In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1591
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
SHANNON L. COTTON,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:07-cr-20019-MMM-EIL-1 — Michael M. Mihm, Judge.
____________________
ARGUED DECEMBER 12, 2023 — DECIDED JULY 26, 2024
____________________
Before SCUDDER, ST. EVE, and PRYOR, Circuit Judges.
SCUDDER, Circuit Judge. Shannon Cotton violated his su-
pervised release by using cocaine and losing all contact with
his probation officer. After the district court revoked the re-
lease, a dispute arose over the maximum period of imprison-
ment Cotton could face for the violations. The district court
determined that the answer was two years, disagreeing with
the government’s contention that Cotton faced a maximum
revocation sentence of five years. The question is difficult but,
2 No. 23-1591
in the end, we conclude the answer is five years based on the
language Congress used in 18 U.S.C. § 3583(e)(3). That leads
us to vacate Cotton’s revocation sentence and to remand for
resentencing.
I
Even though the question presented is primarily one of
statutory construction, the issue presented arises from a com-
plex procedural history. What’s important is keeping track of
Cotton’s original conviction and sentence, the discretionary
sentence reduction he later received, and intervening changes
in law.
Everything began in 2007, when Cotton pleaded guilty in
federal court to two counts of violating 21 U.S.C. § 841(a)(1),
(b)(1)(B) for distributing and possessing with intent to distrib-
ute at least five grams of cocaine. Each count brought with it
a mandatory minimum term of five years’ imprisonment and
a maximum term of forty years. See
id. § 841(b)(1)(B),
(b)(1)(B)(iii) (2007). But Cotton’s sentencing exposure in-
creased to a mandatory minimum of 10 years and a maximum
of life because the government, as was its right, invoked
21
U.S.C. § 851 and filed prior felony information based on Cot-
ton’s two prior Illinois felony convictions for possessing and
delivering cocaine in violation of 720 ILCS 570-401(c)(2),
(d)(i).
At sentencing the district court applied the Sentencing
Guidelines, determined that Cotton qualified as a career of-
fender, and imposed a sentence of 262 months (almost 22
years) and eight years of supervised release.
In 2010, and while Cotton was serving his sentence, Con-
gress passed the Fair Sentencing Act. See
Pub. L. 111-220, 124
No. 23-1591
3
Stat. 2372 (Aug. 3, 2010). The statute altered the threshold of
crack cocaine required to trigger certain statutory minimum
and maximum sentences under 21 U.S.C. § 841—the statute
under which Cotton had been convicted. Specifically, Con-
gress increased the quantity of cocaine necessary to trigger a
mandatory minimum five-year term of imprisonment from 5
grams to 28 grams. By its terms, however, the Fair Sentencing
Act applied only prospectively, not retroactively.
The law later changed again, this time in a way favorable
to Cotton. In 2018 Congress enacted the First Step Act, giving
district courts the discretion to resentence an applicant “as if”
the new penalties of the Fair Sentencing Act were in effect at
the time of the commission of the offense. See Pub. L. 115-391,
132 Stat. 5194 (Dec. 21, 2018). Cotton noticed the change in law
and moved for a reduction in his sentence. The district court
granted his motion and, in its discretion, reduced Cotton’s
sentence from 262 months to 188 months. The district court’s
order also expressly stated that “[e]xcept as provided above,
all provisions of the [original] judgment dated 11/20/2007
shall remain in effect.”
Cotton finished serving his sentence in the fall of 2020 and
began his term of supervised release. As too often happens,
though, Cotton’s struggle with substance abuse and drug
dealing got the better of him, leading in time to his probation
officer petitioning the district court to revoke supervised re-
lease based on positive tests for using cocaine and marijuana
and being arrested for possessing a sizeable quantity of mari-
juana.
A dispute then arose about the maximum revocation sen-
tence Cotton faced for his violations of supervised release.
Consistent with the view of the Probation Office, the
4 No. 23-1591
government took the position that the answer was five years.
But Cotton believed any revocation sentence could not exceed
two years. The different perspectives rooted themselves pri-
marily in competing interpretations of 18 U.S.C. § 3583(e)—
the statutory provision addressing maximum penalties at-
taching to revocations of supervised release.
The district court grappled with the statutory questions
and in the end sided with Cotton and imposed a revocation
sentence of two years with a new three-year term of super-
vised release to follow.
