United States v. Jamell Birt ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3820
_____________
UNITED STATES OF AMERICA
v.
JAMELL BIRT,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-02-cr-286-001
District Judge: Hon. Yvette Kane
_______________
Argued
April 14, 2020
Before: AMBRO, JORDAN, and SHWARTZ, Circuit
Judges.
(Opinion Filed: July 20, 2020)
_______________
Heidi R. Freese
Frederick W. Ulrich [ARGUED]
Office of Federal Public Defender
100 Chestnut Street – Ste. 306
Harrisburg, PA 17101
Counsel for Appellant
William A. Behe [ARGUED]
David J. Freed
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
We are asked to decide whether a statute whose text is
unchanged by a later act of Congress can nevertheless be said
to have been “modified” by that enactment. Although the
question might seem simple, getting to an answer is not, and
the analysis may have significant implications for many
federal prisoners.
Jamell Birt contends that he is one such prisoner. He
appeals the District Court’s denial of his request for a lower
sentence pursuant to the First Step Act (the “Act”). As he
2
sees it, his conviction for possession with intent to distribute
crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C),
qualifies as a “covered offense” under the Act and so he is
entitled to resentencing. We disagree. “Covered offenses,”
as the First Step Act defines that term, are offenses proscribed
by criminal statutes that have had their penalty provisions
modified by another statute, specifically the Fair Sentencing
Act. But the penalties for Birt’s statute of conviction have
not been modified, and, without such a modification, the First
Step Act has no applicability to Birt’s case. We will therefore
affirm the judgment of the District Court.
I. BACKGROUND
In 2001, Birt was arrested following a routine traffic
stop in Pennsylvania. He consented to a search of his car, and
a state trooper found 186.5 grams of crack cocaine in the
trunk.
Birt originally faced state charges and was released on
bail. But after violating the conditions of his release, he was
charged in federal court. Ultimately, the United States
Attorney for the Middle District of Pennsylvania filed a
superseding information charging him with one count of
possession with intent to distribute an unspecified amount of
crack cocaine in violation of 21 U.S.C. § 841(a)(1). Birt
eventually pled guilty to that charge, and his plea agreement
stated that “[t]he maximum penalty for [his] offense is
imprisonment for a period of 20 years [and] a fine of $1
million dollars,” as well as a period of supervised release and
various costs and collateral consequences. (App. at 18.)
Those penalties are set forth in 21 U.S.C. § 841(b)(1)(C).
The probation office then issued a Presentence Report noting
3
that, as stated in that statutory subsection, Birt’s maximum
sentence was 20 years. In due course, the District Court
imposed the maximum sentence, which we affirmed on
appeal.1
Years later, Birt filed a motion to reduce his sentence
pursuant to Amendment 750 to the United States Sentencing
Guidelines, an “amendment[] which lowered the base offense
levels applicable to crack cocaine offenses.” United States v.
Savani, 733 F.3d 56, 58 (3d Cir. 2013). The District Court
granted that motion in early 2012, and reduced Birt’s
sentence to 210 months. We also affirmed that order.
Another few years passed and Birt filed another
motion for resentencing, this time based on the First Step Act.
The government originally conceded that Birt was entitled to
relief but subsequently withdrew that concession and argued
that no resentencing was in order. The District Court agreed,
deciding that Birt was not convicted of a “covered offense”
within the meaning of the Act and, thus, that he was not
entitled to relief.
1
In a prior opinion, we summarized Birt’s sentencing,
noting that he “was a career offender with a criminal history
category of VI and an adjusted total offense level of 34,
yielding an advisory guidelines range of 262 to 327 months.
The District Court imposed the statutory maximum of 240
months.” United States v. Birt, 479 F. App’x 445, 446 (3d
Cir. 2012).
4
This timely appeal followed.
II. DISCUSSION2
The issue before us is one of statutory interpretation.
As noted earlier, Birt was convicted and sentenced under 21
U.S.C. § 841(a)(1) and (b)(1)(C) for possession with intent to
distribute an unspecified quantity of crack cocaine. We must
determine whether those two subsections, acting in concert,
qualify as a “covered offense” within the meaning of the First
Step Act.3
A. The Applicable Statutes
To answer that question we need to consider the
interaction of three statutes: the Fair Sentencing Act, Pub. L.
