          United States Court of Appeals
                     For the First Circuit


No. 19-1615

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                           CARL SMITH,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                             Before

                   Lynch, Stahl, and Kayatta,
                         Circuit Judges.


     Behzad Mirhashem, Assistant Federal Public Defender, for
appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.


                          April 8, 2020
            KAYATTA, Circuit Judge.      Having served thirteen years of

a seventeen-and-a-half-year sentence for distributing less than

two grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C), Carl Smith seeks a sentence reduction under Section 404

of the First Step Act of 2018.           The district court denied his

request, finding that he was ineligible for such a possible

reduction because his offense was not a "covered offense" under

the Act.    For the following reasons, we reverse.

                                   I.

            In January 2007, a federal jury found Smith guilty on

two counts of distribution of crack cocaine and one count of

distribution of powder cocaine, all in violation of 21 U.S.C.

§ 841(a)(1).        The   presentence      investigation    report      (PSR)

attributed to Smith a total of 1.69 grams of crack cocaine and

3.36 grams of powder cocaine.           These quantities fell below the

threshold    for    a     mandatory-minimum     sentence.         See     id.

§ 841(b)(1)(C).     However, the PSR determined that Smith was a

career   offender   under    U.S.S.G.    § 4B1.1,   based   on   two    prior

convictions for residential burglary and a prior conviction for

drug distribution.      Smith's Guidelines Sentencing Range (GSR) was

thus 210–262 months' imprisonment.          In April 2007, the district

court sentenced Smith to 210 months.         See United States v. Smith,

531 F.3d 109, 113 (1st Cir. 2008) (affirming Smith's sentence).




                                  - 2 -
             In August 2010, President Obama signed into law the Fair

Sentencing     Act,   which   raised   the   crack-cocaine   threshold

quantities for triggering mandatory-minimum sentences.       See Fair

Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372,

2372.   We display the textual modifications to § 841 wrought by

the Fair Sentencing Act with bolding and strikes as follows:

             (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 . . . .

             (b) Penalties
             Except as provided in section 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--
             . . .
             (ii) 5 kilograms or more of a mixture or
             substance containing detectable amounts of
             [cocaine] . . .
             (iii) 50 grams 280 grams or more of a
             mixture or substance described in clause (ii)
             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 . . . .
             (B) In    the   case   of  a   violation   of
             subsection (a) of this section involving--
             . . .
             (ii) 500 grams or more of a mixture or
             substance containing detectable amounts of
             [cocaine] . . .




                                 - 3 -
              (iii) 5 grams 28 grams or more of a mixture
              or substance described in clause (ii) which
              contains cocaine base . . .
              such person shall be sentenced to a term of
              imprisonment which may not be less than
              5 years and not more than 40 years . . . .
              (C) In the case of a controlled substance in
              schedule I or II, . . . except as provided in
              subparagraphs (A), (B), and (D), such person
              shall be sentenced to a term of imprisonment
              of not more than 20 years . . . .

21 U.S.C. § 841 (effective Aug. 3, 2010); see Fair Sentencing Act

of 2010 § 2, 124 Stat. at 2372.1

              The   modifications    did     not    apply    retroactively      to

defendants like Smith who were sentenced before passage of the

Fair Sentencing Act.         See Dorsey v. United States, 567 U.S. 260,

264 (2012); United States v. Flores-Rivera, 787 F.3d 1, 33 (1st

Cir. 2015).     But in December 2018, President Trump signed into law

the   First    Step   Act.     See   First   Step    Act    of   2018,   Pub.   L.

No. 115-391, § 404, 132 Stat. 5194, 5222.            Section 404 of that Act



      1 The     provisions     in      § 841(b)(1)(A)(ii)     and
§ 841(b)(1)(B)(ii) apply to powder cocaine, and the provisions in
§ 841(b)(1)(A)(iii) and § 841(b)(1)(B)(iii) apply to crack
cocaine. A principal purpose of the Fair Sentencing Act was to
reduce the much maligned 100-to-1 ratio between powder- and
crack-cocaine quantities for triggering the same minimum
sentences, which many believed created racial disparities in
sentencing due to the higher prevalence of crack cocaine in
African-American communities. See Dorsey v. United States, 567
U.S. 260, 266–68 (2012); Kimbrough v. United States, 552 U.S. 85,
98 (2007); see also United States v. Robinson, 241 F.3d 115, 118
(1st Cir. 2001) (explaining the three-tiered penalty regime under
the Controlled Substances Act as modified by the Anti-Drug Abuse
Act of 1986), abrogated on other grounds by Alleyne v. United
States, 570 U.S. 99 (2013).


