                                  PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT

                _____________

                 No. 19-2499
                _____________

       UNITED STATES OF AMERICA

                       v.

            ANTHONY JACKSON,
                      Appellant

   Appeal from the United States District Court
      for the Eastern District of Pennsylvania
       District Court No. 2-03-cr-00642-001
District Judge: The Honorable Michael M. Baylson
                   ____________

                 No. 19-2517
                _____________

       UNITED STATES OF AMERICA

                       v.

               KEVIN HARRIS,
                     Appellant
        Appeal from the United States District Court
          for the Western District of Pennsylvania
            District Court No. 2-06-cr-00182-001
       District Judge: The Honorable Nora B. Fischer

                   Argued March 4, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE,
                    Circuit Judges

                    (Filed: July 1, 2020)


Michelle Rotella
Robert A. Zauzmer                       [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee United States of America

Christy Martin                           [ARGUED]
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center
Suite 540 West
Philadelphia, PA 19106
        Counsel for Appellant Jackson

Laura S. Irwin

                             2
Ira M. Karoll                           [ARGUED]
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee United States of America

Samantha Stern                           [ARGUED]
Federal Public Defender Office
for the Western District of Pennsylvania
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
        Counsel for Appellant Harris

                      ________________

                 OPINION OF THE COURT
                    ________________


SMITH, Chief Judge.

       Kevin Harris and Anthony Jackson seek discretionary
reductions of their sentences pursuant to § 404 of the First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. The
District Courts denied relief, and on appeal, the primary issue
is § 404 eligibility. Due to several errors that we describe
below, we will vacate and remand in United States v. Harris
and reverse and remand in United States v. Jackson.

                               I
                               3
        In 2006, Kevin Harris pleaded guilty to possession with
the intent to distribute five grams or more of a mixture and
substance containing a detectable amount of cocaine base
(“crack”) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).
As part of his plea agreement, Harris stipulated to the quantity
he possessed—33.6 grams. Harris later moved in 2019 for a
reduction of his 210-month sentence pursuant to § 404. See
132 Stat. at 5222. The U.S. District Court for the Western
District of Pennsylvania assumed that Harris was eligible
under § 404 but denied relief, stating that “neither the statutory
penalties nor the advisory guidelines range would be affected
if [he] were sentenced today given the stipulated drug
quantity.” Harris App. 1–2.1 Harris timely appealed, claiming
that this inaccurate statement tainted the Court’s decision.

       Anthony Jackson was convicted in 2004 of violating the
same statute, § 841(a)(1), (b)(1)(B)(iii). His indictment
charged him with possession with the intent to distribute crack
“in excess of five (5) grams, that is approximately forty-eight
(48) grams.” Jackson App. 46–47. The jury convicted Jackson
of possessing five grams or more, without any specific finding
that he possessed forty-eight grams. In 2019, Jackson moved
under § 404 for a reduction of his 300-month sentence. See
132 Stat. at 5222. The U.S. District Court for the Eastern
District of Pennsylvania denied relief, determining that he was
ineligible. Jackson filed a timely appeal.

                               II


1
 Because we are reviewing two separate cases, the relevant
petitioner’s name precedes each brief or record citation.
                                4
       Several years after Harris and Jackson were convicted
and sentenced, Congress enacted the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372.2 Section two
amended their statute of conviction, § 841(b)(1)(B)(iii), by
increasing the quantity threshold from five to twenty-eight
grams of crack. 3 See 124 Stat. at 2372. The Fair Sentencing
Act, however, was not retroactive, see Dorsey, 567 U.S. at 264,
so neither Harris nor Jackson was able to benefit from its
passage.

       Enactment of the First Step Act in 2018 held the
potential to remedy Harris’s and Jackson’s ineligibility. It
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 . . . were in effect at the time the covered offense was

2
  The Fair Sentencing Act was designed to “restore fairness to
Federal cocaine sentencing.” See 124 Stat. at 2372. It aimed
to achieve this goal by reducing the sentencing disparities
between possessors of crack, who are predominately black or
Latino, and possessors of powder cocaine, who are more often
white. See Dorsey v. United States, 567 U.S. 260, 268–69
(2012); United States v. Dixon, 648 F.3d 195, 197 (3d Cir.
2011); Erik Eckholm, Congress Moves to Narrow Cocaine
Sentencing Disparities, N.Y. TIMES, July 29, 2010, at A16.
3
  Section two amended § 841(b)(1)(B)(iii) so that the penalties
previously triggered by possession of five grams or more of
crack now require possession of twenty-eight grams or more.
See 124 Stat. at 2372. Similarly, section two increased the
quantity threshold in § 841(b)(1)(A)(iii) from fifty to 280
grams of crack. See id.
                              5
committed.” § 404(b), 132 Stat. at 5222. Section 404 permits
the retroactive application of the penalty modification enacted
in the Fair Sentencing Act, but its effect applies only to
“covered offenses.” Id. So our initial inquiry concerns
eligibility—whether a defendant has committed a “covered
offense.” Id. Yet even if a defendant is eligible for relief
because he committed a “covered offense,” that in itself “does
not mean he is entitled to it.” United States v. Beamus, 943
F.3d 789, 792 (6th Cir. 2019). A district court may reduce a
sentence but is not required to do so. See § 404, 132 Stat. at
5222 (statutory text makes § 404 discretionary); United States
v. Jackson, 945 F.3d 315, 321 (5th Cir. 2019) (same).