The government now appeals, renewing the legal conten-
tions it pressed in the district court.
II
A
The proper starting point is § 3583(e)(3), which tell us that
a court, upon finding a violation of supervised release, may
revoke a term of supervised release, and require
the defendant to serve in prison all or part of the
term of supervised release authorized by statute
for the offense that resulted in such term of su-
pervised release ... except that a defendant
whose term is revoked under this paragraph
may not be required to serve on any such revo-
cation more than 5 years in prison if the offense
that resulted in the term of supervised release is
a class A felony, more than 3 years in prison if
such offense is a class B felony, more than 2
years in prison if such offense is a class C or D
felony, or more than one year in any other case.
No. 23-1591 5
Id. § 3583(e)(3).
Notice at a basic level how Congress structured this pro-
vision: by hinging the maximum revocation sentence upon
the class of felony—A, B, C, or D—of the offense of conviction.
What the parties dispute is the measurement point—whether
the § 841 conviction is a class A, B, C, or D felony as a function
of Cotton’s 2007 judgment (the government’s view) or, in-
stead whether the class of felony turns on what the conviction
and sentence would be under current law (Cotton’s view).
An altogether different statute—18 U.S.C. § 3559—pro-
vides an essential link in the chain of reasoning necessary to
answer who has the better interpretation of § 3583(e)(3). Class
A felonies are those with a maximum prison sentence of life.
18 U.S.C. § 3559(a)(1). Class B felonies are those with a maxi-
mum term of 25 years or more (but less than life).
Id.
§ 3559(a)(2). Class C felonies are those with a maximum term
of 10 to 25 years in prison. Id. § 3559(a)(3). And, finally, class
D felonies are those whose maximum is less than ten but five
or more years. Id. § 3559(a)(4).
Returning to § 3583(e)(3), both sides insist that the statute’s
plain language supports their respective positions, with the
government urging us to focus on Congress’s use of the past
tense when stating that the class-of-felony determination de-
pends on “the offense that resulted in such term of supervised
release.” For the government, then, Cotton faced a maximum
revocation sentence of five years because his original convic-
tion in 2007 under § 841(a) and (b)(1)(B) exposed him to a
maximum sentence of life imprisonment—a class A felony.
The government gets there by reminding us that its filing of
the § 851 prior felony information in Cotton’s original case
6 No. 23-1591
had the effect of increasing the statutory maximum sentence
from 40 years to life.
Cotton advances a different interpretation of § 3583(e)(3),
directing our attention to Congress’s use of the present tense
for determining what the class of Cotton’s original offense of
conviction would be today—not, as the government would
have it, what it was in 2007. To put the point in statutory
terms, Cotton implores us to ask more generally whether an
equivalent § 841 offense “is” (if it resulted in conviction today)
a class A, B, C, or D felony.
Asking the question in the present tense yields clear bene-
fits for Cotton. He recognizes that, if convicted today of the
same § 841 offense to which he pleaded in 2007, he would face
a maximum sentence of 20 years. He gets there in two steps.
First, he points to the Fair Sentencing Act’s modified drug
quantity thresholds for cocaine charges under § 841 and cor-
rectly observes that his five-gram offense today would result
in the new (and not enhanced) twenty-year maximum term of
imprisonment. Second—to explain why his sentence would
not be enhanced today upon the government’s filing of a § 851
prior felony information—Cotton points to our 2020 decision
in United States v. Ruth, where we concluded that prior Illinois
cocaine convictions like Cotton’s do not trigger an enhance-
ment under 21 U.S.C. § 841. See
966 F.3d 642, 644 (7th Cir.
2020).
Cotton presses both points, for their combined effect re-
veals that if charged today with the same charges he faced in
2007, he would face a maximum sentence of 20 years—a class
C felony—and thus, under the terms of § 3583(e)(3), a 2-year
maximum revocation sentence. This is the reasoning the dis-
trict court agreed with and adopted.
No. 23-1591 7
B
The government has the better position. We arrive at that
conclusion by taking a step back and returning, as we must,
to the language Congress employed in § 3583(e)(3).