                                     - 4 -
offers certain persons convicted under § 841 prior to enactment of

the Fair Sentencing Act a chance to seek a retroactively reduced

sentence.    It states:

            (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 a section 2 or 3 of the Fair
            Sentencing Act of 2010 (Public Law 111-220;
            124 Stat. 2372), 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
            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.

First Step Act of 2018 § 404, 132 Stat. at 5222;2 see also 18 U.S.C.

§ 3582(c)(1)(B)     ("[T]he   court   may   modify   an    imposed   term   of

imprisonment   to   the   extent   otherwise    expressly      permitted    by

statute . . . .").

            Smith moved in April 2019 for a sentence reduction under

Section 404 of the First Step Act.           The government opposed his

motion on the grounds that Smith had not been sentenced for a

"covered offense" as defined in that statute.             In a nutshell, the




     2  Not relevant here, Section 3 of the Fair Sentencing Act
eliminates the mandatory minimum for simple possession in
violation of 21 U.S.C. § 844(a). See 124 Stat. at 2372.


                                   - 5 -
government reasoned that, because the penalties for the quantity

of controlled substances attributed to Smith remained the same

after passage of the Fair Sentencing Act, he was not convicted for

"a violation of a Federal criminal statute, the statutory penalties

for which were modified."             The district court agreed and denied

the motion.      Smith timely appealed, presenting an issue of law for

which our review is de novo.            See United States v. Brown, 500 F.3d

48, 59 (1st Cir. 2007).

                                         II.

                                          A.

              We begin with the statutory text, asking first whether

the phrase "statutory penalties for which were modified" in the

definition of "covered offense" in the First Step Act applies to

the    term    "Federal      criminal    statute"       (i.e.,    the     statute   of

conviction)      or    the   term     "violation"       (i.e.,    the     defendant's

particular conduct).         Smith argues the former, and the government

acknowledges      that    this   argument        "is    supported    by    case     law

construing 'covered offense.'"            See United States v. Jackson, 945

F.3d 315, 320 (5th Cir. 2019); United States v. Wirsing, 943 F.3d

175, 185 (4th Cir. 2019); United States v. Williams, 402 F. Supp.

3d    442,    445–48   (N.D.   Ill.     2019);    see   also     United    States   v.

McDonald, 944 F.3d 769, 772 (8th Cir. 2019) ("The First Step Act

applies to offenses, not conduct, and it is [the defendant's]

statute of conviction that determines his eligibility for relief."


                                        - 6 -
(citations omitted)); United States v. Beamus, 943 F.3d 789, 791

(6th Cir. 2019) (per curiam) ("[The defendant] was convicted of an

offense for which the Fair Sentencing Act modified the statutory

penalty . . . .").    With no hint of an argument by the government

or the district court that we should hold otherwise, we will assume

that this case law is correct.

          We   next   ask   whether   the   phrase   "Federal   criminal

statute" in the First Step Act refers to 21 U.S.C. § 841 generally

or only to a subsection of § 841, and, if the latter, which one.

Smith argues that the "Federal criminal statute" is § 841(a), and

that "the statutory penalties" for that subsection are set out in

§ 841(b)(1).    The headings of these subsections bolster this

argument -- § 841(a) is labeled "[u]nlawful acts" and § 841(b) is

labeled "[p]enalties." See 21 U.S.C. § 841(a), (b); see also Merit

Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018)

("Although section headings cannot limit the plain meaning of a

statutory text, they supply cues as to what Congress intended."

(citations and internal quotation marks omitted)).3        The body of

the statute also bolsters Smith's argument -- § 841(a) lists the

acts that violate the law (manufacturing, distributing, etc.),

whereas § 841(b) correlates increasing penalties to the quantities


     3  Here we look to the headings within § 841 not to interpret
that Section itself, but rather to inform us as to Congress's
understanding of that Section when it later enacted the First Step
Act. As such, the headings take on added significance.


