### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 19-2067, 19-2069, 19-2078 & 19-2117
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

T ERRANCE J. S HAW , F RED T. R OBINSON , R ASHANN G RIER , and R OMOND F OULKS , Defendants-Appellants

.

____________________ Appeals from the United States District Court for the Central District of Illinois. No. 07-CR-10004 — Joe B. McDade , Judge

. No. 10-CR-20031 — James E. Shadid , Judge

. Nos. 05-CR-10053 & 09-CR-40081 — Michael M. Mihm , Judge

.

____________________
A RGUED D ECEMBER 13, 2019

— D ECIDED A PRIL 28, 2020

____________________

Before M ANION , K ANNE , and B RENNAN , Circuit Judges

. K ANNE , Circuit Judge . In 2018, Congress passed the First Step Act to address the disparities between sentences for crack and powder cocaine. Among other things, the First Step Act allows certain criminal defendants to seek, and district2 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

courts to impose, sentence reductions if the defendant was previously convicted of a “covered o ff ense.” To determine whether a defendant is eligible for a reduced sentence under the First Step Act, a court needs to look only at a defendant’s statute of convic tion, not to the quantities of crack involved in the o ff ense. More speci fi cally, if a defendant was convicted of a crack-cocaine o ff ense that was later modifi ed by the Fair Sentencing Act, he or she is eligible to have a court consider whether to reduce the previously imposed term of imprisonment. Here, ea ch defendant’s statutory penalties for crack-cocaine o ff enses had been modi fi ed by the Fair Sentencing Act, so each is elig ible to have a court consider whether to reduce the defendant’s sentence under the First Step Act. Because each district court did not do so in each of their respective cases, we reve rse and remand all three respective district court orders denying the motions for a sentence reduction.

I. B ACKGROUND The First Step Act gives a court discretion to reduce the sentence of a defendant previously convicted of a “covered

o ff ense.” See Pub. L. No. 115-391, 132 Stat. 5194, § 404(a) (2018). A “covered o ff ense” is “a violation of a Federal criminal statute, the statutory penalties for which were modi fi ed by section 2 or 3 of the Fair Sentencing Act of 2010.” Id. § 404(a). The o ff ense must also have been “commi tt ed before August 3, 2010.” Id

.A judge considering a motion for a reduced sentence under the First Step Act is faced with two questions. First, may the court reduce the sentence? And second, should the court reduce the sentence? The fi rst question, which concerns aNos. 19-2067, 19-2069, 19-2078 & 19-2117 3

defendant’s eligibility for a sent ence reduction, is governed by sections 404(a) and 404(c) of th e First Step Act. If a defendant is eligible for a reduction, then a court “may” impose a reduced sentence. This appeal primarily concerns the question of eligibility. Because the operation of the First Step Act is contingent upon changes made to the Fair Sentencing Act of 2010, we begin with a bit of background about the Fair Sentencing Act. Drug-offense penalties under federal law depend in part on the weight and type of the drug at issue and in part on the defendant’s prior convictions. For crack offenses committedbefore August 2010, the statutory penalties relating to imprisonment were the following:

Section 841 Quantity No prior offense 1 prio r offense 2 prio r offenses (b)(1)(A) > 50 grams 10 years– life 20 years– life life

(b)(1)(B) > 5 grams 5-40 years 10 years– life 10 years– life (b)(1)(C) any 0–20 years 0–30 years 0–30 years
21 U.S.C. § 841 (2006 & Supp. IV). In 2010, Congress passed the Fair Sentencing Act. See Pub.L. No. 111-220, 124 Stat. 2372 (2010). Section 2 of that Act, referred to in the First Step Act, 1 changed the statutory penalties

1 The First Step Act also refers to section 3 of the Fair Sentencing Act,which eliminated the mandatory minimum prison term for simple possession of crack cocaine under 21 U.S.C. § 844(a). That section is not at issue in this case.4 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

for crack offenses by increasing the quantity of crack required for imprisonment:

Section 841 Quantity No prior offense 1 prio r offense 2 prio r offenses (b)(1)(A) > 280 grams 10 years– life 20 years– life life

