United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. GOTTSCHALL, UNITED STATES DISTRICT JUDGE
Cross is serving an 18-year sentence after pleading guilty to
a count of conspiracy to possess 50 grams of crack cocaine
with intent to distribute it. See 21 U.S.C.
§§ 841(a)(1), 846 (2002 Supp.). The indictment
alleged the minimum amount of crack cocaine then needed to
trigger the 10-year mandatory minimum, 50 grams. See
Id. §§ 841(b)(1)(A)(iii), (b)(iii); Indictment
1, ECF No. 64. Four years after Cross was sentenced, Congress
increased the amount of crack that triggers a 10-year minimum
from 50 to 280 grams when it enacted the Fair Sentencing Act
of 2010 ("Fair Sentencing Act"), Pub. L. 111-220,
124 Stat. 2372 (Aug. 3, 2010). Dorsey v. United
States, 567 U.S. 260, 269 (2012). But the Fair
Sentencing Act's changes to drug amounts triggering
mandatory minimum sentences were not retroactive for
defendants, like Cross, sentenced before the First Step
Act's effective date of August 3, 2010. United States
v. Foster, 706 F.3d 887, 888 (7th Cir. 2013).
moves for a sentence reduction under Section 404 of the First
Step Act of 2018 ("First Step Act"), Pub L. No.
115-391, 132 Stat. 5194 (Dec. 21, 2018). Broadly speaking,
the First Step Act made the Fair Sentencing Act's
reductions of mandatory minimums for certain crack-related
offenses retroactive. The government contends that Cross is
ineligible for a sentence reduction because he admitted in
his plea agreement, and the court found at sentencing, that
his offense involved more than 1.5 kilograms of
crack. See Plea Agreement, ECF No. 171.
For the following reasons, the court grants Cross'
3852 of Title 18 of the United States Code specifies the
limited circumstances in which the court may modify a
sentence. The operative provision here,  §
3582(c)(1)(B), permits a sentence modification "to the
extent otherwise expressly permitted by statute." The
statute here is § 404(b) of the First Step Act, which
reads "[a] court that imposed a sentence for a covered
offense may, on motion of the defendant, . . . 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." 132 Stat. 5194 (internal
citation omitted). The previous subsection defines the term
"covered offense" under § 404. The phrase
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 of 2010[, ] that was committed
before August 3, 2010," the date the Fair Sentencing Act
took effect. Id. § 404(a).
government emphasizes the words "violation" and
"committed" in the definition of covered offense.
Those words, the government says, show that Congress wanted
courts to consider "actual conduct" involved in the
offense rather than the conduct charged in the indictment to
determine whether a defendant is eligible for a sentence
reduction. Gov't Resp. 5, ECF No. 440. In practical
terms, the government wants the court to pierce the amount of
drugs charged in the indictment and look to the entire record
to determine the drug quantity under § 404. Here, the
1.5 kilograms Cross admitted in his plea agreement (and found
at sentencing) would dictate Cross' eligibility under the
government's approach. See Presentence
Investigation Report ("PSR") 4-5; Sentencing Tr.
11- 12, ECF No. 433 (adopting the PSR's findings).
Because the amount of crack found at Cross' sentencing
exceeds the 280 grams needed to trigger a 10-year mandatory
minimum after the Fair Sentencing Act, the government submits
that Cross is ineligible for a sentence reduction.
court of appeals has ruled on how to determine eligibility
under § 404 of the First Step Act. As far as this
court's research can determine, every judge in this
district who has ruled on the issue has rejected the
government's position. United States v. Wright,
2019 WL 3231383, at *3 (N.D. 111. July 18, 2019) (Castillo,
J.); United States v. Johnson, 2019 WL 2590951, at
*3 (N.D. 111. June 24, 2019) (Leinenweber, J.); United
States v. Booker, 2019 WL 2544247, at *2 (N.D. 111. June
20, 2019) (Lefkow, J.). Some district courts have reached the
contrary conclusion, but "the weight of
authorities" hold that "in determining whether a
defendant is eligible for relief under § 404 of the
First Step Act, the sentencing court should look to whether
the offense of conviction was modified by the Fair Sentencing
Act of 2010," and not to the conduct of the defendant.
Wright, 2019 WL 3231383, at *3 (collecting cases);
accord Johnson, 2019 WL 2590951, at *2.
court finds the weight of authority persuasive and adopts the
reasoning of cases holding that eligibility under §
404(b) of the First Step Act is determined with reference to
the offense charged. As several cases have explained, the
government's approach "effectively requires the
Court to employ a prosecutor-friendly 'way-back
machine' to conjure how the charge, plea, and sentencing
would have looked had the Fair Sentencing Act of 2010 been in
effect." United States v. Pierre, 372 F.Supp.3d
17, 22-23 (D. R.I. 2019) (quoted in Wright and
Johnson). A case relied on by the government
illustrates the difficulties involved. In United States
v. Blocker, 378 F.Supp.3d 1125, 1129 (N.D. Fla. 2019),
the court hypothesized that if the defendant had been charged
today, the indictment would state the post-Fair Sentencing
Act mandatory minimum threshold of 280 months. Only a grand
jury can find probable cause to support an indictment
charging a felony. See Fed. R. Crim. P. 7(c)(1),
6(f). Why should the court assume that a hypothetical grand
jury in 2005 would have found probable cause for the
increased amount of crack? The government points to
Cross' plea agreement, his PSR, and the sentencing
transcript. These are the fruits of the original indictment,
however. The government identifies no evidence then in
existence that would have supported an indictment for at
least 280 grams of crack. Congress did not intend courts to
undertake such an inquiry.
government contends that the courts that have ruled against
it have ignored § 404's plain language and two
Supreme Court cases discussed below. It attaches great
significance to Congress' use of the words
"violation" and "committed" in §
404's definition of a "covered offense." First
Step Act § 404(a). The government submits that if
Congress wanted to limit eligibility to the offense as
charged in the indictment, it would have used the word
"conviction" in the definition of charge offense.
