United States Court of Appeals

For the Eighth Circuit 

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No. 19-2685

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United States of America

 Plaintiff - Appellee

v.

Antwoyn Terrell Spencer

 Defendant - Appellant

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No. 19-2691

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United States of America

 Plaintiff - Appellee

v.

Derrick Jerome Spencer

 Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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-2- 

Submitted: February 17, 2021

Case Re-Submitted: March 5, 2021

Filed: May 27, 2021 

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Before COLLOTON, BENTON, and KELLY, Circuit Judges. 

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BENTON, Circuit Judge. 

Brothers Antwoyn T. and Derrick J. Spencer moved pro se to reduce their 

sentences under the First Step Act of 2018. See Pub. L. No. 115-391, § 404, 132 

Stat. 5194, 5222. The district court denied the motions, finding both of them

ineligible. United States v. Spencer, 2019 WL 3369794, at *2 (D. Minn. July 26, 

2019); United States v. Spencer, 2019 WL 3369792, at *2 (D. Minn. July 26, 2019). 

Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands. 

I. 

In September 2007, the Spencers were convicted of a conspiracy to distribute

both crack and powder cocaine. See 21 U.S.C. § 846. The jury found each brother 

guilty of conspiring to distribute at least 5 kilograms of powder and at least 50 grams 

of crack. Their convictions then triggered penalties under § 841(b)(1)(A)(ii) (for 

powder cocaine) and (b)(1)(A)(iii) (for crack cocaine, or “cocaine base”). See 21 

U.S.C. § 841 (b)(1)(A)(iii) (repealed Aug. 3, 2010). Though their conspiracy 

involved two controlled substances triggering different penalties, “participation in a 

single drug-trafficking conspiracy constitutes a single offense.” See United States 

v. Taylor, 982 F.3d 1295, 1300 (11th Cir. 2020), citing Braverman v. United States, 

317 U.S. 49, 54 (1942). Antwoyn received 324 months. United States v. Spencer, 

592 F.3d 866, 872, 882 (8th Cir. 2010) (affirming sentence). Derrick received 292 

months, but his sentence was later reduced to 262 months. Id.; Spencer, 2019 WL 

3369792, at *1 (noting that because Derrick had a prior drug conviction, he had a 

20-year mandatory minimum sentence on the conspiracy charge). 
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They moved to reduce their sentences under § 404 of the First Step Act. The 

district court ruled them ineligible and denied relief. They appeal. 

II. 

This court considers the motions for First Step Act relief in two steps. See 

United States v. McDonald, 944 F.3d 769, 772 (8th Cir. 2019). “First, the court 

must decide whether the defendant is eligible for relief under § 404. Second, if the 

defendant is eligible, the court must decide, in its discretion, whether to grant a 

reduction.” Id. This court “review[s] de novo the applicability of the First Step Act 

to a defendant’s case, including whether a defendant is eligible for a sentence 

reduction.” Id. at 771. 

The Fair Sentencing Act of 2010 reduced (future) sentencing disparities 

between crack-cocaine and powder-cocaine offenses. Id., citing Dorsey v. United 

States, 567 U.S. 260, 269 (2012); Fair Sentencing Act of 2010, Pub. L. No. 111-

220, 124 Stat. 2372. In 2018, the First Step Act made specific parts of the Fair 

Sentencing Act retroactive to offenses committed before August 3, 2010. 

McDonald, 944 F.3d at 771. Section 404(b) permits a district court to reduce the 

sentence for a “covered offense.” “[T]he term ‘covered offense’ means a violation 

of a Federal criminal statute, the statutory penalties for which were modified by 

section 2 or 3 of the Fair Sentencing Act.” § 404(a). 

The parties dispute the Spencers’ eligibility. The issue is whether a “covered 

offense” includes their multidrug conspiracy with the objects to distribute both crack 

and powder cocaine. See Taylor, 982 F.3d at 1300. The answer depends on whether 

the “statutory penalties” for that single “violation” include (1) the statutory penalties 

for both objects of the conspiracy or (2) the statutory penalties for only the object of 

the conspiracy that actually determines the minimum and maximum penalties for the 

violation. The government advocates the second approach, reasoning that the 
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Spencers are not eligible because the powder cocaine would trigger the same 

minimum and maximum penalties, regardless of the Fair Sentencing Act. 

Section 404(a) of the First Step Act says that covered offenses are those whose 

penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” (Emphasis 

added.) Before the Fair Sentencing Act, the Spencers’ crack-cocaine quantity—over 

50 grams—triggered a 10-year minimum sentence. See McDonald, 944 F.3d at 771; 

Taylor, 982 F.3d at 1301. It now triggers a 5-year minimum sentence. See 

§ 841(b)(1)(B)(iii); McDonald, 944 F.3d at 771. So the “statutory penalties for” one

object of the Spencers’ multidrug conspiracy offense “were modified by” § 2 of the 

Fair Sentencing Act. See Taylor, 982 F.3d at 1301. 