2
The District Court had jurisdiction pursuant to 18
U.S.C. §§ 3231 and 3582(c)(1). We have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “Our
review over a district court’s decision to grant or deny a
motion for sentence reduction is typically for abuse of
discretion. However, … we exercise plenary review [when]
we are presented with legal questions[.]” United States v.
Thompson, 825 F.3d 198, 203 (3d Cir. 2016) (citations and
internal quotation marks omitted). That is what we face now.
3
In determining whether a conviction constitutes a
“covered offense,” we focus on the statute of conviction, not
the specific actions of the offender. United States v. Harris,
No. 19-2517, 2020 WL3563995, --F.3d -- (3d Cir. 2020).
5
No. 111-220; the retroactivity provision of the First Step Act;
and the provisions of the Controlled Substances Act under
which Birt was convicted, namely 21 U.S.C. § 841(a)(1) and
(b)(1)(C).
The Fair Sentencing Act was passed to reduce the
disparities in sentencing between crack cocaine and powder
cocaine offenses. Pub. L. No. 111–220, § 2, 124 Stat. 2372,
2372 (2010). It reduced the crack/powder ratio from 100:1 to
approximately 18:1. United States v. Dixon, 648 F.3d 195,
197 (3d Cir. 2011). The amounts of crack cocaine needed to
trigger statutory minimum sentences were also changed, by
amending 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B). Prior to
the Fair Sentencing Act, section 841(b)(1)(A)(iii) imposed a
minimum sentence of 10 years and a maximum sentence of
life for an offense involving 50 grams or more of crack.
Section 841(b)(1)(B)(iii) imposed a minimum sentence of 5
years and a maximum sentence of 40 years for an offense
involving 5 grams or more of crack. The Fair Sentencing Act
modified the language of those provisions to replace “50”
with “280” and “5” with “28.” Pub. L. No. 111-220, § 2, 124
Stat. 2372 (2010). By contrast, the penalty provision for
offenses involving an unspecified quantity of drugs, 21
U.S.C. § 841(b)(1)(C), was unchanged.
The amendments to subsections (b)(1)(A) and
(b)(1)(B) of § 841 were not at first retroactive. Consequently,
those who were sentenced before the Fair Sentencing Act
went into effect had dramatically higher sentences than those
who were sentenced later for the same crimes. Congress
sought to rectify that disparity when it passed the First Step
Act. Section 404 of that statute allows a district court, when
considering a defense motion aimed at a sentence for a
6
“covered offense,” to “impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act of 2010 were in
effect at the time the covered offense was committed.” First
Step Act, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222
(2018). The term “covered offense” is defined as “a violation
of a Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act of
2010, that was committed before August 3, 2010.” First Step
Act, Pub. L. No. 115-391, § 404(a), 132 Stat. 5194, 5222.
The First Step Act thus made it possible for some prisoners to
seek reduced sentences, even if they had been sentenced prior
to the effective date of the Fair Sentencing Act.
B. The Meaning of “Covered Offense”
The text of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) –
the statutory provisions comprising Birt’s crime of conviction
– was, as just noted, untouched by the Fair Sentencing Act.
That text remains the same to the last letter. On its face, then,
it is not apparent how a conviction under those subsections
could qualify as “a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010[.]” First Step Act, Pub. L.
115-391, § 404(a), 132 Stat. 5194, 5222 (2018). Since
“modify” and “change” are close synonyms, something that is
completely unchanged has not, in ordinary parlance, been
“modified.” See Change, Merriam-Webster.com Thesaurus,
https://www.merriam-webster.com/thesaurus/change,
accessed 23 Jun. 2020 (listing “modify” as a synonym for
“change”).
Birt attacks that textual fact in two ways. First, he
argues that his statute of conviction is § 841(a)(1), not the
7
combination of subsections (a)(1) and (b)(1)(C). Viewed in
that light, he says, his statute of conviction was modified by
the Fair Sentencing Act, since some of the penalty provisions
associated with § 841(a)(1) were modified, even if subsection
(b)(1)(C) was not. Second, he argues that, assuming his
conviction is held to be one under a combination of
subsections (a)(1) and (b)(1)(C), the way in which (b)(1)(C)
is affected by changes to the other penalty provisions in § 841
means that those changes necessarily served to modify
(b)(1)(C) as well. We disagree on both points.
