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 

	
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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). 
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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] . . . 
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(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). 
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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.
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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." 
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(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.
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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 
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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.
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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.
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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. 
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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) 
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("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.). 
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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 

 7 The 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.
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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. 
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III. 

For the foregoing reasons, we reverse the district 

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

consistent with this opinion.