(b)(1)(B) > 28 grams 5-40 years 10 years– life 10 years– life (b)(1)(C) any 0–20 years 0–30 years 0–30 years
As the two charts illustrate, the Fair Sentencing Actchanged the quantity that triggers certain penalties of imprisonment. Under § 841(b)(1)(A), the threshold quantity increased from 50 grams to 280 grams; and under § 841(b)(1)(B), the threshold quantity increase d from 5 grams to 28 grams. These changes reflected a reco gnition that the tremendous disparities in punishment of powder-cocaine and crack-cocaine offenses disparately impacted African Americans. See Dorsey v. United States , 567 U.S. 260, 268–69 (2012). But the Fair Sentencing Act’s changes to the sentencing scheme applied only to defendants who were sentenced after the law’s enactment on August 3, 2010, United States v. Fisher , 635 F.3d 336, 338 (7th Cir. 2011), rev’d sub nom. Dorsey , 567 U.S.at 282, leading us to comment that the Act might more accurately be known as “The Not Quite as Fair as it could be Sentencing Act of 2010.” Congress eventually addressed this deficiency when it passed the First Step Act of 2018. Section 404(b) of that Actmakes the Fair Sentencing Act retroactively applicable to defendants whose offenses were committed before August 3,Nos. 19-2067, 19-2069, 19-2078 & 19-2117 5

2010. Now, a district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covere d offense was committed.” First Step Act, § 404(b).

Defendants Terrance Shaw and Fred Robinson were convicted—in 2007 and 2010, respectively—of possessing crack cocaine with intent to distri bute. 21 U.S.C. § 841(a)(1), (b)(1)(B). Defendants Rashann Grier and Romond Foulkswere convicted—in 2003 and 2010, respectively—of conspiring to distribute crack cocaine. Id. §§ 841(b)(1)(A), 846. In 2019, each defendant moved for a sentence reduction under Section 404(b) of the newly passed First Step Act. Each district court denied the motion, concluding that the defendant was ineligible to seek relief under the Fi rst Step Act because his crackoffense is not a “covered offense” under the Act. As for Robinson, the court ruled in the alternative that, even if Robinsonwere eligible for a sentence reduction, the court would not exercise its discretion to reduce his sentence. The defendants and the government disagree about whether the defendants are eligible to have a court consider reducing their sentences under th e First Step Act. The crux of this disagreement is whether the defendants’ crack o ff enses are “covered o ff enses,” as de fi ned by the First Step Act.

The defendants contend that anyone sentenced for violating a federal criminal statute that was modi fi ed by the Fair Sentencing Act of 2010 is eligib le for a sentence reduction under the First Step Act. Under this straightforward theory, a court need only (1) examine th e statute under which a defendant was charged, and (2) determine whether the statutory penalties for that o ff ense were modi fi ed by the Fair Sentencing Act.6 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

The government o ff ers a contrasting interpretation that would have a court conduct a more fact-intensive analysis to determine eligibility for resentenci ng under the First Step Act. Under this interpretation, a court would look to the drug quantity described in a defendant’s presentence investigation report or a plea agreement’ s factual basis to determine whether the Fair Sentencing Act altered a defendant’s penalty range.The facts of these cases underscore the practical differences between these competing in terpretations. Under the defendants’ theory, they are eligible to have a court consider their motions. They were convic ted of crack offenses carryingstatutory penalties the Fair Sentencing Act modified. But under the government’s proposed framework, the defendants would be ineligible for senten ce reductions. That’s because the quantities of crack involved in each defendant’s offense exceeded the new quantity thresh olds set by the Fair Sentencing Act. Shaw and Robinson were each convicted of possession of crack with intent to distribute , and the penalties for this offense are established under 21 U. S.C. § 841(b)(1)(B). The Fair Sentencing Act changed the drug quantities that trigger mandatory-minimum prison terms under § 841(b)(1)(B) from 5 grams to 28 grams. Officers found 33.8 grams of crack in Shaw’s kitchen cabinet. Robinson possessed 32.7 grams of crack. Both quantities exceed the 28-gram threshold. Similarly, Grier and Foulks were convicted of conspiracy to distribute crack, the punishment for which is set out in 21 U.S.C. § 841(b)(1)(A). The tri gger amount for the mandatoryminimum penalties under § 841 (b)(1)(A) changed from 50 grams to 280 grams

. Grier conspired to distribute 2.91Nos. 19-2067, 19-2069, 19-2078 & 19-2117 7

kilograms of crack, which is wel l over the 280-gram threshold. Foulks conspired to distribute 8.4 kilograms of crack.