                               III

      The District Courts had jurisdiction pursuant to 18
U.S.C. § 3231. This Court exercises jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       As to the proper interpretation of a statute, our review is
plenary. See United States v. Hodge, 948 F.3d 160, 162 (3d
Cir. 2020). If a defendant is eligible for a reduced sentence
under § 404, a district court’s denial of relief is reviewed for
an abuse of discretion. A district court abuses its discretion by
making an error of law or by relying on a clearly erroneous
factual conclusion. See United States v. Wise, 515 F.3d 207,
217 (3d Cir. 2008).

                               IV

     We begin, as we must, with the plain text of § 404. See
Hodge, 948 F.3d at 162; United States v. Introcaso, 506 F.3d

                                6
260, 264 (3d Cir. 2007). “[C]ourts must presume that a
legislature says in a statute what it means and means in a statute
what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253–54 (1992). If the statutory language is clear, then the
text of the statute is the end of the matter. See United States v.
Jones, 471 F.3d 478, 480 (3d Cir. 2006). But when a statute
includes language reasonably susceptible to different
interpretations, a court may attempt to discern Congress’s
intent by employing canons of statutory construction. See
Introcaso, 506 F.3d at 264–65; Dobrek v. Phelan, 419 F.3d
259, 264 (3d Cir. 2005).

       Section 404 reads,

       (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
       (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.

                                7
       (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 (Public Law 111–220;
       124 Stat. 2372) 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.

132 Stat. at 5222. As relevant to this dispute, 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. (emphasis added). 4

        The government contends that what matters for a
“covered offense” is the defendant’s actual conduct (i.e., the
drug quantity a defendant possessed), not limited to the charge
in the indictment or the statute of conviction.5 This conduct-

4
  The Fifth Circuit has referred to the italicized portion as the
“penalties clause.” See Jackson, 945 F.3d at 320. We adopt
this sensible convention.
5
  Under this conduct-based approach, § 404 eligibility turns on
whether a defendant possessed more than the Fair Sentencing
Act’s applicable threshold.       For instance, a defendant
convicted of possessing five grams or more of crack, but who
                               8
based interpretation is reasonable if (1) the penalties clause
modifies the word “violation” instead of “Federal criminal
statute” and (2) “violation” refers to the underlying drug
quantity, not the offense of conviction as defined by statute.
See Jackson, 945 F.3d at 320; United States v. Wirsing, 943
F.3d 175, 185–86 (4th Cir. 2019). Conversely, Harris and
Jackson argue that the term “covered offense” turns on a
defendant’s statute of conviction. 6 This approach results if the
penalties clause modifies “Federal criminal statute” rather than
“violation.”

                               V

       Although § 404(a) is reasonably susceptible to these
different interpretations, textual indicia lead us to concur with
other courts of appeals that have already resolved this issue:
Congress intended eligibility to turn on a defendant’s statute of

had thirty grams, would be ineligible for relief because the
amount possessed exceeds the Fair Sentencing Act’s quantity
threshold of twenty-eight grams. See § 2, 124 Stat. at 2372.
Drug quantity is key to the conduct-based approach: it does not
matter that the defendant was adjudged guilty beyond a
reasonable doubt of possessing only five grams or more.
6
  Based on the statute of conviction approach, the statutory
elements of the crime determine § 404 eligibility; a court need
not look to the amount of drugs a defendant possessed. As a
result, a pre-Fair Sentencing Act defendant convicted of
possession with the intent to distribute five grams or more of
crack would fall below the Fair Sentencing Act’s raised
threshold of twenty-eight grams, even if he possessed thirty,
fifty, or seventy grams.
                               9
conviction rather than his conduct. See United States v. Smith,
954 F.3d 446, 448–49 (1st Cir. 2020); United States v.
Johnson, 961 F.3d 181, 183 (2d Cir. 2020); United States v.
Wirsing, 943 F.3d 175, 185–86 (4th Cir. 2019); United States
v. Jackson, 945 F.3d 315, 321 (5th Cir. 2019), cert. denied, —
U.S. —, 2020 WL 1906710 (2020); United States v. Boulding,
960 F.3d 774, 775 (6th Cir. 2020); United States v. Shaw, 957
F.3d 734, 735 (7th Cir. 2020); United States v. McDonald, 944
F.3d 769, 772 (8th Cir. 2019); United States v. Jones, — F.3d
—, 2020 WL 3248113, at *7 (11th Cir. 2020).

       First, “[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.’” 7 Wirsing, 943
F.3d at 185 (quoting Lopez v. Gonzales, 549 U.S. 47, 56
(2006)). “Federal criminal statute” immediately precedes the
penalties clause. Thus, it is more natural to attach the penalties
clause to “Federal criminal statute” instead of “violation.” See
Jackson, 945 F.3d at 320; Wirsing, 943 F.3d at 185.

        Second, according to the “anti-surplusage” canon, “[i]t
is our duty to give effect, if possible, to every clause and word
of a statute. See Duncan v. Walker, 533 U.S. 167, 174 (2001)
(quoting United States v. Menasche, 348 U.S. 528, 538–39
(1955)).

       [B]ecause sections 2 and 3 of the Fair Sentencing
       Act affected only violations of “Federal criminal

7
 This principle of interpretation is sometimes referred to as the
“last antecedent rule” or the “nearest reasonable referent rule.”
                                10
      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” or]
      “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” or] “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.”