This is true even if the Spencers “ultimately would be subject to the same 

statutory sentencing range as a consequence of” the powder cocaine. See id. “[T]he 

‘statutory penalties for’ a drug-trafficking offense include all the penalties triggered 

by every drug-quantity element of the offense, not just the highest tier of penalties 

triggered by any one drug-quantity element.” Id. at 1300.1

 

1

This court requested briefing whether a live controversy exists in Antwoyn’s

case. Because Antwoyn was convicted of more than one count in a multicount 

indictment, his case involves a sentencing package. See United States v. Evans, 314 

F.3d 329, 332, 334 (8th Cir. 2002) (“Under the [Sentencing] Guidelines, a multicount sentence is a package.” (internal quotation marks omitted)) (“Once the total 

punishment is determined, Part 5G directs the court to sentence multiple counts of 

conviction as an interdependent package, and to use consecutive as well as 

concurrent sentencing to construct a combined sentence equal to the total 

punishment.”). As discussed, a modification of the crack-cocaine object could 

permit a sentence reduction on the powder-cocaine object. See First Step Act, 

§ 404(b) (permitting a court to “impose a reduced sentence” but not limiting this 

relief to defendants who were sentenced only for a covered offense). There is, thus,

a live controversy in Antwoyn’s case. See generally Spencer v. Kemna, 523 U.S. 1, 

7 (1998) (ongoing incarceration confers Article III standing). Cf. United States v. 

Mannie, 971 F.3d 1145, 1153-54 (10th Cir. 2020) (no standing where defendant’s 

concurrent sentences were nonreducible, unlike Antwoyn’s sentence that was

packaged). 
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The First Step Act does not require the Spencers to show that the Fair 

Sentencing Act reduced their penalties. See id. at 1301. See also United States v.

Winters, 986 F.3d 942, 948 (5th Cir. 2021) (“In the case of a multi-object offense, 

the argument that eligibility requires that there be a change in the statutory range 

resulting from considering all objects of the conspiracy is adding language to what 

Congress stated in simple terms.”). 

First, Congress used the term “modified”—not “reduced,” “lowered,” or 

“decreased.” § 404(a). This implements the Fair Sentencing Act, which did not 

reduce, lower, or decrease penalties for crack-cocaine offenses. See McDonald, 944 

F.3d at 771. It increased the minimum crack-cocaine quantity for the penalty ranges. 

Id. (“Section 2 of the Fair Sentencing Act increased the quantity of cocaine base 

required to trigger mandatory minimum sentences. It raised the threshold for the 5-

year minimum from 5 grams to 28 grams, and raised the threshold for the 10-year 

minimum from 50 grams to 280 grams.”), citing Dorsey, 567 U.S. at 269. 

“Modified” in § 404(a) requires only a change in the penalties for the crack-cocaine 

quantity. 

Second, a related subsection, § 404(c), states limitations on the First Step 

Act’s application. Congress did not limit it to single-drug conspiracies involving 

crack cocaine, or to defendants whose penalties would decrease after the Fair 

Sentencing Act.

“[T]he First Step Act casts a wide net at the eligibility stage.” Taylor, 982 

F.3d at 1300. The Spencers are eligible for resentencing under the First Step Act. 

See Winters, 986 F.3d at 949 (“Whether the interplay of statutory minima of the 

modified and other, unmodified statutes relevant to the conviction actually changes 

the sentencing range is relevant, but only at the later merits stage.”); United States 

v. Gravatt, 953 F.3d 258, 264 n.5 (4th Cir. 2020) (“[S]tatutory mandatory minimum 

terms remain in effect for certain drug offenses. Even if a defendant’s sentence 

involves a covered offense, the district court’s review of a defendant’s First Step Act 
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motion cannot avoid those statutory requirements.”). See generally Taylor, 982 F.3d 

at 1301; Winters, 986 F.3d at 950 (dual-object conspiracy to distribute both crack 

and powder cocaine is a covered offense)2

; Gravatt, 953 F.3d at 264 (same); United 

States v. Mitchell, 832 Fed. Appx. 387, 390-91 (6th Cir. 2020) (Stranch, J., 

concurring) (signaling support for Gravatt’s approach); United States v. Hudson, 

967 F.3d 605, 611 (7th Cir. 2020) (holding defendant convicted of crack offense and 

firearm offense eligible for First Step Act relief). But see United States v. Lott, 830 

Fed. Appx. 365, 366 (2d Cir. 2020) (triple-object conspiracy not covered). 

* * * * * * *

The judgments are reversed, and the cases remanded for further proceedings 

consistent with this opinion. 

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2

To the extent Winters and Gravatt discuss a dual-object conspiracy as two 

separate offenses, this court disagrees. See Winters, 986 F.3d at 949 (“The ‘statutory 

penalties’ have to be considered modified when any statutory penalty for one of the 

offenses included in a count of conviction has been changed.”); Gravatt, 953 F.3d at 

264 (“If Congress intended for the Act not to apply if a covered offense was 

combined with an offense that is not covered, it could have included that language.”). 

A dual-object conspiracy is a single offense. Taylor, 982 F.3d at 1300, citing 

Braverman, 317 U.S. at 54.