II. A NALYSIS
The district courts denied each defendant’s motion for a sentence reduction by concluding that the defendant in eachcase was ineligible under the First Step Act to have his sentence reduced. Because these decisions turn on a question of statutory interpretation, we review them de novo

. See United States v. Miller , 883 F.3d 998, 1003 (7th Cir. 2018). A. The Defendants Were Convicted of “Covered Offenses”

Our fi rst interpretive task is to determine the meaning of a “covered o ff ense.” First Step Act, § 404(a). We begin, as wemust, with the relevant text of the First Step Act, which defi nes a covered o ff ense as “a violation of a Federal criminal statute, the statutory penalties for which were modi fi ed by section 2 or 3 of the Fair Sentencing Act of 2010.” Id. The question is: does “the statutory penalties for which were modi fi ed by section 2 or 3” refer to “Federal crim inal statute” or to “aviolation of a federal criminal statute”? We join our sister circuits in holding that the phrase modi fi es “federal criminal statute.” See United States v. Smith , 954 F.3d 446 (1st Cir. 2020); United States v. Jackson , 945 F.3d 315, 320 (5th Cir. 2019); United States v. McDonald , 944 F.3d 769, 772 (8th Cir. 2019); United States v. Beamus , 943 F.3d 789, 791–92 (6th Cir. 2019); United States v. Wirsing , 943 F.3d 175, 185–86 (4th Cir. 2019). This sensible interpretation is supported by both a time-honored canon of statutory construction and the statutory context. First, under the nearest-reas onable-referent canon, we presume a modi fi er refers to the nearest reasonable referent. “Modi fi ers should come, if possible, next to the words they8 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

modify.” William Strunk Jr. & E. B. White, The Elements of Style 30 (50th Anniversary ed. 2009). And, as is the case here, “[w]hen the syntax involves something other than a parallelseries of nouns or verbs, a prepositive or postpositive modifi er normally applies only to the nearest reasonable referent.”Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 152–53 (2012). Let’s apply that canon to the statute, which reads:

“covered o ff ense” means a violation of a Federal criminal statute, the statutory penalties for which were modi fi ed by section 2 or 3 of the Fair Sentencing Act of 2010 ... that was commi tt ed before August 3, 2010. First Step Act, § 404(a). Mindful that modi fi ers generally attach to the closest noun, we conclude the phrase “the statutory penalties for which were modi fi ed by Section 2” relates to “federal criminal statute,” not “violation,” because the former is closer to the modi fi er, making “federal criminal statute” the nearest reasonable referent. Under this interpretation, whether an o ff ense is covered simply depends on the statute under which a defendant was convicted. See also Mellouli v. Lynch , 135 S. Ct. 1980, 1990 (2015) (applying nearest-reasonable-referent canon to statute that reads “[a]ny alien who ... has been convicted of a violation of ... any law or regulation ... relating to a contro lled substance” is deportable and concluding “relating to” modi fi ed “law or regulation,” not “violation”).Arguing for the opposing interpretation—that the modifying phrase applies to “a vi olation”—the government reasons that the First Step Act’s language “commi tt ed before August 3, 2010,” § 404(a), points towards a fact-speci fi c inquiryNos. 19-2067, 19-2069, 19-2078 & 19-2117 9