Johnson, 961 F.3d at 189. The adjective “statutory” before the
noun “penalties” would also become superfluous. See Rose,
379 F. Supp. 3d at 228. The anti-surplusage canon sensibly
instructs us to avoid this reading if we can.

       Third, the use of the past tense in “were modified”
confirms that the penalties clause was intended to modify
“Federal criminal statute.” See Jackson, 945 F.3d at 320. “The
                             11
Fair Sentencing Act [was not] retroactive when first passed, so
it [could not modify] any penalties imposed for violations
‘committed before August 3, 2010.’ Instead, the only ‘statutory
penalties’ that the Fair Sentencing Act could have modified
were the crack-cocaine penalties provided in the Controlled
Substances Act itself.” Id. (internal quotation marks and
citations omitted).

        Fourth, Congress’s intent becomes even more clear
when we consider which statutes’ penalty provisions “were
modified by sections 2 and 3 of the Fair Sentencing Act” and
the language and structure of those statutes. The Fair
Sentencing Act modified not only the statutory penalties for
§ 841 but also two other “Federal criminal statute[s],” each of
which makes a distinction between the act violating the statute
and the statutory penalties for that violation. In the case of
§ 841, subsection (a), entitled “Unlawful acts,” defines a
violation of this statute to include “possess[ion] with intent to
. . . distribute . . . a controlled substance,” while subsection
(b)(1), entitled “Penalties,” sets out the statutory penalties for
“any person who violates subsection (a).” 21 U.S.C. § 841(a),
(b)(1) (emphasis added). See also id. § 960(a) (describing the
“Unlawful act[ ]” of “import[ing] or export[ing]” a controlled
substance in subsection (a) and the “Penalties” in subsection
(b)); id. § 844(a) (describing separately the “Unlawful act[ ]”
of simple possession of a controlled substance and the
“penalties” for “[a]ny person who violates this subsection”).

       Fifth, even if the legislative intent was for the penalties
clause to modify “violation,” “a violation of a Federal criminal
statute” most likely refers to the offense of conviction as
defined by statute. See Torres v. Lynch, 136 S. Ct. 1619, 1624
                               12
(2016) (“The substantive elements primarily define[ ] the
behavior that the statute calls a violation of federal law.”)
(alteration in original) (internal quotation marks and citation
omitted).

       And sixth, the government’s interpretation of § 404(a)
is contrary to the clear weight of persuasive authority: no other
court of appeals has adopted a quantity-based approach to
§ 404 eligibility. See Smith, 954 F.3d at 449 (adopting statute
of conviction approach); Johnson, 961 F.3d at 183 (same);
Wirsing, 943 F.3d at 185–86 (same); Jackson, 945 F.3d at 321
(same); Boulding, 960 F.3d at 775 (same); Shaw, 957 F.3d at
735 (same); McDonald, 944 F.3d at 772 (same); Jones, — F.3d
—, 2020 WL 3248113, at *7 (same); see also Wagner v.
Pennwest Farm Credit, ACA, 109 F.3d 909, 912 (3d Cir. 1997)
(requiring a compelling basis to effect a circuit split).

                               VI

      The government offers various counterarguments, none
of which we consider persuasive.

                               A

       One argument is that by interpreting § 404 to focus on
a defendant’s statute of conviction, certain pre-Fair Sentencing
Act defendants will receive a windfall. A pre-Fair Sentencing
Act defendant convicted of possession with the intent to
distribute five grams or more of crack, but who possessed thirty
grams, for example, could use the statute of conviction
approach to fall below the Fair Sentencing Act’s elevated
threshold of twenty-eight grams. Such a defendant would be

                               13
eligible for a discretionary reduction of sentence under § 404.
In contrast, a post-Fair Sentencing Act defendant convicted of
possession with the intent to distribute twenty-eight grams or
more of crack, who possessed thirty grams, would not be
eligible for a reduction of sentence. The government believes
that this outcome is inconsistent with the purpose of the First
Step Act: to treat like offenders 8 similarly by reducing the
disparities between those sentenced pre- and post-Fair
Sentencing Act. 9



8
  The government wants pre- and post-Fair Sentencing Act
defendants who possessed the same drug quantity to be treated
alike. But post-Fair Sentencing Act defendants have already
benefited from changes to 21 U.S.C. § 841 and the U.S.
Sentencing Guidelines. The contexts facing pre- and post-Fair
Sentencing Act defendants are simply not analogous.
9
  See The First Step Act of 2018 (S.3649) – as introduced, S.
Comm. on the Judiciary, 115th Cong. 2 (2018) (describing a
bill with the same text as the version of § 404 ultimately
enacted that “allows 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 “bring[s]
sentences imposed prior to 2010 in line with sentences imposed
after the Fair Sentencing Act was passed”); 164 CONG. REC.
S7021-22 (daily ed. Nov. 15, 2018) (statement of Sen. Durbin)
(depicting the same bill as an opportunity “to give a chance to
thousands of people who are still serving sentences for
nonviolent offenses involving crack cocaine under the old 100-
to-1 rul[e] to petition individually” for a reduction of sentence).
                                14
        Yet this concern over a possible windfall ignores the
discretionary nature of § 404. While a defendant may be
eligible for a reduction of sentence, district courts are under no
obligation to provide relief. See § 404(b), (c), 132 Stat. at 5222.
We are confident that district court judges will exercise their
sound discretion in a way that avoids precipitating unfair
disparities. Indeed, we expect that a district court, in exercising
its discretion, will consider the actual quantity of drugs a
defendant possessed.