Recall that the maximum revocation sentence depends on
whether “the offense that resulted in the term of supervised
release is a class A felony,” or a class B felony, and so on. The
present-tense verb—“is”—cannot be divorced from what it
modifies: “the offense that resulted in the term of supervised
release.” Everyone agrees that Cotton’s 2007 conviction under
§ 841(a)(1) and (b)(1)(B) resulted in his term of supervised re-
lease. See United States v. Ford, 798 F.3d 655, 662 (7th Cir. 2015)
(explaining that the “offense that resulted in the term of su-
pervised release” is “the offense for which the defendant was
initially placed on supervised release”).
We can put the point another way. Section 3583(e)(3) does
not ask whether someone else’s conviction for the same conduct
“is” or would be a class A, B, C, or D felony under current
law. The statute asks whether Shannon Cotton’s conviction un-
der the 2007 version of 21 U.S.C. § 841(a)(1) and (b)(1)(B) “is”
a class A, B, C or D felony. The answer is yes: Cotton’s 2007
conviction was for a class A felony and that remains true to-
day.
This construction of § 3583(e)(3)’s language aligns with
the Supreme Court’s observation in Johnson v. United States
that post-revocation penalties arise from and are “treat[ed] ...
as part of the penalty for the initial offense.” 529 U.S. 694, 700
(2000); see also United States v. Snyder,
635 F.3d 956, 960 (7th
Cir. 2011) (suggesting that § 3583(e)(3) refers to the felony
8 No. 23-1591
classification of the defendant’s offense as of the time of sen-
tencing).
In the final analysis, then, we conclude that Cotton’s 2007
federal cocaine conviction remains and therefore “is” a class
A felony. And that remains so notwithstanding the passage of
the First Step Act or our decision in Ruth. Indeed, nothing
about a favorable exercise of the discretion conferred by the
First Step Act to reduce a sentence—a benefit Cotton re-
ceived—alters an original judgment of conviction. As the dis-
trict court stated in reducing Cotton’s term of imprisonment
under the First Step Act, “all other provisions of the [original]
judgment … shall remain in effect.” Cotton’s sentence was re-
duced, but his original conviction is intact.
Nor did our decision in Ruth alter Cotton’s felony classifi-
cation. In Ruth we held that an Illinois conviction for cocaine
distribution does not qualify as a predicate for enhanced pen-
alties under § 841 and § 851 because the state’s definition of
cocaine is categorically broader than the parallel definition in
the Federal Criminal Code. See 966 F.3d at 646–50. Cotton is
right that if he were sentenced today, he would not be subject
to the same penalties under § 841, nor would he receive a stat-
utory sentencing enhancement based on his Illinois cocaine
convictions. Again, though, Cotton is not being sentenced to-
day: he remains convicted of the same offense and pursuant
to the same judgment entered in 2007. Nothing we decided in
Ruth modified Cotton’s 2007 judgment of conviction. See
United States v. Jones, 833 F.3d 341, 344 (3d Cir. 2016) (holding
that intervening Supreme Court case law does not change the
felony classification of the base offense under § 3583(e)(3)).
A broader point also deserves emphasis. This entire ap-
peal is about the maximum revocation sentence Cotton faced
No. 23-1591 9
upon the district court’s determination that he violated the
conditions of supervised release. A revocation sentencing
proceeding is not an opportunity to challenge an underlying
conviction, and, even more specifically, § 3583(e)(3) does not
sit alongside § 2255 and present an alternative means availa-
ble to federal prisoners to challenge some aspect of their con-
viction or sentence. This point is clear in our case law.
See United States v. Torrez-Flores,
624 F.2d 776, 781 (7th Cir.
1980) (holding that challenges to an original sentence cannot
be raised during probation revocation proceedings); accord
United States v. Brock,
39 F.4th 462, 465–66 (7th Cir. 2022) (em-
ploying similar reasoning with respect to the compassionate
release statute,
18 U.S.C. § 3582(c)(1)(A)).
C
No doubt today’s decision will disappoint Shannon Cot-
ton. He is represented by a very able counsel who devised the
best available arguments for preserving the district court’s de-
termination that the maximum revocation sentence cannot ex-
ceed two years. While we have concluded that the maximum
is five years, it warrants underscoring that the district court
on remand has discretion in applying the 18 U.S.C. § 3553(a)
factors to select a reasonable revocation sentence below that
upper limit. See
18 U.S.C. § 3583(e) (authorizing the consider-
ation of specified § 3553(a) sentencing factors). In doing so,
moreover, the district court may consider intervening
changes in law since the time of Cotton’s original sentencing
in 2007 and the reduction he received under the First Step Act.
