” Lockhart, 749 F.3d at 152. The government argues that the

rule should not apply here at all for a reason discussed by the Supreme Court in

Cyan, Inc. v. Beaver County Employees Retirement Fund, 138 S. Ct. 1061 (2018). In

that case, the Court explained that the last antecedent rule is best applied where

an alternative reading would “stretch the modifier too far by asking it to qualify

a remote or otherwise disconnected phrase,” but is less persuasive where “the

modifier directly follows a concise and integrated clause.” Id. at 1077. Applying




                                          16
that lesson here, the government argues that, because the phrase “violation of a

Federal criminal statute” is “concise and integrated,” application of the “nearest

reasonable referent” canon to the embedded term “Federal criminal statute” is

inappropriate, even though the embedded term is nearer to the limiting clause.

      Notably, however, the Court in Cyan also cautioned against applying the

last antecedent rule opportunistically by “attaching the modifier to something

more than the last thing before it.” Id. Such caution is particularly warranted

here, as the phrase nearest to the limiting clause, “Federal criminal statute,” is

also “concise and integrated.” A reasonable reader is thus left searching for the

“closest noun or noun phrase that the modifier could reasonably reference,” id.,

with two grammatically permissible choices.

      In these circumstances, to label either phrase “concise and integrated” at

the expense of the other would beg the very question the “nearest reasonable

referent” canon is meant to answer: Which is the more reasonable referent of the

limiting clause? Put differently, this is a case in which mechanical application of

the “nearest reasonable referent” canon is less helpful than, and might even

distort, the common-sense linguistic principles the canon is meant to embody.




                                         17
      Fortunately, other elementary principles of statutory interpretation are

available to aid us in deciding which is the more reasonable referent of the

limiting clause. According to a principle that sometimes goes by the name of the

“anti-surplusage” canon, “[i]t is our duty to give effect, if possible, to every

clause and word of a statute,” Duncan v. Walker, 533 U.S. 167, 174 (2001), and we

must therefore try to “avoid statutory interpretations that render provisions

superfluous,” State St. Bank & Tr. Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir. 2003).

Here, because Sections 2 and 3 of the Fair Sentencing Act affected only violations

of “Federal criminal statute[s],” it is hard to see what purpose the phrase

“Federal criminal statute” could serve, or why Congress would have placed it

where it did, except to be the antecedent of the limiting clause. In other words, if

“violation of a Federal criminal statute” were the antecedent of the limiting

clause, then the meaning of Section 404(a) would be the same as if it read:

      [T]he term “covered offense” means a violation of a Federal criminal
      statute, the statutory penalties for which were modified by section 2
      or 3 of the Fair Sentencing Act . . . , that was committed before
      August 3, 2010.

Reading “violation of a Federal criminal statute” as the antecedent would thus

attribute no meaning to Congress’s decision to include the words “of a Federal

criminal statute” in the definition of “covered offense.” The anti-surplusage



                                          18
canon sensibly instructs us to avoid that reading if we can. By contrast, treating

“Federal criminal statute” as the antecedent of the limiting clause gives effect to

all of the words Congress used. 4

       Thus, as employed here, the combination of the “nearest reasonable

referent” canon and the “anti-surplusage” canon embody a common-sense

insight about the way Congress crafted the language of Section 404(a). Because

the phrase “Federal criminal statute” merely restates descriptive information that

is already supplied by the provision’s focus on Sections 2 and 3 of the Fair

Sentencing Act, the phrase would be superfluous if it did not independently

contribute to the provision as a whole; faced with a choice between two




4      We are unpersuaded by the government’s objection that this interpretation
renders Congress’s use of the word “statutory” redundant in the clause “the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act.”
According to the government, “there is no need to specify ‘statutory’ penalties if the
referent [of the limiting clause] is ‘Federal criminal statute.’” Reply Br. 9. But of course,
both statutory and nonstatutory penalties — such as enhanced Sentencing Guidelines
ranges — may follow from a conviction under a particular statute. Indeed, the Fair
Sentencing Act spurred rapid conforming amendments to the Sentencing Guidelines,
which included revisions “[t]o account for” Section 2’s “statutory changes.” 76 Fed. Reg.
24960, 24963 (May 3, 2011). Including the word “statutory” in the limiting clause
removes any doubt that it is only the statutory penalties modified by Section 2 and 3,
and not any Guidelines revisions that flowed from them, that are relevant to the
definition of a “covered offense.” See Wirsing, 943 F.3d at 186.