       We are also not persuaded that the statute of conviction
approach runs counter to Congress’s intent. It seems
incongruent with the historical context of the First Step Act for
Congress to have intended § 404 to apply only to the select pre-
Fair Sentencing Act defendants whose quantities fell between
the old and new threshold amounts—from five to twenty-eight
grams for § 841(b)(1)(B)(iii) and fifty to 280 grams for
§ 841(b)(1)(A)(iii). Congress passed “the First Step Act at a
time when some, but not all, pre-Fair Sentencing Act inmates
had [already] received relief by reference to their offense
conduct through application of the post-Fair Sentencing Act”
amendments to the U.S. Sentencing Guidelines. Wirsing, 943
F.3d at 186; see also U.S. SENTENCING GUIDELINES MANUAL,
2011 Supp. to App. C, Amendments 750, 759 (U.S.
SENTENCING COMM’N 2011). Since the First Step Act would
have a minimal impact on inmates who had previously
benefited via the Guidelines, Congress’s intent must have been
to afford relief “to [other] pre-Fair Sentencing Act offenders,
including those who were heretofore ineligible.” Wirsing, 943
F.3d at 186. This suggests that Congress wanted the First Step
Act to have a broad effect. Because a conduct-based
interpretation of § 404 would sharply limit eligibility, the
                                15
statute of conviction approach appears more in line with
Congress’s purpose. 10

       Moreover, a conduct-based interpretation of § 404
presents its own policy concerns. If § 404 eligibility is based
on drug quantity, a court would have to speculate as to how a
charge, plea, and sentencing would have looked had the Fair
Sentencing Act been in effect. See United States v. Pierre, 372
F. Supp. 3d 17, 22 (D.R.I. 2019). Such an analysis is
problematic because it cannot account for the discretionary
authority of either a prosecutor or a court. Plea negotiations
and colloquies are conducted against the backdrop of the
statutory minimum and range. So it is questionable, for
example, whether a well-counseled defendant caught with 28.5
grams of crack would have reached a plea deal of twenty-eight
grams or more, thereby triggering the higher mandatory
minimum by a mere 0.5 grams. The realities of plea bargaining
make it likely—indeed probable—that the parties would have
stipulated to a lower quantity.

       We do not think that Congress meant to adopt a
quantity-based approach to § 404 eligibility. Beyond a few
specific limitations found within the First Step Act, 11 we see
“no indication that Congress intended a complicated and

10
   Of course, if Congress intended that § 404 apply only to a
select few, it can always enact legislation in furtherance of that
end.
11
   See, e.g., § 404(c), 132 Stat. at 5222 (“No court shall
entertain a motion made under this section . . . if a previous
motion made under this section to reduce the sentence was . . .
denied after a complete review.”).
                               16
eligibility-limiting determination at the ‘covered offense’ stage
of the analysis.” Wirsing, 943 F.3d at 186 (citing § 404(a), 132
Stat. at 5222). This purposivist argument simply cannot
support the weight the government attempts to give it.

                               B

       Other counterarguments are also unpersuasive. For
instance, the government asserts that the penalties clause
modifies “violation” because the Fair Sentencing Act did not
alter any statutory penalties: it only amended the quantity
thresholds. 12 Yet Congress explicitly defined those threshold
changes as alterations to the statutory penalties: “the statutory
penalties for which were modified by section 2 or 3 of the Fair
Sentencing Act of 2010 . . . .” § 404(a), 132 Stat. at 5222
(emphasis added); see also Shaw, 957 F.3d at 739 (section two
“did not modify the penalties on an individual basis. Instead,
it broadly modified penalties for entire categories of offenses
that include fixed aggravating elements, such as the weight of
the drug.”). By enacting the Fair Sentencing Act, Congress
altered the statutory penalties in § 841(b)(1). Consequently,



12
   The government denies that the change in quantity, from
“five grams or more” to “twenty-eight grams or more,” reflects
any change in the statutory penalties applicable to Harris and
Jackson. After all, the statute’s mandatory minimum and
maximum penalties remained the same: five years and forty
years. The increased threshold quantity—from five to twenty-
eight grams—merely reflects the point at which the minimum
and maximum penalties apply.
                               17
we accord little weight to the fact that the changes solely
impacted the quantity thresholds.

       We also discount the government’s redundancy
argument. 13 Two courts of appeals have already concluded
that the recurrence of “statute” and “statutory” is not
superfluous. The Fourth Circuit determined that “[t]he 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.” Wirsing, 943 F.3d at 186. The Fifth Circuit
agreed, concluding that the reiteration made it “doubly clear
that Congress intended to refer only to the statute under which
the defendant was convicted.” Jackson, 945 F.3d at 320. We
find those courts’ line of reasoning—distinguishing between
statutory and Guidelines penalties—persuasive.

       Lastly, the government maintains that a conduct-based
interpretation of § 404 is more fitting because of Congress’s
use of the term “violation” rather than “conviction.”
“Violation” can refer to conduct, particularly where there are
civil consequences for unlawful actions. See, e.g., Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 488–90 (1985)
(mentioning civil penalties for RICO violations absent a
criminal conviction). The First Step Act, however, applies
only to those who have been convicted. Within this context,


13
   The government avers that this redundancy disappears only
if the whole phrase—“a violation of a Federal criminal
statute”—is modified. But this position does not help the
government. See supra Part V.
                                 18
the “violation” versus “conviction” distinction loses most of its
significance.