1. The relevant substantive provision is the
combination of § 841(a)(1) and
§ 841(b)(1)(C).
Birt’s statute of conviction is a tight combination of
subsections (a)(1) and (b)(1)(C) of § 841, not § 841(a)(1) in
isolation or § 841 as a whole. That conclusion becomes
apparent when we consider the structure of § 841 in
conjunction with relevant Supreme Court precedent.
Section 841 is framed as a general prohibition on
certain kinds of conduct, followed by a list of penalties
corresponding to the particular manner in which the
prohibition is violated. Subsection (a)(1), titled “[u]nlawful
acts,” prohibits the “manufacture, distribut[ion], or
dispens[ing], or possess[ion] with intent to manufacture,
distribute, or dispense, a controlled substance[.]” 21 U.S.C.
§ 841(a)(1). That provision was not changed by the Fair
Sentencing Act. Section 841(b), titled “[p]enalties[,]” lays
out, in turn, the consequences for violating § 841(a). Id.
§ 841(b). Those consequences vary based on the type of
controlled substance at issue and the quantity of the
8
controlled substance. The subsections dealing with crack
cocaine are (b)(1)(A)(iii), (b)(1)(B)(iii), and (b)(1)(C).4 As
previously stated, subsection (b)(1)(A)(iii) imposes a
mandatory minimum of 10 years’ imprisonment and a
maximum of life for an offense involving 280 grams or more
of crack. Again, it had been 50 grams, prior to the passage of
the Fair Sentencing Act. Subsection (b)(1)(B)(iii) imposes a
mandatory minimum of 5 years and a maximum of 40 years
for an offense involving 28 grams or more of crack, and,
before the Fair Sentencing Act, that trigger had been 5 grams.
Lastly, subsection (b)(1)(C) imposes a statutory maximum of
20 years, and no mandatory minimum, for an offense
involving an unspecified amount of crack, as it did before the
Fair Sentencing Act.
Birt asserts that this statutory structure means that “all
defendants convicted under Section[] 841(a)(1) … are eligible
for a reduced sentence.” (Opening Br. at 16-17). He argues
that because § 841(a) lays out the proscribed conduct and
then § 841(b) lays out the penalties for that conduct, the
necessary conclusion is that the offense of conviction is §
841(a). And because the Fair Sentencing Act undoubtedly
modified the penalties section (that is to say, it modified parts
of § 841(b)), a violation of § 841(a) counts as “a violation of
a Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act of
4
Unlike subsections (b)(1)(A)(iii) and (b)(1)(B)(iii) of
§ 841, which are both directed expressly to offenses involving
cocaine base, subsection (b)(1)(C) deals with controlled
substance offenses more generally, including those involving
cocaine base.
9
2010[.]” First Step Act, Pub. L. No. 115-391, § 404(a), 132
Stat. 5194, 5222. Birt thus believes he committed a “covered
offense” within the meaning of the First Step Act and is
entitled to resentencing.
That reasoning is not implausible. Indeed, it is
plausible enough that it was adopted by one of our sister
circuits. The United States Court of Appeals for the First
Circuit concluded that the “relevant statute … 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.” United States v. Smith, 954 F.3d 446, 449
(1st Cir. 2020). Our conclusion, however, is different,
because of the Supreme Court’s ruling in Alleyne v. United
States, 570 U.S. 99 (2013).
Building on the principle laid out in Apprendi v. New
Jersey, 530 U.S. 466 (2000), Alleyne held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a
reasonable doubt.” 570 U.S. at 103. So, under Alleyne, any
fact that legally requires an increased penalty is an element of
the substantive crime itself. And if it is necessary to prove
different facts for there to be different penalties, then there are
different crimes, not merely the same crime with different
penalties.