                                             19
grammatically permissible options to serve as the “nearest” referent, that insight

breaks the tie as to which is more “reasonable.”

       We therefore hold that the phrase “Federal criminal statute” is the

antecedent of the limiting clause, “the statutory penalties for which were

modified by section 2 or 3 of the Fair Sentencing Act.” 5 That means that, under

Section 404(a) of the First Step Act, if the statutory penalties associated with a

particular “Federal criminal statute” were modified by Section 2 or 3 of the Fair

Sentencing Act, then any defendant sentenced for violating that “Federal

criminal statute” has been sentenced for a “covered offense.” Section 404(a) thus

delineates its coverage by reference to a category of statutory offenses for which

defendants might be sentenced, not the virtually infinite set of specific actions

that might give rise to those sentences. In other words, it is a defendant’s

statutory offense, not his or her “actual” conduct, that determines whether he has



5      In this Court’s recent decision United States v. Holloway, some language in
passing suggested that a defendant’s eligibility turned on whether “he was sentenced
for a particular ‘violation of a Federal criminal statute,’ and that the applicable statutory
penalties for that violation were modified by the specified provisions of the Fair
Sentencing Act.” 956 F.3d at 664. In that case, because the question was immaterial to
the holding, there was no occasion for a detailed inquiry into which phrase was the
proper antecedent of the limiting clause “the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act” and the panel did not decide the
question of the proper antecedent. As discussed above, we hold today that “Federal
criminal statute” is the antecedent of the limiting clause that immediately follows.

                                             20
been sentenced for a “covered offense” within the meaning of Section 404(a), and

is consequently eligible for relief under Section 404(b). 6

       This conclusion is buttressed by further evidence in the statutory text. The

term “covered offense” is defined as a violation of a Federal criminal statute for

which “the statutory penalties . . . were modified by section 2 or 3 of the Fair

Sentencing Act.” First Step Act § 404(a), 132 Stat. at 5222 (emphasis added). As

noted above, Sections 2 and 3 of the Fair Sentencing Act did not apply to

defendants like Davis who were sentenced prior to August 3, 2010, see Dorsey,

567 U.S. at 273, meaning that the penalties for those defendants’ actual conduct

were not modified by Section 2 or 3 of the Fair Sentencing Act. Accepting the



6       The government argues that, if Section 404 eligibility turns on whether a
defendant was sentenced for violating a certain type of “Federal criminal statute,” that
would lead to the improbably broad result that any defendant sentenced for violating
Section 841(a), or even the Controlled Substances Act, would be eligible, because those
could be understood as “statutes” whose penalties were modified by Section 2 and 3 of
the Fair Sentencing Act. But we 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. That conclusion is
consistent with the way courts describe the statutory offenses in this context, see, e.g.,
Bailey v. United States, 568 U.S. 186, 191 (2013) (“Bailey was charged with . . . possession
of [crack] cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii) . . . .”); United States v. Lee, 523 F.3d 104, 105 (2d Cir. 2008) (“Lee pleaded
guilty . . . to one count of possession with intent to distribute fifty grams or more of
cocaine base (‘crack’) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii).”), and indeed,
with Davis’s own indictment, which characterized his crack cocaine conspiracy charge
as a “violation of Title 21, United States Code, Sections 841(a)(1) . . . and 841(b)(1)(A); all
in violation of Title 21, United States Code, Section 846.” App’x 68.

                                              21
government’s “actual conduct” reading of Section 404(a) would thus imply that

no defendant sentenced before the Fair Sentencing Act’s effective date could be

eligible for relief, rendering Section 404 a dead letter.