        To summarize, § 404 eligibility turns on a defendant’s
statute of conviction, not on his possession of a certain quantity
of drugs. The last antecedent rule and other textual indicia of
congressional intent support this conclusion, and the
government’s various counterarguments are unavailing.

                              VII

       Although Harris and Jackson each possessed more than
twenty-eight grams of crack, Harris pleaded guilty to and
Jackson was convicted of possession of five grams or more
under § 841(a)(1), (b)(1)(B)(iii). We determine if a defendant
is § 404 eligible by looking to his statute of conviction. Here,
five grams or more is less than the current threshold of twenty-
eight grams. See § 2, 124 Stat. 2372 (modifying the statutory
penalties in § 841(b)(1)(B)(iii)). Thus, Harris and Jackson can
seek discretionary reductions of their sentences.

        Unlike the ruling in Jackson, the District Court in
Harris assumed § 404 eligibility. But the Court declined to
exercise its discretion to reduce Harris’s sentence. The Judge
stated,

       this Court declines to exercise its discretion . . .
       [because] neither the statutory penalties nor the
       advisory guidelines range would be affected if
       Defendant were sentenced today given the
       stipulated drug quantity and the additional
       information provided by the defense regarding

                               19
       his post-sentencing activities is not sufficient to
       persuade the Court that a sentence reduction is
       appropriate.

Harris App. 1–2 (emphasis added). Harris was sentenced as a
career offender, and as a result, the stipulated drug quantity
does not establish the advisory guidelines range; rather, it is the
post-Fair Sentencing Act statutory maximum that fixes the
offense level that would be ascribed to Harris today. See U.S.
SENTENCING GUIDELINES MANUAL § 4B1.1(b) (U.S.
SENTENCING COMM’N 2018). The Court’s reasoning was
deficient in this respect, possibly tainting its exercise of
discretion. Out of an abundance of caution, we will ask the
District Court to consider the reduction of sentence issue anew.

                              VIII

        Section 404(a) eligibility turns on a defendant’s statute
of conviction rather than his actual conduct, meaning both
Harris and Jackson are eligible for a reduction of sentence.
Since the District Court in Jackson erroneously denied
eligibility, we will reverse and remand for further proceedings.
The District Court in Harris assumed § 404 eligibility, but
because its decision to deny relief may have relied on faulty
reasoning, we will vacate and remand for that Court to exercise
its discretion in light of this opinion.




                                20
HARDIMAN, Circuit Judge, dissenting.

       The Majority concludes that Kevin Harris and Anthony
Jackson are eligible for relief under § 404 of the First Step Act
because they committed “covered offenses” under the statute.
My disagreement with that premise requires this respectful
dissent.

                                I

        This appeal presents a difficult question of statutory
interpretation: Does the penalties clause modify “Federal
criminal statute” as Appellants Harris and Jackson argue, or
does it modify “violation” as the Government suggests? As my
colleagues rightly note, § 404(a) is susceptible to different
interpretations. The weight of authority strongly favors the
Majority since the Courts of Appeals for the First, Second,
Fourth, Fifth, Sixth, Seventh, and Eighth Circuits have all
adopted its position. See, e.g., United States v. Smith, 954 F.3d
446, 448–49 (1st Cir. 2020); United States v. Johnson, 961
F.3d 181, 183 (2d Cir. 2020); United States v. Wirsing, 943
F.3d 175, 185–86 (4th Cir. 2019); United States v. Jackson,
945 F.3d 315, 321 (5th Cir. 2019), cert. denied, — U.S. —,
2020 WL 1906710 (2020); United States v. Boulding, 960 F.3d
774, 781 (6th Cir. 2020); United States v. Shaw, 957 F.3d 734,
735 (7th Cir. 2020); United States v. McDonald, 944 F.3d 769,




                               1
772 (8th Cir. 2019). 1 Yet several district courts have held that
the Government has the better of the argument. See, e.g.,
United States v. Blocker, 378 F. Supp. 3d 1125 (N.D. Fla.
2019); United States v. Willis, 417 F. Supp. 3d 569 (E.D. Pa.
2019). In my view, the district court opinions are more
persuasive than those of our sister circuits.

                               II

       The Fair Sentencing Act of 2010 increased the drug
weights of crack cocaine required to trigger certain mandatory
statutory penalties. In particular, “[t]he Act increased the drug
amounts triggering mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year
minimum and from 50 grams to 280 grams in respect to the 10-
year minimum (while leaving powder at 500 grams and 5,000
grams respectively).” Dorsey v. United States, 567 U.S. 260,
269 (2012). But Congress did not make this change retroactive,
so offenders responsible for 5 to 28 grams or 50 to 280 grams
of crack before the Fair Sentencing Act faced harsher penalties


       1
           I note, however, that the government conceded
eligibility in Wirsing and the court only briefly explained its
decision to adopt the statute of conviction theory. 943 F.3d at
181–82, 185–86. Likewise, the defendant’s offense in
McDonald involved 57 grams of crack, making him eligible
for a reduced sentence under either theory. 944 F.3d at 771–
72. So the government did not argue that the defendant did not
commit a “covered offense.” Id. at 772. And in Smith, the First
Circuit acknowledged the holdings in Wirsing, McDonald, and
Jackson and “assume[d] that this case law is correct” because
the government provided “no hint of an argument . . . that [it]
should hold otherwise.” 954 F.3d at 448–49.




