961 F.3d 181
2d Cir.2020Background
- Monae Davis pleaded guilty in 2009 to conspiracy to possess with intent to distribute "50 grams or more" of crack cocaine and admitted in a Rule 11(b)(3) allocution that his relevant conduct involved at least 1.5 kilograms of crack.
- Because of a prior drug-felony conviction, Davis was sentenced under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii) to 20 years (the statutory minimum at the time) plus supervised release.
- The Fair Sentencing Act of 2010 raised the crack-cocaine quantity thresholds (e.g., 50 g → 280 g), but its changes were not retroactive to pre-Act sentences.
- The First Step Act § 404 (2018) permits district courts to reduce sentences for a "covered offense," defined as a violation of a federal criminal statute whose statutory penalties were modified by sections 2 or 3 of the Fair Sentencing Act and committed before August 3, 2010.
- Davis moved under § 404; the government argued he was ineligible because his admitted conduct (1.5 kg) would have triggered the same penalties after the Fair Sentencing Act, while the district court held eligibility depends on the statute of conviction (not actual conduct) and reduced Davis's sentence to time served and eight years supervised release.
- The government appealed solely on the question whether Davis was sentenced for a "covered offense." The Second Circuit affirmed, holding a defendant's statutory offense, not his actual conduct, controls § 404 eligibility.
Issues
| Issue | Government's Argument | Davis's Argument | Held |
|---|---|---|---|
| Whether §404 "covered offense" eligibility turns on a defendant's actual conduct or the statute of conviction | Actual conduct controls; Davis's admission to 1.5 kg means penalties were not modified for him, so he is ineligible | Eligibility depends on whether the statute of conviction had its statutory penalties modified by the Fair Sentencing Act | Statute of conviction controls; Davis was sentenced under a statute whose penalties were modified and is eligible |
| Which phrase is antecedent of the limiting clause in §404(a) ("the statutory penalties for which were modified...") | The limiting clause modifies "a violation of a Federal criminal statute" (so "violation" -> look to conduct) | The limiting clause modifies "Federal criminal statute" (so look to the statute of conviction) | The court reads "Federal criminal statute" as the antecedent; the clause refers to statutes whose statutory penalties were modified |
Key Cases Cited
- Dorsey v. United States, 567 U.S. 260 (2012) (Fair Sentencing Act nonretroactivity issue and background on crack/powder disparity)
- Barnhart v. Thomas, 540 U.S. 20 (2003) (last antecedent rule for statutory modifiers)
- Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061 (2018) (limits of applying the last antecedent rule)
- Duncan v. Walker, 533 U.S. 167 (2001) (anti‑surplusage canon and giving effect to statutory language)
- United States v. Holloway, 956 F.3d 660 (2d Cir. 2020) (discussing §404 eligibility and that eligibility is antecedent question)
- United States v. Jackson, 945 F.3d 315 (5th Cir. 2019) (holding eligibility depends on statute, not conduct)
- United States v. McDonald, 944 F.3d 769 (8th Cir. 2019) (same)
- United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019) (same)
- United States v. Smith, 954 F.3d 446 (1st Cir. 2020) (same)
- United States v. Shaw, 957 F.3d 734 (7th Cir. 2020) (same)