      If Section 404(a)’s definition refers to a defendant’s statutory offense,

however, that paradox is avoided. For example, in this case Davis was convicted

of and sentenced for violating Sections 846, 841(a)(1), and 841(b)(1)(A)(iii) of Title

21 of the United States Code. Section 2 of the Fair Sentencing Act modified the

statutory penalties associated with a violation of those provisions by increasing

Section 841(b)(1)(A)(iii)’s quantity threshold from 50 to 280 grams. Section 2 thus

modified — in the past tense — the penalties for Davis’s statutory offense, even

though Davis was sentenced too early to benefit from the change. 7


7       Our conclusion is unaffected by the manner in which the Fair Sentencing Act
modified the statutory penalties associated with Davis’s statutory offense: namely, by
holding the penalty provisions of Section 841 constant and adjusting the threshold
quantities of crack cocaine needed to trigger each penalty provision. The government
suggests that “Section 2 [of the Fair Sentencing Act] did not modify any statutory
penalties; rather, it modified the threshold quantities giving rise to the same, pre-
existing penalties.” Reply Br. 9–10. But that phrasing may have been the simplest way
to legislate within the structure of Section 841, which begins with an omnibus
prohibition on certain conduct related to controlled substances, id. § 841(a), mandates
penalty ranges keyed to different threshold quantities of each substance, id.
§ 841(b)(1)(A), (b)(1)(B), and then lists the threshold quantity for each substance in
separate subsections of Sections 841(b)(1)(A) and (b)(1)(B). Modifying the penalty
ranges in Section 841(b)(1)(A) or Section 841(b)(1)(B) would have affected every
controlled substance listed in either subsection, so one parsimonious way to single out
crack cocaine offenses for the reforms Congress had in mind was to modify the

                                           22
      We therefore hold that Davis was sentenced for a “covered offense” within

the meaning of Section 404(a). The government resists this conclusion by

appealing to the purposes of Section 404, arguing that our interpretation will

create unfair disparities among defendants depending on the timing of their

sentence. To illustrate that argument, the government compares Davis to a

defendant whose conduct also involved at least 1.5 kilograms of crack cocaine,

but who was charged and convicted after the passage of the Fair Sentencing Act.

Such a defendant would be subject to Section 841(b)(1)(A)’s heightened statutory

penalties, the government argues, but would not be eligible now for any relief

under Section 404. According to the government, “this approach generates a new

disparity, granting earlier-sentenced defendants procedural relief unavailable to

similarly situated, later-sentenced defendants.” Appellant’s Br. 20.

      We find the government’s argument unpersuasive for several reasons.

First, the fact that our interpretation leaves some disparities in place is hardly an




threshold quantities listed in Sections 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii). Moreover,
the government’s argument ignores the vernacular against which the First Step Act was
enacted: for example, in promulgating its Guidelines revisions following the passage of
the Fair Sentencing Act, the Sentencing Commission described Section 2 as having
“reduced the statutory penalties for offenses involving manufacturing or trafficking in
crack cocaine by increasing the quantity thresholds required to trigger a mandatory
minimum term of imprisonment.” 76 Fed. Reg. at 24963.

                                            23
objection. The Fair Sentencing Act and First Step Act aimed to eliminate

unwarranted sentencing disparities, to be sure, but not all sentencing disparities.

For example, although it reduced the crack-powder disparity from 100-to-1, the

Fair Sentencing Act left in place a disparity of approximately 18-to-1.

Furthermore, if it is unfair to afford some pre-Fair Sentencing Act defendants a

procedural opportunity that is unavailable to similar post-Fair Sentencing Act

defendants, we doubt whether it would be consistent with the First Step Act’s

overarching purposes to solve that problem by “leveling down” — that is, by

withholding the opportunity from everyone alike.

      Second, the government’s concern that this interpretation grants

defendants like Davis an “unwarranted procedural windfall” is unconvincing.

Reply Br. 20. The government’s turn of phrase — “procedural windfall” — does

not reflect the reality that many defendants who are eligible for Section 404 relief

may receive no substantive relief at all. Section 404 relief is discretionary, after

all, and a district judge may exercise that discretion to deny relief where

appropriate. See First Step Act § 404(c), 132 Stat. at 5222; Holloway, 956 F.3d at