                               2
than offenders who possessed the same amount of crack after
its enactment.

       Congress addressed this disparity by passing the First
Step Act of 2018. As the Majority explains, § 404 of the First
Step Act gives offenders who committed a “covered offense”
the chance to seek a reduced sentence.

       Central to the dispute in these appeals is whether district
courts must consider an offender’s statute of conviction or his
actual conduct when determining whether he committed a
“covered offense.” The Majority concludes the statute of
conviction controls. But the most natural reading of § 404 is
that an offender’s actual conduct dictates eligibility.

                               III

                                A

        “A court’s primary purpose in statutory interpretation is
to discern legislative intent.” Morgan v. Gay, 466 F.3d 276,
277 (3d Cir. 2006) (citation omitted); see United States v.
Knox, 32 F.3d 733, 744 (3d Cir. 1994). We “presume that
Congress expressed its legislative intent through the ordinary
meaning of the words it chose to use.” Knox, 32 F.3d at 744
(citations omitted). “Thus, it is axiomatic that when the
statutory language is clear, the words must be interpreted in
accordance with their ordinary meaning.” Id.; see United States
v. Geiser, 527 F.3d 288, 294–95 (3d Cir. 2008) (using legal and
general dictionaries to discern the ordinary meaning of words).




                                3
The text of the First Step Act suggests an offender’s actual drug
quantity determines eligibility.

       First, a “violation” is defined as “the act of violating,”
Merriam-Webster’s Collegiate Dictionary (11th ed. 2005), or
“[t]he act of breaking or dishonoring the law,” Black’s Law
Dictionary (11th ed. 2019) (emphasis added). And “act” in this
context refers to the conduct underlying an offender’s arrest
and conviction, not the words of the indictment or statute.
Congress could have defined “covered offense” to refer to the
statute of conviction. Instead, Congress defined “covered
offense” as a “violation,” which is an “act.” See Sedima
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 489 (1985)
(“violation” does not imply a criminal conviction and “refers
only to a failure to adhere to legal requirements”). By defining
“covered offense” as a “violation,” Congress intended courts
to consider whether the Fair Sentencing Act changed the
penalties for the offender’s actual conduct—here, Harris and
Jackson’s possession with the intent to distribute more than 28
grams of crack.

        Second, the Majority says Congress’s use of “violation”
reveals little because the First Step Act applies only to those
previously convicted. Maj. Op. 19. But Congress’s use of “as
if” and “committed” in § 404(b) also suggests courts must look
to an offender’s actual conduct to determine eligibility. To
“commit” is “to carry into action deliberately,” Merriam-
Webster’s Collegiate Dictionary (11th ed. 2005), or “[t]o
perpetrate (a crime),” Black’s Law Dictionary (11th ed. 2019).
And “perpetrate” means “to bring about or carry out,”
Merriam-Webster’s Collegiate Dictionary (11th ed. 2005), or
“[t]o commit or carry out (an act, esp. a crime).” Black’s Law
Dictionary (11th ed. 2019). Harris and Jackson “committed”
their crimes when they possessed with the intent to distribute




                               4
more than 28 grams of crack. So if a district court is to consider
imposing a reduced sentence as if the Fair Sentencing Act was
in effect at that time, it must consider the offender’s conduct to
determine which subsection of 21 U.S.C. § 841 the
Government would have charged.

       Take Harris’s case as an example. A court considering
a reduced sentence as if the Fair Sentencing Act was in effect
when he committed his offense must engage in a simple three-
step analysis. First, it would consider the amount of crack
cocaine attributable to him—33.6 grams. Second, it would
determine the relevant threshold amount—28 grams or more.
And third, it would consider the statutory penalty associated
with that threshold amount—5 to 40 years’ imprisonment. That
statutory penalty range is the same as for Harris’s 2007
conviction. So he is not eligible for a reduction under § 404.
To consider only the charged conduct in Harris’s case—“five
grams or more”—would conflict with the plain meaning of the
statutory text and ignore the reality of Harris’s offense.

       The Majority contends that considering actual conduct
requires the “problematic” speculation of how the Government
would have prosecuted a violation post-Fair Sentencing Act.
Maj. Op. 16. That may be true in some cases, and any lack of
uncertainty in that regard should entitle the petitioner to a fresh
review by the trial judge. But in many other cases—like the
two before us here—the district courts won’t have much
speculating to do. Here, Harris admitted to possessing 33.6
grams and the uncontroverted record showed that Jackson
possessed 48 grams. Because Harris and Jackson both
possessed more than 28 grams but less than 280 grams, they
were chargeable with “28 grams or more.”