Section 841(a) doesn’t contain any reference to
penalties. Those are set forth in § 841(b), and the facts
necessary to impose them must be proved to a jury beyond a
reasonable doubt. Thus, depending on the subsection of
841(b) implicated by a defendant’s charging document,
10
different facts must be presented to the jury in order for the
government to meet its burden of proof, as required by
Alleyne. If, for example, the indictment or information
charging the defendant specifies the amount of crack that is
involved in the offense, then reference must be made to the
subsections of § 841(b)(1) to determine the pertinent drug
quantity thresholds and what the government must prove to
come within those thresholds. It follows that “21 U.S.C.
§ 841(b)(1)(A), § 841(b)(1)(B), and § 841(b)(1)(C) are each
distinct crimes.” United States v. Williams, 402 F. Supp. 3d
442, 449 n.7 (N.D. Ill. 2019) (emphasis omitted); cf. United
States v. Shaw, 957 F.3d 734, 739-40 (7th Cir. 2020) (holding
that defendants could seek relief under the First Step Act
because they were convicted under § 841(b)(1)(A) and
841(b)(1)(B) and “the penalty for each of those crimes was
modified by the Fair Sentencing Act”) (emphasis added). We
are therefore left to conclude that Birt’s crime of conviction is
defined by a combination of § 841(a)(1) and § 841(b)(1)(C).
That conclusion is not altered by the fact that Birt’s
charging document lists only the violation of § 841(a)(1) as
his crime. That is conceptually incomplete for purposes of
both prosecution responsibilities and the First Step Act. As
just discussed, § 841(a) does not contain the drug thresholds
that are integral to defining what are, after Alleyne, distinct
crimes. It is thus, in our view, not true that “§ 841(a)…
describes all the conduct necessary to violate § 841[,]” as the
First Circuit has asserted. Smith, 954 F.3d at 449. Depending
on the charge, an additional part of the statute must be
accounted for and proof offered for there to be conviction of a
crime. Because the charging instrument in this case did not
specify an amount of crack cocaine, the only subsection that
can fill that role is § 841(b)(1)(C). Thus, although the
11
superseding information did not explicitly reference
§ 841(b)(1)(C), the necessary inference is that Birt was
prosecuted for a crime defined in part by that subsection.
That conclusion is bolstered by the PSR’s explicit reliance on
(b)(1)(C) to establish the maximum sentence to which Birt
was exposed.5
The First Circuit rejected that kind of reasoning. It
dismissed Alleyne as being merely concerned with criminal
procedure, and it said that there was “no reason to believe that
Congress would have thought the holding in Alleyne” had any
bearing on the questions raised by the First Step Act. Smith,
954 F.3d at 450. But Alleyne is no narrow procedural ruling.
It is a landmark constitutional decision that redefined what
constitutes an element of a crime and thus what constitutes
the crime itself. There is no reason not to believe that
Congress knew such a significant ruling would affect the
interpretation of legislation addressing penalties for drug
dealing. See Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990) (“We assume that Congress is aware of existing law
when it passes legislation.”). The point of the First Step Act
was to ameliorate certain penalties, including mandatory
minimums, attached to drug dealing. See First Step Act, Pub.
L. 115-391, § 401, 132 Stat. 5194, 5220 (stating, in a related
section, that part of the effect of the First Step Act is to
5
Birt was, of course, convicted long before the
decision in Alleyne was handed down, so prosecutors had no
reason at the time to consider the necessity of listing the
pertinent penalty subsection of § 841 to complete the
description of the crime.
12
“reduce and restrict enhanced sentencing for prior drug
felonies”).
Moreover, the reading that Birt and our sister circuit
give the First Step Act would have serious and unintended
consequences. Every defendant convicted under § 841(a)
could seek resentencing regardless of whether the subsection
under which he was convicted was changed in any way. In
fact, a defendant convicted of a crime entirely unrelated to
crack cocaine would be entitled to resentencing. Section
841(b) provides penalties associated with other controlled
substances besides cocaine base. So, if we treat § 841(a) as
the crime of conviction, defendants convicted of, say, heroin
offenses, would be entitled to resentencing because the
penalties in § 841(b) have been modified. That outcome
would be odd, to say the least. The Fair Sentencing Act was
meant to “restore fairness to Federal cocaine sentencing.”