666. It is hardly surprising that Congress would prefer to extend such

“procedural relief” broadly to ensure that substantive relief would be available




                                          24
everywhere it is appropriate, safe in the knowledge that district courts would

retain discretion to deny relief where it is not appropriate. 8

       Finally, and in any event, we see a more fundamental problem with the

government’s argument that Section 404 creates unfair disparities by

withholding procedural relief from post-Fair Sentencing Act defendants while

affording it to similarly situated pre-Fair Sentencing Act defendants. By

definition, all post-Fair Sentencing Act defendants have received the procedural

opportunity that Section 404 affords to pre-Fair Sentencing Act defendants,

namely, the opportunity to be sentenced “as if sections 2 and 3 of the Fair

Sentencing Act . . . were in effect” at the time their offense was committed. First

Step Act § 404(b), 132 Stat. at 5222. 9 According to the government, however,

Davis’s interpretation of Section 404 would create a problematic disparity

between post-Fair Sentencing Act defendants sentenced under the Fair



8      For the same reason, we do not share the government’s concern that, “[i]f every
defendant sentenced under Section 841(b)(1)(A) is eligible for a discretionary sentence
reduction, then even a defendant who pleaded guilty to an indictment charging more
than 280 grams would be eligible.” Reply Br. 21. Eligible, but hardly assured of relief,
which would remain in the district court’s discretion to grant or withhold.

9      To be precise, the post-Fair Sentencing Act defendants received a more robust
procedural guarantee: they must be sentenced according to the Act’s revised quantity
thresholds, whereas those eligible for Section 404 relief “may” be, at the discretion of
the sentencing court. First Step Act § 404(b), 132 Stat. at 5222.

                                            25
Sentencing Act’s heightened crack cocaine quantity thresholds and pre-Fair

Sentencing Act defendants who would have received the same sentence

regardless of the Fair Sentencing Act’s intervening changes. 10

      Embedded in that concern is the assumption that there is a knowable set of

pre-Fair Sentencing Act defendants who would have received the same sentence

regardless of the Fair Sentencing Act. Indeed, the government has taken the

position that Davis is such a defendant, arguing below that “it cannot be

disputed that, if the Fair Sentencing Act was in effect at the time [Davis]

committed his crime, the indictment would have alleged ‘280 grams or more of

cocaine base’ to trigger the penalties of § 841(b)(1)(A).” App’x 143.

      Of course, that assumption can be disputed, in this case and others,

because it is only an assumption. It would have been up to the grand jury, not




10     The government reports that it has sought to address this problem by
“disput[ing] eligibility” under Section 404(a) “only in cases where the government
established by at least a preponderance of the evidence, or the defendant admitted,
quantities exceeding the Fair Sentencing Act thresholds.” Reply Br. 20. The government
admits, however, that “perhaps not all of these cases would have resulted in convictions
under the Fair Sentencing Act’s higher thresholds,” even if “many of them would
have.” Id. at 20–21. Again, we find it perfectly consistent with the purposes of the First
Step Act that Congress would have extended Section 404 eligibility to all defendants
sentenced under Section 841(b)(1)’s pre-Fair Sentencing Act crack cocaine penalties,
while relying on judicial discretion to solve the more complex and individualized
problem of which such defendants should ultimately receive sentencing relief.

                                           26
the government, to choose whether to indict Davis for an offense involving that

amount. And it would have been up to Davis, not the government, to choose

whether to plead guilty to such an offense, or whether to contest the indictment

at trial. And finally, it would have been up to a jury — not the government — to

decide whether the greater amount had been proved beyond a reasonable doubt.

Only then would Section 841(b)(1)(A) have constrained the sentencing court to

impose (at least) the penalty that Davis received. As those mounting

assumptions illustrate, we cannot afford the government the hypothetical “do-

over” it seeks. Even under a statutory regime designed to constrain courts’

sentencing discretion, there is still more standing between a particular defendant

and a particular sentence than the government’s charging decision.

      Thus, while we can understand the government’s frustration that it could

not have foreseen new, retroactive hurdles to come, it was Congress’s decision to

confer Section 404 eligibility broadly — and thereby to upset the government’s ex

ante expectations about what sentences certain defendants would serve. But

Congress also gave district courts the discretion to deny sentencing reductions to

eligible defendants where appropriate. Here, the government does not challenge

the district court’s exercise of discretion under Section 404(b). Therefore, and




                                         27
because we agree with the district court that Davis was eligible to seek such

relief, we affirm the district court’s decision to grant it.

                                     CONCLUSION

      For the foregoing reasons, the judgment of the district court is

AFFIRMED.




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