United States v. Jackson

• Decision Date: 01 July 2020
• Docket Number: No. 19-2517,No. 19-2499,19-2499
• Citation: 964 F.3d 197
• Parties: UNITED STATES of America v. Anthony JACKSON, Appellant United States of America v. Kevin Harris, Appellant
• Court: U.S. Court of Appeals — Third Circuit

964 F.3d 197

UNITED STATES of America

v.Anthony JACKSON, Appellant

United States of America

v.Kevin Harris, Appellant

No. 19-2499

No. 19-2517

United States Court of Appeals, Third Circuit.

Argued March 4, 2020

Filed: July 1, 2020

OPINION OF THE COURT

SMITH, Chief Judge.

Kevin Harris and Anthony Jackson seek discretionary reductions of their sentences pursuant to § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. The District Courts denied relief, and on appeal, the primary issue is § 404 eligibility. Due to several errors that we describe below, we will vacate and remand in United States v. Harris and reverse and remand in United States v. Jackson .

I

In 2006, Kevin Harris pleaded guilty to possession with the intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). As part of his plea agreement, Harris stipulated to the quantity he possessed—33.6 grams. Harris later moved in 2019 for a reduction of his 210-month sentence pursuant to § 404. See 132 Stat. at 5222. The U.S. District Court for the Western District of Pennsylvania assumed that Harris was eligible under § 404 but denied relief, stating that "neither the statutory penalties nor the advisory guidelines range would be affected if [he] were sentenced today given the stipulated drug quantity." Harris App. 1–2.¹ Harris timely appealed, claiming that this inaccurate statement tainted the Court's decision.

Anthony Jackson was convicted in 2004 of violating the same statute, § 841(a)(1), (b)(1)(B)(iii). His indictment charged him with possession with the intent to distribute crack "in excess of five (5) grams, that is approximately forty-eight (48) grams." Jackson App. 46–47. The jury convicted Jackson of possessing five grams or more, without any specific finding that he possessed forty-eight grams. In 2019, Jackson moved under § 404 for a reduction of his 300-month sentence. See 132 Stat. at 5222. The U.S. District Court for the Eastern District of Pennsylvania denied relief, determining that he was ineligible. Jackson filed a timely appeal.

II

Several years after Harris and Jackson were convicted and sentenced, Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372.² Section two amended their statute of conviction, § 841(b)(1)(B)(iii), by increasing the quantity threshold from five to twenty-eight grams of crack.³ See 124 Stat. at 2372. The Fair Sentencing Act, however, was not retroactive, see Dorsey , 567 U.S. at 264, 132 S.Ct. 2321, so neither Harris nor Jackson was able to benefit from its passage.

Enactment of the First Step Act in 2018 held the potential to remedy Harris's and Jackson's ineligibility. It provides that "[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." § 404(b), 132 Stat. at 5222. Section 404 permits the retroactive application of the penalty modification enacted in the Fair Sentencing Act, but its effect applies only to "covered offenses." Id. So our initial inquiry concerns eligibility—whether a defendant has committed a "covered offense." Id. Yet even if a defendant is eligible for relief because he committed a "covered offense," that in itself "does not mean he is entitled to it." United States v. Beamus , 943 F.3d 789, 792 (6th Cir. 2019). A district court may reduce a sentence but is not required to do so. See § 404, 132 Stat. at 5222 (statutory text makes § 404 discretionary); United States v. Jackson , 945 F.3d 315, 321 (5th Cir. 2019) (same).

III

The District Courts had jurisdiction pursuant to 18 U.S.C. § 3231. This Court exercises jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

As to the proper interpretation of a statute, our review is plenary. See United States v. Hodge , 948 F.3d 160, 162 (3d Cir. 2020). If a defendant is eligible for a reduced sentence under § 404, a district court's denial of relief is reviewed for an abuse of discretion. A district court abuses its discretion by making an error of law or by relying on a clearly erroneous factual conclusion. See United States v. Wise , 515 F.3d 207, 217 (3d Cir. 2008).

