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)

_______________
2

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
3

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
4

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).
5

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).
6

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 
7

“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
8

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 
9

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.
10

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,
11

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
12

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.
13

“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.
14

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 drugquantity 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.
15

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.
16

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.
17

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 
18

§ 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).