                                5
       The Supreme Court’s decision in Dorsey v. United
States, 567 U.S. 260 (2012) also suggests we should consider
an offender’s actual conduct. There, the Court held that the Fair
Sentencing Act’s “new, more lenient mandatory minimum
provisions do apply to [] pre-Act offenders” convicted, but not
yet sentenced, when the Act took effect. Id. at 264. In so
concluding, the Court considered the offender’s actual
conduct, saying:

       With this background in mind, we turn to the
       relevant facts of the cases before us. Corey Hill,
       one of the petitioners, unlawfully sold 53 grams
       of crack in March 2007, before the Fair
       Sentencing Act became law. . . . Under the 1986
       Drug Act, an offender who sold 53 grams of
       crack was subject to a 10-year mandatory
       minimum. 21 U.S.C. § 841(b)(1)(A)(iii) (2006
       ed.). Hill was not sentenced, however, until
       December 2010, after the Fair Sentencing Act
       became law and after the new Guidelines
       amendments had become effective. . . . Under
       the Fair Sentencing Act, an offender who sold 53
       grams of crack was subject to a 5-year, not a 10-
       year, minimum. § 841(b)(1)(B)(iii) (2006 ed.,
       Supp. IV).

Id. at 270 (emphasis added). Significantly, the Court did not
say “an offender convicted of selling fifty grams or more was
subject to a 5-year, not a 10-year, minimum.” Rather, the Court
used the offender’s actual conduct when discussing whether
the penalty for that conduct had changed. We should do the
same here.




                               6
        Finally, the meaning of “statutory penalty” and the
evolution of the Fair Sentencing Act also support interpreting
“covered offense” to refer to an offender’s actual conduct. A
“statutory penalty” is (unsurprisingly) “[a] penalty imposed for
a statutory violation.” Black’s Law Dictionary (11th ed. 2019).
The Majority characterizes the Fair Sentencing Act’s quantity
threshold amendments as amendments to statutory penalties.
Maj. Op. 17–18. I cannot square that characterization with the
statutory text or a commonsense definition of “statutory
penalty.”

        Congress did not amend the penalties for crack cocaine
offenses in the Fair Sentencing Act; it retained the previous
mandatory penalty ranges while amending the threshold drug
amounts that trigger those penalties. It follows that “the
statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010” must modify “violation”
or “violation of a Federal criminal statute” because the Fair
Sentencing Act modified the quantities that trigger certain
penalties, not the penalties themselves. In other words, the Fair
Sentencing Act changed the penalties for certain “violations,”
or acts. It did not change the penalties for the “Federal criminal
statute”—they remained the same.

        Taken together, these textual cues support an
interpretation based on an offender’s actual conduct rather than
the statute of conviction.




                                7
                                B

        The Majority offers three principal reasons in support
of its interpretation, but I find each one wanting.

       First, the Majority relies on the “last antecedent rule” to
support its interpretation that “the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act of
2010” modifies only “Federal criminal statute.” Maj. Op. 10.
That rule instructs that modifiers usually attach to the closest
noun. See Lopez v. Gonzales, 549 U.S. 47, 56 (2006).
Generally, courts should not interpret statutes to “divorce a
noun from the modifier next to it without some extraordinary
reason.” Id.

        I have no quarrel with this rule in general, but I disagree
with its application here. The Majority concludes that “Federal
criminal statute” is the closest noun to the modifier. But it’s
more reasonable to read the modifier as applying to “violation
of a Federal criminal statute” because “that clause hangs
together as a unified whole, referring to a single thing.” Cyan,
Inc. v. Beaver Cty. Emp. Ret. Fund, 138 S. Ct. 1061, 1077
(2018). That’s why the Supreme Court declined to apply the
last antecedent rule in Cyan “when the modifier directly
follows a concise and ‘integrated’ clause.” Id. (citation
omitted).

       Here, “violation of a Federal criminal statute” is a
“concise and integrated clause.” In this statutory scheme, it
would be anomalous to separate “violation” from “Federal
criminal statute” in § 404(a) because penalties attach to
violations and the Fair Sentencing Act modified conduct
thresholds, not the actual penalties.




                                8
       Second, my colleagues emphasize Congress’s use of the
past tense (“were modified”) in the penalties clause. Maj. Op.
12. They conclude that the penalties clause cannot apply to
violations because the non-retroactive Fair Sentencing Act
could not have “modified” the penalty imposed for a
“violation” “committed before August 3, 2010.” Id. Although
this reading of the statute is plausible, the better reading
suggests that “were modified” refers to the statutory penalties
associated with specific violations that the Fair Sentencing Act
modified ten years ago.

       Finally, the Majority reasons that considering actual
drug quantities renders § 404’s reference to “statute” and
“statutory penalties” superfluous. Maj. Op. 11–12. But
Congress’s use of “statute” and “statutory penalties” makes
perfect sense if we read “violation of a Federal criminal
statute” as an integrated whole. Congress did not modify any
penalties, just the drug weights triggering them. So as long as
we interpret “statutory penalties for which” as referring to a
“violation of a Federal criminal statute,” there is no superfluity.

        For these reasons, I disagree with the Majority’s
conclusion that canons of interpretation suggest that § 404
eligibility turns on an offender’s statute of conviction instead
of his actual conduct.

                                C

       When interpreting a statute we also consider “the design
of the statute as a whole and its object and policy,” United
States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994), “and
avoid constructions that produce ‘odd’ or ‘absurd results’ or
that are ‘inconsistent with common sense.’ See Public Citizen
v. U.S. Dept. of Justice, 491 U.S. 440, 454 (1989) (internal




                                9
quotations omitted).” Disabled in Action of Pa. v. Se. Pa.
Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008).