                                 - 7 -
associated with the acts that violate § 841(a).                    Compare id.

§ 841(a)(1), with id. § 841(b)(1)(A), (B).

              The government nevertheless argues that the "Federal

criminal statute" referred to in Section 404 of the First Step Act

is each specific subsection of § 841(b)(1).              In other words, the

government     contends,       § 841(b)(1)(A)(iii),     § 841(b)(1)(B)(iii),

and § 841(b)(1)(C) are each different statutes with their own

statutory penalties.           In making this argument, the government

relies heavily on Alleyne v. United States, 570 U.S. 99 (2013).

In Alleyne, the Supreme Court held that mandatory-minimum-raising

facts (like the threshold drug quantities in § 841(b)(1)) must be

proven   to    a    jury   beyond   a   reasonable   doubt     under   the   Sixth

Amendment.         See id. at 112–16 (applying Apprendi v. New Jersey,

530 U.S. 466 (2000)).          Thus, says the government, the subsections

of § 841(b)(1) set out different elements and are hence different

"Federal criminal statute[s]."

              We    disagree   with     the   government's   reasoning.        The

relevant statute that Smith violated is either § 841 as a whole,

or § 841(a), which describes all the conduct necessary to violate

§ 841.   Section 841(b)(1), in turn, sets forth how the penalties

for that conduct vary based on drug quantity.                The fact that the

Constitution's        procedural    requirements     mandate    that   the   drug

quantity be found by the jury to enhance the minimum penalty does

not mean that a convicted defendant did not commit the violation


                                        - 8 -
identified by § 841(a).      See Butterworth v. United States, 775

F.3d 459, 466–67 (1st Cir. 2015) (treating Alleyne as announcing

a new rule of criminal procedure); United States v. Robinson, 241

F.3d 115, 118 (1st Cir. 2001) ("The penalties for violating

section 841(a)(1) are articulated in 21 U.S.C. § 841(b).").          Even

accepting the government's point that Alleyne treats the quantity

specifications of § 841(b)(1) as elements of the crime to be

proven, we are not trying to determine which section or sections

set forth the elements of a crime in the abstract.        Rather, we aim

to determine what Congress meant by the phrase "Federal criminal

statute, the statutory penalties for which were modified by . . .

the Fair Sentencing Act," First Step Act of 2018 § 404(a), 132

Stat. at 5222.   We see no reason to believe that Congress would

have thought the holding in Alleyne concerning criminal procedure

and the elements of a crime informed the meaning of the phrase

"Federal criminal statute."      Instead, we agree with Smith that

Congress more likely intended to refer to § 841(a) (or § 841 as a

whole4) as the "Federal criminal statute" in question.

          We   ask   next   whether   "the   statutory   penalties   for"

§ 841(a)(1), the statute of conviction in this case, "were modified

by section 2 of the Fair Sentencing Act of 2010."        Id.   The answer




     4  We need not actually decide whether the applicable statute
is § 841 or § 841(a) because neither party argues that it would
make any difference in this case.


                                 - 9 -
is an obvious "yes."              The term "modified," given its ordinary

meaning, includes any change, however slight.                     See MCI Telecomms.

Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225 (1994) (citing

various dictionary definitions of the word "modify").                         As noted,

Section 2 of the Fair Sentencing Act raised, and hence "modified,"

the   thresholds      for    crack-cocaine           offenses    under      § 841(b)(1).

Since       § 841(b)(1)     was   "modified"         as   to    crack    cocaine,     and

§ 841(b)(1)       sets    forth     all        the    "statutory       penalties"     for

§ 841(a)(1), the violation in this case is a "covered offense"

under Section 404 of the First Step Act.5

               Even under the government's preferred definition of

"Federal      criminal      statute,"      we    would    still       consider    Smith's

conviction to be a "covered offense."                  The government argues that

Smith was convicted under § 841(b)(1)(C) for distributing a small

(or indeterminate) quantity of a controlled substance.                           Thus, in

the government's view § 841(b)(1)(C) is the "Federal criminal

statute" in question, and since the Fair Sentencing Act did not

literally      change     the     text    of    § 841(b)(1)(C),         the    statutory

penalties       for   that      subsection       were     not     "modified."         But

§ 841(b)(1)(C)          applies      to        any    "case      of     a     controlled




        5
        A more difficult question would be whether a violation of
§ 841(a)(1) involving only a controlled substance other than crack
cocaine (heroin, for example) would also be considered a "covered
offense." Since Smith was convicted for distributing crack cocaine
(as well as powder cocaine), we need not decide that issue.