IV

We begin, as we must, with the plain text of § 404. See Hodge , 948 F.3d at 162 ; United States v. Introcaso , 506 F.3d 260, 264 (3d Cir. 2007). "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). If the statutory language is clear, then the text of the statute is the end of the matter. See United States v. Jones , 471 F.3d 478, 480 (3d Cir. 2006). But when a statute includes language reasonably susceptible to different interpretations, a court may attempt to discern Congress's intent by employing canons of statutory construction. See Introcaso , 506 F.3d at 264–65 ; Dobrek v. Phelan , 419 F.3d 259, 264 (3d Cir. 2005).

Section 404 reads,

(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 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.

(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

132 Stat. at 5222. As relevant to this dispute, a "covered offense" is "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." Id. (emphasis added).⁴

The government contends that what matters for a "covered offense" is the defendant's actual conduct (i.e., the drug quantity a defendant possessed), not limited to the charge in the indictment or the statute of conviction.⁵ This conduct-based interpretation is reasonable if (1) the penalties clause modifies the word "violation" instead of "Federal criminal statute" and (2) "violation" refers to the underlying drug quantity, not the offense of conviction as defined by statute. See Jackson , 945 F.3d at 320 ; United States v. Wirsing , 943 F.3d 175, 185–86 (4th Cir. 2019). Conversely, Harris and Jackson argue that the term "covered offense" turns on a defendant's statute of conviction.⁶ This approach results if the penalties clause modifies "Federal criminal statute" rather than "violation."

V

Although § 404(a) is reasonably susceptible to these different interpretations, textual indicia lead us to concur with other courts of appeals that have already resolved this issue: Congress intended eligibility to turn on a defendant's statute of conviction rather than his conduct. See United States v. Smith , 954 F.3d 446, 448–49 (1st Cir. 2020) ; United States v. Johnson , 961 F.3d 181, 183 (2d Cir. 2020) ; United States v. Wirsing , 943 F.3d 175, 185–86 (4th Cir. 2019) ; United States v. Jackson , 945 F.3d 315, 321 (5th Cir. 2019), cert. denied , ––– U.S. ––––, ––– S.Ct. ––––, 206 L.Ed.2d 839 (2020) ; United States v. Boulding , 960 F.3d 774, 775 (6th Cir. 2020) ; United States v. Shaw , 957 F.3d 734, 735 (7th Cir. 2020) ; United States v. McDonald , 944 F.3d 769, 772 (8th Cir. 2019) ; United States v. Jones , 962 F.3d 1290, 1299–1301, 2020 WL 3248113, at *7 (11th Cir. 2020).

First, "[a] general rule of statutory interpretation is that modifiers attach to the closest noun; courts should not interpret statutes in such a way as to ‘divorce a noun from the modifier next to it without some extraordinary reason.’ "⁷ Wirsing , 943 F.3d at 185 (quoting Lopez v. Gonzales , 549 U.S. 47, 56, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) ). "Federal criminal statute" immediately precedes the penalties clause. Thus, it is more natural to attach the penalties clause to "Federal criminal statute" instead of "violation." See Jackson , 945 F.3d at 320 ; Wirsing , 943 F.3d at 185.

Second, according to the "anti-surplusage" canon, "[i]t is our duty to give effect, if possible, to every clause and word of a statute. See Duncan v. Walker , 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche , 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) ).

[B]ecause sections 2 and 3 of the Fair Sentencing Act affected only violations of "Federal criminal statute[s]," it is hard to see what purpose the phrase "Federal criminal statute" could serve, or why Congress would have placed it where it did, except to be the antecedent of the limiting clause. In other words, if ["violation" or] "violation of a Federal criminal statute" were the antecedent of the limiting clause, then the meaning of Section 404(a) would be the same as if it read:

[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

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