into the particular circumstances of the o ff ense. See Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009). But the language indicating when an o ff ense must have been commi tt ed by does nottransform the eligibility inquiry into a complicated, fact-intensive determination. As we explained above, that languagemakes the changes in the Fair Sentencing Act retroactively applicable to those whose o ff enses were commi tt ed before August 3, 2010. Our interpretation is further strengthened by the statutory
context. See Lockhart v. United States , 136 S. Ct. 958, 963 (2016) (interpretation under statutory canon of construction can be overcome by other indicia of meaning within the statutory scheme). The relevant provision of the Fair Sentencing Act of 2010, section 2, did not modify the penalties on an individual basis. Instead, it broadly modi fi ed penalties for entire categories of o ff enses that include fi xed aggravating elements, such as the weight of the drug. Accordingly, we hold that the statute of conviction alone determines eligibility for First Step Act relief. The defendants’

o ff enses are “covered o ff enses” under the plain language of the First Step Act because the Fair Sentencing Act modi fi ed the penalties for crack o ff enses as a whole, not for individual violations.With this conclusion, each defendant is eligible to seek relief under the First Step Act because each commi tt ed a crackcocaine o ff ense before August 3, 2010, and the penalty for each of those crimes was modi fi ed by the Fair Sentencing Act. Because Shaw, Grier, and Foulks are eligible to seek relief under the First Step Act, the district courts’ orders in those cases should be reversed.10 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

Robinson is also eligible to seek relief under the First Step Act, but his case requires further analysis.
B. The District Court Did Not Provide a Su ffi cient Explanation for Its Alternative Holding as to Robinson While the district court found Robinson ineligible to seek relief under the First Step Act, the court also ruled that, even if Robinson were eligible, it would not reduce his sentence. Robinson challenges that alternate conclusion. In arriving at its alternate conc lusion, the district court reasoned that Robinson’s “amende d guidelines range would become 188–235 months instead of 262–327 months.” But Robinson was initially sentenced to 180 months, which “would be a downward departure even from the amended guidelines range.” So, the court “decline[d] to reduce” Robinson’s sentence, “even if he were eligible.” The court gave no indication that it had considered the argum ents presented in Robinson’s motion or accounted for 18 U.S.C. § 3553(a) factors.The government contends that the district court’s alternative ruling makes its eligibility error harmless. To show harmless error, the government must sh ow that the district court’s eligibility analysis did not a ff ect the district court’s decision not to reduce Robinson’s sentence. Cf. United States v. Abbas ,560 F.3d 660, 667 (7th Cir. 2009). We must be sure that an alternate ruling is “‘not just a conclusory comment tossed in for good measure,’ but rather re fl ected a ‘detailed explanation of the basis for the parallel result.’” United States v. Foster , 701 F.3d 1142, 1158 (7th Cir. 2012) (quoting United States v. Hill , 645 F.3d 900, 912 (7th Cir. 2011)). Given the complexities of se ntencing, the adequacy of a court’s reasons for imposing a particular sentence depends onNos. 19-2067, 19-2069, 19-2078 & 19-2117 11

“the circumstances of the particular case.” Chavez-Meza v. United States , 138 S. Ct. 1959, 1965 (2018) (explaining the extent of a district court’s expl anation for a sentence imposed varies with the circumstances). At the very least, we must beassured that a court weighing the appropriateness of a sentence “relied upon the record” and “considered the parties’ arguments.” Id.Robinson presented two arguments in support of his assertion that his sentence should be reduced to 129 months’ imprisonment. His fi rst argument addressed his pre-sentence conduct; his second addressed his post-sentence conduct.First, he argued that the original sentencing court’s reasons for departing downward fr om the guidelines needed to be revisited as reasons for reduci ng his sentence in light of the First Step Act. When Robinson was fi rst sentenced in 2010 by a di ff erent sentencing judge, Judge McCuskey, his guidelines range was 262–327 months. But Judge McCuskey departed from the guidelines and imposed a sentence of 180 months. Judge McCuskey believed Robinson’s career-o ff ender enhancement overrepresented the seriousness of his criminal history. Robinson also provided substantial assistance to the government; so much so, that the government previously recommended to Judge McCuskey a sentence 10% below the guidelines range. Because Robins on’s initial sentence was imposed by a di ff erent sentencing judge, Robinson urged thenew court to take note of the reasons for his previous, belowguidelines sentence. Notably, the government represented to the district court that if the First Step Act applied to Robinson’s o ff ense, it would honor its previous recommendation for a 10% reduction. Accordingly, the government requested12 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