                                          - 10 -
substance . . . except as provided in subparagraphs (A), (B), and

(D)."    21 U.S.C. § 841(b)(1)(C).   Since § 841(b)(1)(C) is defined

in part by what § 841(b)(1)(A) and § 841(b)(1)(B) do not cover, a

modification to the latter subsections also modifies the former by

incorporation.   In effect, § 841(b)(1)(C) set forth the penalties

for quantities between zero and five grams of crack cocaine prior

to the Fair Sentencing Act, and between zero and twenty-eight grams

after.     This is a modification.      The fact that the prescribed

sentencing range (zero to twenty years) under § 841(b)(1)(C) did

not change is immaterial -- the Fair Sentencing Act did not change

the mandatory minimum or maximum for violations of § 841(b)(1)(A)

or § 841(b)(1)(B), either, only the threshold quantities.

            The change in § 841(b)(1)(C)'s upper bound is no small

point, even for defendants guilty of distributing less than five

grams of crack, because the statutory benchmarks likely have an

anchoring effect on a sentencing judge's decision making.        Cf.

Dorsey, 567 U.S. at 267–69 (explaining how the base-offense-level

quantities under U.S.S.G. § 2D1.1(c) are keyed to the statutory

quantities in § 841(b)).     Smith's violation, in context, looks

less significant and thus perhaps less worthy of as long of a

sentence under § 841 as the statute exists now than as it existed

at the time of his sentencing.       Under the old version of § 841,

1.69 grams of crack was 34% of a quantity mandating a five-year

minimum.    Now it is only 6% of that threshold.


                               - 11 -
             The government's own view of how the First Step Act works

buttresses    our   conclusion      that     Congress    intended     to     provide

potential    relief    to   persons     like   Smith     whose   penalties       were

dictated by § 841(b)(1)(C) and therefore were only indirectly

affected      by      the     minimum        sentences      called         for     by

§ 841(b)(1)(A)(iii) and § 841(b)(1)(B)(iii).                   Over eight years

elapsed between passage of the Fair Sentencing Act and passage of

the First Step Act.         Therefore, the First Step Act could provide

no   meaningful     recourse    for     defendants      whose    sentences       were

directly driven by (i.e., set at) the five- and ten-year minima.

So the principal group of potential beneficiaries on the day the

First Step Act was enacted, even as among those who the government

concedes     were   sentenced     for       covered     offenses,     were       those

defendants who received sentences that were in excess of, and thus

only indirectly affected by, the penalty floors.                      See, e.g.,

Beamus, 943 F.3d at 790 (holding that a career offender sentenced

in 2002 under § 841(b)(1)(B)(iii) was eligible for First Step Act

relief).     Indeed, were this group not covered, the First Step Act

would hardly have been the "historic achievement" it was claimed

to be.      See 164 Cong. Rec. S7749 (daily ed. Dec. 18, 2018)

(statement of Sen. Leahy) ("[W]hen I look at the scope of reforms

before us today[,] including . . . retroactive application of the

Fair   Sentencing      Act, . . .       I   believe     this     is   a    historic

achievement."); see also Stone v. INS, 514 U.S. 386, 397 (1995)


                                      - 12 -
("When Congress acts to amend a statute, we presume it intends its

amendment to have real and substantial effect.").               And we think it

most unlikely that Congress intended to deny sentencing relief to

defendants    guilty   of    distributing      small   quantities    of   crack

cocaine while allowing relief for those defendants guilty of

distributing larger amounts whose original sentences were not

driven by the mandatory minimum.

