United States v. Antwoyn Spencer

United States Court of Appeals
         For the Eighth Circuit

             No. 19-2685

         United States of America

                   Plaintiff - Appellee


         Antwoyn Terrell Spencer

               Defendant - Appellant

             No. 19-2691

         United States of America

                   Plaintiff - Appellee


          Derrick Jerome Spencer

                Defendant - Appellant

  Appeal from United States District Court
       for the District of Minnesota
                           Submitted: February 17, 2021
                         Case Re-Submitted: March 5, 2021
                               Filed: May 27, 2021

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

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.


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U.S.C. § 841 (b)(1)(A)(iii) (repealed Aug. 3, 2010).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

, at *1 (noting that because Derrick had a prior drug conviction, he had a
20-year mandatory minimum sentence on the conspiracy charge).

       They moved to reduce their sentences under § 404 of the First Step Act. The
district court ruled them ineligible and denied relief. They appeal.


      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


 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

Id. at 771


      The Fair Sentencing Act of 2010 reduced (future) sentencing disparities
between crack-cocaine and powder-cocaine offenses. 


 citing Dorsey v. United

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.

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

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


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 


‘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


         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, 

F.3d 329

, 332, 334 (8th Cir. 2002) (“Under the [Sentencing] Guidelines, a multi-
count 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.

971 F.3d 1145

, 1153-54 (10th Cir. 2020) (no standing where defendant’s
concurrent sentences were nonreducible, unlike Antwoyn’s sentence that was

       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.

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, 

F.3d at 771

. It increased the minimum crack-cocaine quantity for the penalty ranges.


 (“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

      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, 

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
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, 

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.

       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

 (“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,


317 U.S. at 54


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