a below-guidelines sentence of 170 months if the First Step Act applied. Second, Robinson also provided compelling information about his conduct in prison af ter sentencing and argued that this conduct warranted a sentence reduction. He reasoned that he had taken many educational courses; he had receivedconsistently exemplary recommendations from his work supervisor in the prison-industr ies program, who noted that “he takes on extra duties, helps other areas, has a high level of personal conduct, and has grea t work ethic”; and he incurred only one disciplinary infraction —a minor one—over the nine years he had been incarcerated. Nothing in the First Step Act prevents the district court from taking Robinson’s arguments into consideration. See United States v. Allen , 19-3606, 2020 WL 1861973, at *2–3 (6th Cir. Apr. 14, 2020) (district court may consider evidence of a defendant’s post-sentencing rehabilitation when deciding whether to impose a reduced sentence under the First Step Act); accord United States v. Williams , 943 F.3d 841, 844 (8th Cir. 2019), and United States v. Jackson , 945 F.3d 315, 322 n.7 (5th Cir. 2019); see also United States v. Jackson , 952 F.3d 492, 499 (4th Cir. 2020) (noting the Sentenci ng Commission’s policy statements that are normally binding on a court in a sentence reduction under 18 U.S.C. § 3582(c)(2) are not binding on a courtconsidering a First Step Act motion). For example, post-sentencing conduct may be relevant to § 3553(a) factors a court may wish to consider when determining whether to “impose a reduced sentence.” First Step Act, § 404(b); see, e.g. , Pepper v. United States , 562 U.S. 476, 504 (2011). Th at is because conduct after sentencing is “plainly re levant to ‘the history and characteristics of the defendant’”; “p ertinent to ‘the need for theNos. 19-2067, 19-2069, 19-2078 & 19-2117 13

sentence imposed’”; and may “critically inform a sentencingjudge’s overarching duty under § 3553(a) to ‘impose a sentence su ffi cient, but not greater than necessary,’ to comply with the sentencing purposes set forth in § 3553(a)(2).” Pepper , 562 U.S. at 491 (quoting 18 U.S.C. § 3553(a)). Importantly, nothing in the First Step Act precludes a court from utilizing § 3553(a)’s familiar framework when assessing a defendant’s arguments; and doing so makes good

sense. See Allen , 2020 WL 1861973, at *3. 2 Familiarity fosters manageability, and courts are well versed in using § 3553 as an analytical tool for making discretionary decisions. Similarly, nothing in the First St ep Act precludes a court from looking at § 3553(a) factors anew. Id. Because of lengthy statutory penalties a tt ached to crack o ff enses, a judge presiding over a request for a sentence reduction under the Act may not be the same judge who impose d a defendant’s original sentence. This could hamper a judg e’s consideration of a defendant’s arguments, because the new judge would be heavily reliant on a previous explanation and record that was “not created with the current statutory framework in mind.” Id. ; accord United States v. Smith , 954 F.3d 446, 451 (1st Cir. 2020). Counsel may have pressed di ff erent arguments based on a di ff erent statutory framework; a court may have credited those arguments di ff erently, as the statutory minimum and maximum often anchor a court’s ch oice of a suitable sentence. Smith , 954 F.3d at 451. What is more, today’s Guidelines may