Cf. Concepcion v. United States,
597 U.S. 481, 502 (2022) (hold-
ing that a district court may consider nonretroactive legal
changes when resentencing under the First Step Act).
10 No. 23-1591
With this closing observation, we VACATE Cotton’s rev-
ocation sentence and REMAND to the district court for resen-
tencing.
No. 23-1591 11
PRYOR, Circuit Judge, concurring in part and dissenting in
part. ȱȱĴȱ ȱoriginally sentenced in 2007,
ȱȱȱ¡ȱȱȱȱǰȱȱȱěȱ ȱ
ȱȱȱ¢ǯȱȱȱȱȱǰȱ ǰȱĴȱ
ȱȱunder the First Step Actǯȱȱ ȱȱȬ
ȱȱȱĴǰȱȱ ȱ to recalculate
ĴȂȱ ȱ¢ȱȱǯȱȱǰȱȱǰȱ
became zero to 30 years in prison—reclassifying ĴȂȱȬ
fense as ȱȱȱ¢ǯȱ ȱȱ ǰȱȱȱȱȱ
its discretion—as ȱ ȱ ȱȱȱ¢ȱ—and
¢ȱapplied the Fair Sentencing Act through the First
Step Act ȱȱĴ.
he majority opinionǰȱ ǰȱȱȱȱȱȱ
ȱ ȱ ȱ ȱ ĴȂȱ ǯ I cannot agree
ȱthis conclusion, ȱȱȱȱ¢ȱȱȱȱ
ȱěȱȱȱFirst Step Act. I therefore respectfully
dissent in part.
I. BACKGROUND
A. ĴȂȱȱȱ ȱ
In 2007, ȱĴȱ ȱȱ ǰȱȱȱ
guilty to, ȱȱȱ ȱȱȱȱ
ȱȱęȱȱȱǯ 21 U.S.C. § 841(a)(1), (b)(1)(B)
ǻŘŖŖŝǼǯȱȱĴȱȱ ȱprior state felony drug con-
ǰȱȱ ȱȱȱȱ ȱ10 years and life
in prison. §§ 841(b)(1)(B)(iii), 851 ǻŘŖŖŝǼǯȱȱȱȱ ȱ
ȱȱȱȱȱȱȱ¢ȱȱȱȬ
lease. Id. § 841(b)(1)(B)(iii).
Later, the district court sentenceȱ Ĵȱ almost 22
years (262 months) in prison. And it ordered eight years of
ȱȱȱ .
12 No. 23-1591
ȱĴȱ ȱȱȱǰȱCongress passed
the Fair Sentencing Act in 2010.
Pub. L. No. 111-220, 124 Stat.
ŘřŝŘȱǻŘŖŗŖǼǯȱȱ— ȱȱ¢ȱ¢—in-
ȱȱȱȱȱȱȱȱȱȱ
mandatory minimum sentences under § 841. Id. § 2.
In 2018, Congress ȱȱȱȱȂȱęȱ
ȱȱȱǰȱȱĴǰ through
the First Step Act. Pub. L. No. 115-391, 132 Stat. 5194 (2018).
ȱȱ ȱȱȱȱȱȱȱȃȱ
ȄȱȱȱȱȂȱȱ ȱȱěȱ ȱȱ
ěȱ ȱĴǯȱId. § ŚŖŚǻǼǯȱĴȱed for a sen-
tence reduction under the First Step Act. ȱ ȱ ȱ
ȱ ȱ in 2020, reducing ĴȂȱ ȱ ȱ
slightly more than 15 years (188 months). It also shortened
ĴȂȱȱȱȱȱ¡ȱ¢ǯ
Sȱ ȱ ȱ ĴȂȱ ǰȱ ȱ ȱ
United States v. Ruth, 966 F.3d 642 (7th Cir. 2020). In that case,
ȱ ȱ ȱ ȱ ȱ ȱ —ȱ
the ones used to increase ĴȂȱ ¡ȱ —do
not trigger the § 841 sentencing enhancement. Id. at 644.