Gov't Resp. 5-7.
than settling the meaning of the words "violation"
and "committed," the cases the government cites
underscore their ambiguity. The Supreme Court and the Seventh
Circuit have recognized that the word "violation"
can be ambiguous. See Dayton Bd. of Educ. v.
Brinkman, 433 U.S. 406, 413 (1977) ("The District
Court's use of the phrase 'cumulative violation'
is unfortunately not free from ambiguity."); United
States v. Midwest Generation, LLC, 720 F.3d 644, 646
(7th Cir. 2013) ("The phrase 'continuing
violation' is ambiguous.").
Supreme Court cases the government cites confirm this. In
Sedima, S.P.R.L. v. Imrex Co., ATS U.S. 479, 489
(1985), the Court held that the word "violation" in
terms of the RICO statute "refers only to a failure to
adhere to legal requirements." The Court did not declare
this to be the plain meaning of the word
"violation," however. See Id. Instead, it
analyzed the RICO statute's structure and text to
construe the term. See Id. The word
"violation" was not used in the statute interpreted
in the second case the government cites. Instead, the Court
interpreted the definition of a "misdemeanor crime of
domestic violence" used in 18 U.S.C. § 922(g)(9)
and defined in § 921(a)(33)(A). See United States v.
Hayes, 555 U.S. 415, 418, 426 (2009). Hayes
holds that the court is not bound by the statutory elements
of the predicate offense, but, as in Sedima, the
Court's thorough analysis of the federal statute's
text, structure, and drafting history cuts against the
government by undermining the notion that the language
Congress used was clear cut. See Id. at 426-29
(acknowledging that the statute is "not a model of the
careful drafter's art"). If anything, both cases
illustrate the importance of context when construing words
such as "violation" and "committed."
criminal cases, the term "violation" has been
interpreted to mean the offense formally charged, even if
other facts in the record suggest that enhanced penalties
could have been sought. The Seventh Circuit has used the word
violation in this sense when referring to "an indictment
or information alleging a § 841(a) violation."
United States v. Padilla, 23 F.3d 1220, 1224 (7th
Cir. 1994) (discussing plea colloquy). Indeed, the phrase
"fish and game violation" used in a portion of the
sentencing guidelines has been interpreted to refer to the
offense of which the defendant was actually convicted.
See United States v. Easterly, 95 F.3d 535, 536 (7th
Cir. 1996). Given the different senses in which the word
"violation" can be used, the terms must be analyzed
in the context of the words surrounding it. The canon of
statutory interpretation commonly called by its Latin name
"noscitur a sociis," teaches that "a word is
known by the company it keeps." McDonnell v. United
States, 136 S.Ct. 2355, 2368 (2016) (quoting Jarecki
v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).
This canon "is often wisely applied where a word is
capable of many meanings in order to avoid the giving of
unintended breadth to the Acts of Congress."
Id. (quoting same source).
read in context, the language of § 404 favors Cross'
reading. Again, the definition "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." First Step Act
§ 404(a). The use of the phrase "statutory
penalties" and the reference to §§ 2 and 3 of
the Fair Sentencing Act drive home the point that the
statutory offense at conviction, not facts found at a later
stage such as sentencing, controls § 404 eligibility.
The First Step Act cross-references § 2 and § 3 of
the Fair Sentencing Act. §§ 404(a), (b). Those
sections changed statutory minimums, not the guidelines.
See 124 Stat. 2372. A separate section of the Fair
Sentencing Act authorized the Sentencing Commission to
promulgate new guidelines conforming to the statutory changes
made in §§ 2 and 3. Dorsey, 567 U.S. at
269 (citing Fair Sentencing Act § 8(1)). As a whole,
then, § 404 keeps the focus on the Fair Sentencing
Act's statutory changes, scrupulously avoiding references
that might bring into play the sometimes elaborate fact
finding process under the sentencing
guidelines. See generally U.S.S.G. § IB
1.3. Seen in this context, the meaning of the term
"violation" becomes clear. It similarly eschews a
deep dive into the facts underlying the defendant's
conviction in favor of a straightforward analysis of whether
§ 2 or § 3 of the Fair Sentencing Act lowered the
mandatory minimum for the offense of which the defendant was
to a policy argument, the government maintains that reading
§ 404 of the First Step Act this way will create
unwarranted, and unintended, disparities between defendants
charged before and after the enactment of the Fair Sentencing
Act. See Gov't Resp. 8-10. This argument rests
ultimately on the notion that prosecutors had "no
reason" to indict defendants on amounts greater than the
5 and 50 grams that triggered pre-Fair Sentencing Act
mandatory minimums. Id. at 9. But again, the court
has no reason to assume that any defendant could have been
indicted on a greater drug quantity. Also, nothing mandates a
sentence reduction under § 404 for defendants found to
have trafficked in large drug quantities. Arguments ...