        The Majority’s interpretation of § 404 not only
undermines the goals of the Fair Sentencing Act and the First
Step Act, it also opens the door to absurd results. Congress
enacted the Fair Sentencing Act to “restore fairness to Federal
cocaine sentencing” by reducing sentencing disparities
between crack and powder cocaine offenders. See 124 Stat. at
2372. And in passing the First Step Act, Congress meant to
extend the Fair Sentencing Act to crack offenders sentenced
before the Fair Sentencing Act. See S. Comm. on the Judiciary,
115th Cong., The First Step Act of 2018 (S.3649), at 2
(Nov. 15, 2018), https://www.judiciary.senate.gov/imo/media
/doc/S.%203649%20First%20Step%20Act%20Summary%20
-%20As%20Introduced.pdf (remarking § 404 would “bring
sentences imposed prior to 2010 in line with sentences imposed
after the Fair Sentencing Act was passed”). The interpretation
adopted by the Majority does the opposite.

        Instead of avoiding sentence disparities and bringing
pre-Fair Sentencing Act crack sentences in line with sentences
imposed thereafter, the Majority’s interpretation will invite
greater disparities and give some offenders a windfall. Take
these cases. Today’s decision makes Harris eligible for a
reduced sentence even though he admitted to possessing 33.6
grams of crack cocaine, simply because he was convicted and
sentenced before August 3, 2010. Jackson gets the same
opportunity even though police found him asleep at the wheel
in possession of 48 grams of crack. But a defendant convicted
and sentenced in 2011 for possessing 29 grams of crack—less
weight than both Harris and Jackson—would not be eligible
for a reduced sentence. Congress could not have intended such
disparate treatment.




                              10
       As that example reveals, the Majority’s interpretation
will not “bring sentences imposed prior to 2010 in line with
sentences imposed after the Fair Sentencing Act was passed.”
Instead, it empowers sentencing judges to treat those convicted
before 2010 more favorably than those convicted thereafter.
The Majority emphasizes that relief under § 404 is
discretionary. Maj. Op. 15. True enough, but the fact remains
that district judges around the country—some, not all—will
reduce sentences for pre-August 3, 2010 offenders, while
offenders who committed the same or lesser offenses
afterwards will have no such opportunity. In doing so, those
courts will accomplish the opposite of what Congress intended
in the First Step Act.

       The Supreme Court’s Dorsey opinion is instructive once
again. In holding that the Fair Sentencing Act’s new threshold
amounts applied to offenders not yet sentenced on August 3,
2010, the Court explained that

       applying the 1986 Drug Act’s old mandatory
       minimums to the post-August 3 sentencing of
       pre-August 3 offenders would create disparities
       of a kind that Congress enacted the Sentencing
       Reform Act and the Fair Sentencing Act to
       prevent. Two individuals with the same number
       of prior offenses who each engaged in the same
       criminal conduct involving the same amount of
       crack and were sentenced at the same time would
       receive radically different sentences.

567 U.S. at 276–77 (emphasis added). The problem identified
by the Court in Dorsey applies here too.




                              11
       The “actual conduct” approach serves the purpose of
aligning pre-2010 sentences with post-2010 sentences without
sweeping more broadly than Congress intended. Although that
approach means Harris and Jackson are ineligible for a
reduction because their sentences match post-2010 sentences
for the same drug quantities, thousands of other offenders
would be entitled to relief. 2 For example, all offenders who

      2
          Before the First Step Act’s enactment, the United
States Sentencing Commission estimated that the Act would
make 2,660 prisoners eligible for a sentence reduction. See
U.S. Sentencing Comm’n, Sentence and Prison Impact
Estimate Summary S. 756, The First Step Act of 2018 (Dec. 18,
2018), https://www.ussc.gov/sites/default/files/pdf/research-
and-publications/prison-and-sentencing-impact-
assessments/December_2018_Impact_Analysis.pdf; see also
U.S. Sentencing Comm’n, Sentence and Prison Impact
Estimate Summary S. 1917, The Sentencing Reform and
Corrections      Act    of    2017      (Aug.     3,    2018),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/prison-and-sentencing-impact-
assessments/August_2018_Impact_Analysis_for_CBO.pdf
(providing the same estimate under a different bill with
identical language).

       But under the “statute of conviction” theory, this
number will skyrocket. Every crack defendant sentenced
before the Fair Sentencing Act took effect will be eligible for
a reduction, at least in districts where indictments routinely
track the statute. The number of eligible defendants would
dwarf the Sentencing Commission’s estimate. See U.S. Dep’t
of Justice, Drug Offenders in Federal Prison: Estimates of
Characteristics Based on Linked Data (October 2015),




                              12
possessed 6 to 27 grams of crack in 2000 and were subject to a
5-year mandatory minimum are now eligible for a sentence
reduction because those weights do not trigger a mandatory
minimum under the Fair Sentencing Act.

       In sum, § 404 is far from clear. But when one considers
the statute’s text, context, and its history, the balance tips in
favor of evaluating actual conduct to determine eligibility for
a sentence reduction. Indeed, this is the only approach that
accomplishes Congress’s twin goals of offering a chance at a
reduced sentence for certain crack offenders who violated the
drug laws in ways ameliorated by the Fair Sentencing Act and
reducing sentencing disparities. Because the violations
committed by Harris and Jackson are not “covered offenses”
under the statute, I respectfully dissent.




https://www.bjs.gov/content/pub/pdf/dofp12.pdf (noting there
were 26,409 total crack cocaine offenders in federal prison in
2012).




                               13