B. ȱȱ
ȱĴȱcompleted the reduced sentence and ȱȬ
ȱȱǰȱȱȱȱȱȱȱȱȬ
lease. Because of this misstep, ȱȱȱ ȱȱ
ȱȃȱǽĴȂǾȱȱȱȱȄȱȱȱ
ȱȱȱȱȱȱǯȱŗŞȱǯǯǯȱȗȱřŞśřǻǼǻřǼǯȱ
Here, the ȱȱȱȱdecide the maximum
sentence of imprisonment that the district court could ȱ
imposed on Ĵȱ ȱthe ǯȱȱ ȱȱ
ǰȱ ȱ ȱ ȱ to § řśŞřǻǼǻřǼǰȱ ȱ ȱ ȱ
No. 23-1591 13
maximum prison term for sentences ȱ ȱ ȱ
based on the ę of the underlying ěǯȱȃǽ Ǿȱȱ
ěȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
class A felony,” then the reimprisonment term is limited to
ęȱ¢ǯȱȗ 3853(e)(3). 1 A class B felony has a three-year max-
ǰȱȱȱȱȱȱ¢ȱȱ ȱ -year maximum, and
any other felony type has a one-year maximum. Id. ȱȬ
ęȱȱ¢ȱȱȱȱ¡ȱȱȱȬ
ȱ£ȱ¢ȱȱȱȱǯȱȗȱřśśşǻǼǯ
ȱǰȱ ȱĴȱ ȱ¢ȱȱȱŘŖŖŝǰȱ
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ǯȱ ȱ
ȱ ȱ ěȱ ȱȱȱȱ¢ǯȱȗȱřśśşǻǼǻŗǼǯȱĴȱ
ȱȱȱȱȱǰȱȱǰȱȱ his
¢ȱęȱȱ ǯȱǰȱĴȱȱȱ
ȱ ȱ ȱ ȱ ȱȱ ȱ ¢ȱ ȱ ȱ
¡ȱ ȱ ȱ ȱ ǰȱ ¢ȱ ȱ ȱ
class A felony into a class B felony. Second, he argues that our
decision in Ruth, 966 F.3d at 644, made clear that his prior
ȱȱ ȱ¢ȱȱȱȱȱȱ¡ȱ
sentence. Applying Ruthǰȱȱǰȱȱȱȱěȱ
ęȱȱȱ—this time to a class C felony.
ȱȱȱȱ ȱȱȱȱȱȱ Cot-
Ȃȱ¢ȱěȱ ȱȱȱȱ¢ because he no
ȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ
1 ȱ¢ȱȱ¢ȱȱȱȃȄȱȱȃǯȄȱ
See AnteǰȱȱśǰȱŝǯȱȱřśŞřǰȱ ǰȱȱ¢ȱȱ—and not
ȱǯȱ ȱǰȱȱȃȄȱȱȱȱǰȱ ȱȱȃȬ
ȄȱȱȱȱȱȃǯȄ Offense, BLACKȂS LAW D ȱ
(12th ed. 2024); Conviction, BLACKȂS LAW D ȱ (12th ed. 2024). Be-
ȱȱȱȱȱȱȱȱȱȱȱȱ ȱȃȬ
ǰȄȱ ȱȱȱȱ ȱȱ¢Ȃȱȱȱȱ ȱ
ȃȄȱȱȱȃȄȱȱȱ¢ȱ¡ȱȱȗȱřśŞřǯ
14 No. 23-1591
ȱ ȱ ȱ ¡ȱ ȱ ȱ ȱ ȱ
ȱŘŖȱ¢.
II. ANALYSIS
ȱ ȱ ȱ ȱ ȱ ȱ ȱ these
ȱȱ—the Fair Sentencing Act, First Step
Act relief, and Ruth—ȱ ȱ ęȱ ĴȂȱ
ȃěȱȱȱȱȱȱȱǽǾȱȱ.”
§ 3583(e)(3).
ȱȱthat ȱȱȱȱěȱȬ
ȱȱȱęȱȱȱ¢ȱ¢ because the
underlying ě has not been alteredǯȱ ȱ ȱ
ȱ ȱ are ȱ ȱ —ȱ ȱ ȱȱ Ȭ
lief—could ȱ ȱȱ¢ȱȱęǯ ȱȱ ȱȱ
¢ȱȱȱȱȱȱĜȱǯȱȱ ȱȱȱȬ
ȱȱȱȱ -supported by existing precedent.