2 We leave for another day whether a court is required to take § 3553(a) factors into consideration. The issue was not squarely presented in this case, and our court would bene fit from more thorough briefing on it.14 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

re fl ect updated views about the se riousness of a defendant’s

o ff ense or criminal history. So, a defendant may, as Robinson did, present evidence of his post-sentencing conduct in support of a reduced sentence. And a court may look to § 3553( a)’s familiar framework when assessing whether to impose a reduced sentence.The First Step Act is a novel statute; and Robinson presented commensurately inventive arguments. Chavez-Meza , 138 S. Ct. at 1965 (“explanation may be necessary depending, perhaps, upon the legal argumen ts raised”) (internal punctuation omi tt ed). Despite the originality and potential of Robinson’s arguments, the district co urt acknowledged neither inits summary holding that it would not reduce Robinson’s sentence even if he were eligible . Nor does the order otherwise indicate that the court considered the arguments Robinson presented. It did not, for ex ample, acknowledge the government’s noteworthy recommendation that it would continue to endorse a sentence 10% below the new guidelines range (188– 235 months), which would result in a sentence of 170 months instead of 180 months. And because the district court did not hold a hearing on the motion, we lack a corresponding transcript that might further supplem ent the court’s explanation.

That silence leaves us withou t assurance that the district
court considered Robinson’s arguments, even if it didn’t ultimately fi nd them persuasive. Cf. Hill , 645 F.3d at 912–13, and United States v. Martin , 916 F.3d 389, 398 (4th Cir. 2019). As a result, the district court did not provide a su ffi cient explanation for its alternate hold ing. We must be satis fi ed that the court considered Robinson’s arguments. On the limited record before us, we cannot be sure that the district court did so. And we cannot con fi dently say that, had the district courtNos. 19-2067, 19-2069, 19-2078 & 19-2117 15

taken Robinson’s arguments in to account, the court wouldhave decided as it did: denying Robinson’s motion for a reduced sentence. Cf. United States v. Currie , 739 F.3d 960, 966 (7th Cir. 2014). When, as here, we feel that a court’s explanation is “inadequate,” we may “send the case back to the district court for a more complete explanation.” Chavez-Meza , 138 S. Ct. at 1965. We opt to exercise that course of action today with regard to Robinson.

We address one fi nal argument. Robinson contends that the court misunderstood the scope of its discretion under the First Step Act by mistakenly believing it could not sentence Robinson to a below-guidelines sentence. He says the court’s rationale—that Robinson’s sentence is below the guidelines range, so no further adjustment is necessary or possible—is more akin to an analysis under 18 U.S.C. § 3582(c)(2) than tothe individual review envisaged by the First Step Act. In support, Robinson points to other cases pending before us, in which the same district court made remarks similar to those in Robinson’s case. See, e.g. , United States v. David Vorties , No. 19-2476; United States v. Thaddeus Speed , No. 19-2708. In light of statements made in all three cases, Robinson expresses concern that the court’s proposed distinction between “resentencing” and “sentence reduction” not only re fl ects a misapprehension about the extent of its discretion under the First Step Act, but also impr operly likens a motion brought under the First Step Act to one brought under 18 U.S.C. § 3582(c)(2). See Wirsing , 943 F.3d at 185 (holding the “the distinct language of the First Step Act compels the interpretation that motions for relief under th at statute are appropriatelybrought under § 3582(c)(1)(B)” and surmising “there is no reason to suppose that motions brought pursuant to16 Nos. 19-2067, 19-2069, 19-2078 & 19-2117

§ 3582(c)(1)(B) are subject to th e restrictions particular to § 3582(c)(2), which are ground ed in the text of the la tt er statute”). Robinson’s concern abou t the court’s distinction between a “resentencing” and “sentence reduction” may be justi fi ed, and we agree with the Fourth Circuit that the First Step Act does not include the limitat ions particular to § 3582(c)(2). But because our decision rests on other grounds, we have no occasion to speculate about the court’s understanding of its discretion. Our decision also expresses no view on how the district court should rule on remand. We say nothing further aboutthe extent to which a court must address the various arguments a defendant presents, beca use here, the district court said nothing of the arguments we’ve mentioned. It is for the district court, in its discretio n, to undertake a “complete review” of Robinson’s motion and to determine whether he is entitled to relief. First Step Act, § 404(c).

III. C ONCLUSIONFor the reasons set forth above, we REVERSE all four district court orders denying each defendant’s respective motion for a sentence reduction, and R EMAND to each district courtthe respective cases for proceedings consistent with this opinion.