             The government has drawn our attention to several other

circuit court opinions holding that defendants sentenced under

§ 841(b)(1)(C) were not convicted for a "covered offense" under

Section 404.       See      United    States    v.     Foley,    No. 19-11847,

2020 WL 104349, at *1 (11th Cir. Jan. 9, 2020) (per curiam); United

States v. Brown, 785 F. App'x 189, 190 (4th Cir. 2019) (mem.) (per

curiam); United States v. Martinez, 777 F. App'x 946, 947 (10th

Cir. 2019) (mem.); United States v. Duggan, 771 F. App'x 261, 261

(4th Cir. 2019) (mem.) (per curiam).           Those opinions, all of which

are unpublished and nonprecedential in their own circuits, contain

very little analysis and do not address the arguments raised by

Smith in this case.      As such, we do not find them persuasive.6




     6  After oral arguments in a case raising this same issue,
the Fourth Circuit recently vacated the denial of a defendant's
motion for First Step Act relief for reasons that "will be further
explained in [the court's] forthcoming opinion." United States v.
Woodson, No. 19-6976, 2020 WL 1623742 (4th Cir. Apr. 2, 2020)
(mem.).


                                     - 13 -
                                      B.

             Now that we have determined that Smith was convicted for

a covered offense, the issue remains as to what exactly his remedy

is.    There are at least two possibilities:        he might be eligible

for plenary resentencing, in which case his GSR would potentially

be    recalculated   under    the   current   version   of    the      Sentencing

Guidelines    Manual,   see   U.S.S.G.     § 1B1.11(a),      or   he    might    be

eligible for a procedure (either with or without a hearing) similar

to that outlined in the Godin/Ahrendt doctrine, in which case his

GSR would remain as it was in 2007 but the district court might

nevertheless vary downwardly, see United States v. Frates, 896

F.3d 93, 102 (1st Cir. 2018) (citing United States v. Ahrendt, 560

F.3d 69 (1st Cir. 2009); United States v. Godin, 522 F.3d 133 (1st

Cir. 2008)).     This is a significant issue, because the Guidelines

have been amended since Smith was sentenced in 2007; most notably,

burglary is no longer considered a "crime of violence."                         See

U.S.S.G. § 4B1.2(a)(2); id. app. C, amend. 798 (effective Aug. 1,

2016).7    So Smith would not be considered a career offender subject




       7The Guidelines' table for determining the base offense
level based on drug quantities has also been amended to mirror the
Fair Sentencing Act's changes to the statutory penalties.      See
U.S.S.G. § 2D1.1(c); id. app. C, amend. 750 (effective Nov. 1,
2011) (making permanent the temporary changes of id. app. C,
amend. 748 (effective Nov. 1, 2011)); see also Dorsey, 567 U.S. at
267–69.


                                    - 14 -
to U.S.S.G. § 4B1.1 under the current manual, and his GSR would

presumably be much lower now.8

          The parties have not sufficiently briefed this issue on

appeal, so we leave it to the district court to decide in the first

instance on remand.9 We make two additional points, though. First,

regardless of what procedure applies, nothing in this opinion

should be construed as mandating a reduced sentence.     The First

Step Act gives district courts discretion to grant or deny a

sentencing reduction.   First Step Act of 2018 § 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.").   We hold

only that Smith's violation was a "covered offense."    Second, we

encourage the parties and the district court not to delay this

case longer than necessary.       Smith has already served three

quarters of his lengthy sentence, so the window for considering

meaningful relief is dwindling.




     8  Of course, even if the Godin/Ahrendt procedure applies,
the district court could still take into consideration this insight
from the updated manual in deciding whether a downward variance is
appropriate. See U.S.S.G. § 1B1.11(b)(2) ("[I]f a court applies
an earlier edition of the Guidelines Manual, the court shall
consider subsequent amendments, to the extent that such amendments
are clarifying rather than substantive changes."); see also United
States v. Rodriguez, 630 F.3d 39, 42 (1st Cir. 2010).
     9  We likewise leave it to the district court to determine
the impact of Smith's conviction for distributing 3.36 grams of
powder cocaine.


                              - 15 -
                                   III.

          For   the   foregoing   reasons,   we   reverse   the   district

court's order in this matter and remand for further proceedings

consistent with this opinion.




                                  - 16 -