A. -ȱ —ȱ ȱȱ ȱ
Ruth
Non-ȱȱȱȱ ȱ not change the
ęȱ ȱ ȱ ȃěȄȱ ȱ ȗ 3583(e)(3). Ȃȱ Ȭ
cause the ȃě” ȱȱěȱ¢ȱthe ȱȱ ȱ
¢ȱȱěǯ ȱȱȱȱȱȱ
arise after sentencing generally do not bear on the statutory
penalties for § 3583(e)(3) ȱǯȱUnited States v.
Ortiz, 779 F.3d 176, 180–82 (2d Cir. 2015) (per curiam) (inter-
ȱȱȱȱ¢ǼDzȱUnited States v. Johnson,
786 F.3d 241, 244 (2d Cir. 2015) (Fair Sentencing Act); United
States v. Turlington,
696 F.3d 425, 427–28 (3d Cir. 2012) (Fair
ȱǼǯȱȱȱȱ ȱ ȱȱȱȱ
ȱȱȱ¢ȱĴȱȱȬ
¢ȱȱȱȱȱ¡ǯȱE.g., United States
No. 23-1591 15
v. Torrez-Flores,
624 F.2d 776, 781 (7th Cir. 1980). Although the
majority does not say so explicitly, I understand it to be adopt-
ȱȱǯȱ ȱ ȱȱ ǯ
ȱȱȱ¢ȱȱȱȱȱȱȱ
Fair Sentencing Act of 2010 ȱ ȱ ĴȂȱ ěȱ
ȱȱęǯȱȱȱ ȱȱǰȱUnited States
v. Clay, 50 F.4th 608, 610 (7th Cir. 2022), and therefore fails to
apply to ȱ ȱ Ĵ. Turlington,
696 F.3d at 428
(noting that the Fair Sentencing Act does not apply to defend-
ȱ ȱ ȱȱȱȱȱȱȱȱȬ
ȱȱȱȱǼ.
Similarly, our 2020 decision in Ruth, 966 F.3d at 644, ȱ
ȱ ȱ ȱ ĴȂȱ ǰȱ not alter the
ęȱ ȱ ĴȂȱ ěǯȱ ȱ ȱ noted that Ruth
generally ȱȱȱȱě. See United States v.
Vaughn,
62 F.4th 1071, 1072 (7th Cir. 2023). ǰȱ Ruth
ȃȱȱȄȱȱ¢ȱĴȂȱě because he
ȱ ȱ ȱ ȱ ȱ Ruth ȱ ȱ
. Ortiz, 779 F.3d at 180–81. Indeed, the Second Circuit
ȱȱȱȱȱ en a defendant argued that
ȱȱȱȱ ȱȱȱRuth undermined his
ȱȱȱȱȱȱȱęȬ
ȱȱȱȱěǯȱId.
So, to the extent the majority concludes that non-retroac-
ȱȱȱȱ ȱȱȱȱęȱȱȬ
Ȃȱěǰȱ ȱǯ 2
2 Of course, nothing stops a district judge from considering non-retroac-
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȭ
tence. See Ante, at 9; see also ŗŞȱǯǯǯȱȗȗȱřśśřǻǼǻŜǼǰȱřśŞřǻǼȱǻȱȱ
16 No. 23-1591
B. ȱ—ȱȱȱ
ĴȂȱ ȱ ȱ ȱ ȱ ȱ ǰȱ ǰȱ
has merit. I respectfully ȱ ¢ ȱ¢ȱȱȱȱ
impact of ȱȱȂȱ¢ȱȱȱȱ
ȱȱȱȱĴȱȱŘŖŘŖ.
ȃǽǾȱȱȱȂȱȱȄȱ ȱȃȱȱȬ
ȱ ȱ ȱ ȱ ȱ ȱ ȱ .” Concepcion v.
United States, 597 U.S. 481, 497 (2022). ȱ ȱthe district
ȱ¡ȱȱȱȱȱĴȱȱȱ
relief, ĴȂȱěȱȱ ȱę because
ȱ¡ȱȱȱȱ ȱǯȱȱȬ
jority ȱȱȱĴȂ ěȱ ȱȱȬ
ęǯȱ ȱ — ȱ ȱ unsupported by cited
authority—undermines the ¢ȱȱȱȱFirst Step Act.