Pub. L. 111–220, § 2, 124 Stat. 2372, 2372 (2010). Allowing
defendants convicted of crimes unrelated to cocaine to be
resentenced does not further the stated purpose. It is difficult
to believe that is what Congress had in mind.6
6
The First Circuit acknowledged this point, observing
that a “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.’” Smith, 954 F.3d at 450 n.5.
The court declined to reach the issue, though, because it was
not squarely presented. Id. Yet the clear implication of
Smith’s holding is that non-crack offenses would indeed
qualify as covered offenses under the First Step Act.
13
2. Subsection 841(b)(1)(C) was not
modified.
The only question that remains is whether
§ 841(b)(1)(C) was modified by the Fair Sentencing Act and
thus, in conjunction with § 841(a)(1), qualifies as a “covered
offense” under the First Step Act.7 The answer is it was not
modified and so does not qualify.
Although subsection (C) nowhere mentions a drug-
quantity trigger, Birt argues that “Congress necessarily
modified the weight range in Section 841(b)(1)(C)” by virtue
of the modifications made to the other two relevant
subsections of 841(b)(1).8 (Opening Br. at 14.) He finds
support for his position in the statutory text that says
subparagraph (C) will apply “except as provided in
subparagraphs (A) [and] (B)….” 21 U.S.C. § 841(b)(1)(C).
In his view, that means that subparagraph (C) incorporated by
7
It is undisputed that § 841(a)(1) was not modified in
any way by the Fair Sentencing Act.
8
The same provision in (C) also mentions
subparagraph (D). As already discussed, subparagraph (A) of
§ 841(b)(1) contains in further subparagraph (iii) the
triggering amount of crack for a 10-year minimum mandatory
sentence, and, similarly, subparagraph (B) contains in further
subparagraph (iii) the triggering amount for a five-year
minimum mandatory sentence. Subparagraph (D) establishes
maximum sentences for certain marijuana crimes and is not
relevant here.
14
reference the penalty triggers in (A) and (B), and thus that all
three were modified even though only (A) and (B) were
actually changed. So Birt frames the issue as follows:
§ 841(b)(1)(C) applies in two circumstances – first, when the
specified amount of crack is below the amount that would
trigger the mandatory minimum in 841(b)(1)(B)(iii); or
second, when the amount of crack cocaine is unspecified.
Viewed in that light, § 841(b)(1)(C) was modified by the Fair
Sentencing Act because the first circumstance arises based on
the modified trigger in (b)(1)(B)(iii), i.e., the increase from 5
grams to 28 grams.9
That argument too has some surface appeal. The
problem remains, however, that Birt cannot point to any
circumstance under which someone convicted under (b)(1)(C)
would have faced different penalties before and after the
passage of the Fair Sentencing Act. As was said recently by a
well-respected judge on the court where Birt was convicted,
while the Fair Sentencing Act’s increase in the amount of
crack required to trigger a mandatory minimum penalty under
§ 841(a)(1)(B) “did, in turn, increase the maximum amount of
[crack] subject to penalty under … § 841(b)(1)(C), … that did
9
The Fourth Circuit recently adopted this line of
reasoning, concluding that “by increasing the drug weights to
which the penalties in Subsections 841(b)(1)(A)(iii) and
(B)(iii) applied, Congress also increased the crack cocaine
weights to which Subsection 841(b)(1)(C) applied and
thereby modified the statutory penalty” for that subsection.
United States v. Woodson, 2020 WL 3443925 at *3 (4th Cir.
2020). As discussed herein, we respectfully disagree.
15
not affect anyone originally sentenced under…
§ 841(b)(1)(C). Put simply, any defendant … sentenced
under …§ 841(b)(1)(C) prior to the enactment of the Fair
Sentencing Act would presently be subject to the exact same
statutory penalty of up to 20 years.” United States v.
Roberson, No. 99CR80-1, 2019 WL 6699912, at *3 (M.D.
Pa. Dec. 9, 2019) (Munley, J.), appeal docketed, No. 19-3972
(3d Cir. Dec. 26, 2019). In short, the text and effect of
§ 841(b)(1)(C) are the same now as before.10 Try as he
10
That is true both for those who were charged with
crimes involving an unspecified amount of crack and those, if
any, charged with a specified amount below the trigger found
in subsection 841(b)(1)(B)(iii). As to the former, “[b]oth
before and after the passage of the Fair Sentencing Act of
2010, a criminal defendant convicted of
violating § 841(b)(1)(C) with respect to any unspecified
quantity of a Schedule I or II controlled substance would be
subject under the provision to a statutory range of 0 to 20
years of imprisonment.” United States v. Hunter, No.