ȱ ȱ ȱ ǰȱ hen a district court ę a de-
fendant eligible for relief under the First Step Act, the court
ȱ ȃǽǾȱ ȱ ¢ȱ ȱ ȱ ¡ȱ
ȱ ȱȱȱȱdzȱȱȱȱȱȱ
ȱěȱȱȱȱȱǽǾȱ ȱ¢ȱǯȄȱ
United States v. FowoweǰȱŗȱǯŚȱ śŘŘǰȱ śŘşȱǻŝȱ ǯȱŘŖŘŗǼǯȱȱ
court may ȱȱȱȂȱȱ ȱȱ
bounds. See id. at 529, 532. he courtǰȱ ǰ ȱȱȱ
to do so; it has broad discretion to refuse to resentence an oth-
-ęȱǯȱId. at 527.
Here, the district court chose to use its discretion to resen-
ȱĴǯȱ ȱȱȱȱȱȱȱĴȂȱȱȱ
ȱ ȱ ȱ ǯȱ ȱ Ȃȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱȱ ȱȱȱȱȱȱȬ
ȱȱȱǼǯ
No. 23-1591 17
ȱ ȱ ȱ ȱ ȱ Fowowe, and recalculated
ĴȂȱ ȱstatutory minimum and maximum ȱȃȱ
if” the Fair Sentencing Act ȱě ȱĴȱ ȱȬ
ǯȱSee 1 F.4th at 532.
ȱȱĴȱ ȱȱ ǰȱȱȱ¢ȱ
to, ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱęȱȱȱǯ A ę-ȱ-ȱěȱ
ȱȱȱ¢ȱȱȱ¢ȱȱ¡ȱȱȱ
in prison in 2007 ȱȱȱȱ¢ȱȱȱ.
21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 851 (2007).
ȱȱȱǰȱ ǰȱȱȱȱ
ȱȱȱ¢ȱȱȱȱ¢ȱȬ
mums. Fowowe, 1 F.4th at 525. And if this Act had been in place
ȱ ĴȂȱ ǰȱ ȱ ę-ȱ -cocaine of-
fense— ȱ ȱ ȱ ¢ȱ ȱ — ȱ ȱ
yielded, at most, a 30-year prison sentence and a statutory
ȱȱ¡ȱ¢ȱȱȱ. §§ 841(b)(1)(C),
851.
ȱ recalculated statutory sentencing range—zero to 30
years in prison—ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱ ȱ ȱ Ĵ in 2020. ȱ ȱ ǰȱ
ȱ ȱ ȱ ¢ȱ ȱ ȱ ¡ȱ Ȭ
ȱȱĴȱȱȱȱȱě. ȱȱȱ
the statutory maximums ȱ ¢ȱ ĴȂȱ ȱ
caused ĴȂȱěȱto become a class B felony. 18 U.S.C.
§ 3559(a)(1)–ǻŘǼȱǻȱȱěȱ ȱ¡ȱȬ
tences of 25 years or more, but less than life, are class B felo-
nies).
ȱ ȱ ȱ ȱ ĴȂȱ ȱ ęȱ this.
ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ Ĵȱ ȱ ȱ
18 No. 23-1591
prison sentence, also ȱȱȱȱȱȱ
from eight years to six years. ȱȱǯȱȱ¡-year super-
ȱ ȱ ȱ ȱ ¢ȱ ȱ ¢ȱ ȱ the district
ȱȱȱĴȂȱěȱ ȱ ȱȱȱȬ
ȱȗȱŞŚŗǻǼǻŗǼǻǼǰȱ ȱȱȱȱȱ¡ȱ¢ȱȱ
ȱ ǰȱ ȱ ȱ ȱ ȗ 841(b)(1)(B)(iii)ǰȱ ȱ
ȱȱȱȱȱ¢ȱȱȱǯȱȱȱ
ȱȱȱȱĴȂȱěȱȱȱȱ
ȗȱŞŚŗǻǼǻŗǼǻǼȂȱǰȱȱȱȱȱȱĴȱ
could be sentenced to no more than 30 years in prisonǰȱȱ
ĴȂȱȱ¢ȱȱ. Again, that means that
ĴȂȱ ěȱ a class B felony.
18 U.S.C.
§ 3559(a)(2).