3:05CR54 (JBA), 2019 WL 1220311, at *2 (D. Conn.
Mar. 15, 2019). As to the latter, it is a practical certainty that
those defendants would face no negative consequences. If the
amount charged was less than 5 grams, then the Fair
Sentencing Act changed nothing because § 841(b)(1)(C) was
always the only applicable subsection. If the amount was
more than 5 grams, those defendants would at least in theory
have been subjected already to the earlier mandatory
minimum sentences (i.e., those in effect before the enactment
of the Fair Sentencing Act) found in (b)(1)(A)(iii) or
(b)(1)(B)(iii) and so have an argument for eligibility for relief
under the First Step Act.
16
might, Birt cannot change that, and, accordingly, convictions
under that subsection are not “covered offenses,” as defined
by the First Step Act.
The Supreme Court has given something of an
indirect endorsement of this view. In explaining the effect of
the Fair Sentencing Act, the Court has observed, as we have
here, that it “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[.]” Dorsey v.
United States, 567 U.S. 260, 269 (2012). The Court then
cited § 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii) but made no
reference to § 841(b)(1)(C). That characterization of the
effects of the Fair Sentencing Act can be seen as recognizing
that § 841(b)(1)(C), which imposes no mandatory minimum,
was not modified.
It is unsurprising, then, that many courts around the
country have concluded that § 841(b)(1)(C) was not
“modified” by the Fair Sentencing Act, within the meaning of
the First Step Act.11 We likewise hold that a conviction under
11
See, e.g., United States v. Foley, 798 F. App'x. 534,
536 (11th Cir. 2020) (unpublished) (holding that “[s]ections
2 and 3 of the Fair Sentencing Act modified 21 U.S.C.
§§ 841(b)(1)(A)(iii), 841(b)(1)(B)(iii), 844(a), 960(b)(1)(C),
and 960(b)(2)(C)—but, importantly here, not
§ 841(b)(1)(C)”); United States v. Brown, 785 F. App’x 189,
190 (4th Cir. 2019) (per curiam) (“Because the Fair
Sentencing Act did not modify the statutory penalties for
17
§ 841(a)(1) and § 841(b)(1)(C) is not a “covered offense”
within the meaning of the First Step Act. Birt is therefore
ineligible for the relief he seeks.
III. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s denial of Birt’s motion for resentencing.
[§ 841(b)(1)(C)], [the defendant’s] offense is not a covered
offense and the district court correctly denied [the] motion to
reduce his sentence pursuant to § 404 of the First Step Act.”);
United States v. Duggan, 771 F. App’x 261, 261 (4th Cir.
2019) (per curiam) (“The offense for which Duggan was
convicted and sentenced—possession with intent to distribute
a quantity of cocaine base, in violation of 21 U.S.C.
§ 841(b)(1)(C)—was not modified by section 2 or 3 of the
2010 FSA. The district court thus lacked jurisdiction to
reduce Duggan’s sentence under the 2018 [First Step Act].”
(citing 18 U.S.C. § 3582(c)(1)(B))); United States v.
Wiseman, 932 F.3d 411, 417 (6th Cir. 2019) (“Because
Wiseman was convicted under 21 U.S.C. § 841(b)(1)(C),
not § 841(b)(1)(A) or (B), the First Step Act[] . . . would not
impact him, even if he had been sentenced after the First Step
Act’s effective date.”); United States v. Martinez, 777 F.
App’x 946, 947 (10th Cir. 2019) (“The Fair Sentencing Act
had no effect on § 841(b)(1)(C) and, thus, [the] crime of
conviction is not a ‘covered offense’ under the Act.”);
Roberson, 2019 WL 6699912 at *3 (finding that
§ 841(b)(1)(C) is not a “covered offense” under the First Step
Act); United States v. Washington, No. 1:07-CR-0401, 2019
WL 4273862, at *2 (M.D. Pa. Sept. 10, 2019) (same).
18