ȱ¢ȱȱȱȱȱ¢ȱȬ
ing that the district court stated in its First Step Act relief order
ǰȱ ¡ȱ ȱ ȱ ǰȱ ȃȱ ȱ ȱ ȱ
ǽǾȱ ȱ dzȱ ȱ ȱ ȱ ěǯȄȱ In the major-
¢Ȃȱ ǰȱȱȱȱȱȱȱȱȱĴȂȱȬ
ȱ ȱ¡¢ȱȱȱ¢ȱȱȱǯȱȱ
ȱȱȱȱȱthe district court exercised its dis-
ȱȱęȱĴȂȱěȱȱȱȬ
ȱȱof the Fair Sentencing Act. ȱęȬ
ȱȱȱȱ¢ȱȱȱȱȱĴȱ¡ȱ
¢ȱ ȱ ȱ ȱ ȱ ǯȱ ȱ ȱ ȱ
ȱȱ¢ȱȱf the court desired ĴȂȱ
ěȱ remain a class A felony under § 841(b)(1)(B)(iii),
ȱȱ ȱȱȱȱ¡ȱȱȱȱȱȱȱ
ȱȱȱ¢ȱȱȱǰȱȱĴȂȱ
ȱ¢ȱȱ.
ȱȱȱȱ¡¢ȱȱȱȱȱȱȬ
ȱęȱěȱȱȱ ¢ǯȱȱ ȱȱassumed in
No. 23-1591 19
non-precedential Anders orders that this is the case. In United
States v. Perkins, for example, ȱȱȱȱȱ
ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ǰȱ ȱ ȱ
ȱȱŘŖŖŝȱ-ȱěǰȱ ȱ ȱȱȱȱȱ
¢ǰȱȃȱȱǽǾȱȱ¢ȄȱȃǽǾȱȱȱ
application of the Fair Sentencing Act.” No. 21-1421, 2021 WL
śŗśŞŖŖŖǰȱȱȘŘȱǻŝȱǯȱǯȱśǰȱŘŖŘŗǼDzȱsee United States v. Baker,
No. 21-2182, 2022 WL 523084, at *3 (7th Cir. Feb. 22, 2022)
(same).
ȱȱȱ¢ȱ courts ȱȱ
ȱęȱǯȱȱȱ¢ȱȱȱȱȱȬ
lyze the problem generally came to the same conclusion, al-
beit also in non-precedential fashion. United States v. Jones,
No. 22-30480, 2023 WL 6458641, at *4 (5th Cir. Oct. 4, 2023). In
JonesǰȱȱȱȱȱȱȱȱȱȱȱȬ
ȱȱȱǯȱId. at *1. He argued that
the ȱęȱȱȱ-cocaine ě from a
class A felony to a class B felony.
Id. ȱȱǰȱ Ȭ
ǰȱȱȱ ȱȱȱ¢ȱȱȱȱȱ
ęǯȱId. ȱȘŘǯȱȱȱȱǯȱId. at *5. It
ȱȱ ȱȱ ȱȱ ȱ ȱ ȃȱ Ȅȱ ȱ
ȱ ȱ ȱ ¢ǰȱ ȱ ȱ ȱ ȱ
ȱȂȱ¢ȱęȱȱȱ-ǯȱId. at
*4. ȱȱ ȱȱȱȱȱȱȱȱȱȱȬ
clusion.
ȱǰȱĴȂȱȱȱȱȱȱȱin
2020 ¢ȱȱȱę of his underlying
ě—that is, from a class A to a class B felony. ȱ hold
ȱ ȱȱȱ¢ȱĴȱȱęȱȱ ȱȱ
ȱ ȃȱ ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ
20 No. 23-1591
generation.” Pulsifer v. United States, 601 U.S. 124, 155 (2024)
ǻ ǰȱ ǯǰȱǼȱǻȱĴǼǯȱ
* * *
For these reasons, ȱȱ ȱȱ¢ȱȱȱ¡ȱ
that non-ȱ ȱ ȱ ȱ —including the pas-
sage of the Fair Sentencing Act and our decision in Ruth—do
ȱȱȱęȱȱĴȂȱ¢ȱě.
ȱ ȱ ¢ȱ ȱ ȱ ȱ ¢Ȃȱ ȱ ȱ
ĴȂȱresentencing under the First Step Act did ȃȄȱ
ȱ ȱ ȱ ěȱ ęǯȱ ȱ ȱ ǰȱ ȱ ȱ
ȱȱĴȂȱ¢ȱěȱȱȱȱȱ¢ and
the district court on remand could ȱĴȱȱȱmore
than three years in prison.