United States v. Bryant

20-1078-cr
United States v. Bryant
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2020
No. 20-1078-cr
U NITED S TATES OF AMERICA,
Appellee,
v.
C HARLES B RYANT AKA C-ROCK,
Defendant-Appellant,
JOSEPH MERCADO AKA S HAGGY , L AMONT D IGGS AKA L,
Defendants.
On Appeal from the United States District Court
for the Southern District of New York
S UBMITTED: MARCH 4, 2021
DECIDED: MARCH 26, 2021
Before: LEVAL , C ABRANES , and R AGGI, Circuit Judges.

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In 2007, Defendant-Appellant Charles Bryant was convicted of
conspiracy to distribute more than 50 grams of cocaine base (“crack
cocaine”) in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A), and 846
(Count One), among other offenses, and sentenced principally to a 300-
month term of imprisonment. Bryant now appeals from an order
dated March 13, 2020, entered by the United States District Court for
the Southern District of New York (Laura Taylor Swain, Judge),
granting in part his motion for a sentence reduction pursuant to the
First Step Act of 2018 and reducing his term of imprisonment from 300
months to 216 months. On appeal, Bryant argues he was entitled to the
benefit of Section 401(a) of the First Step Act, which amended Section
841(b)(1)(A) such that any prior “felony drug offense” no longer
triggers that section’s sentencing enhancement.
We hold that Bryant does not qualify for relief afforded by
Section 401(a) of the First Step Act. This is because (1) the plain text of
Section 401(c) limits the retroactive effect of Section 401(a), making its
relief available to defendants who committed offenses before the First
Step Act became law but only if they have not yet had a sentence
imposed as of the date of enactment; and (2) Section 404(b) of the First
Step Act does not require a district court to engage in “plenary
resentencing” or “recalculate an eligible defendant’s Guidelines range,
except for those changes that flow from Sections 2 and 3 of the Fair
Sentencing Act,” United States v. Moore, 975 F.3d 84, 92 (2d Cir. 2020).
Because Bryant’s original sentence on Count One was imposed in
2007—long before the date of the enactment of the First Step Act—he

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is precluded by Section 401(c) from benefiting from Section 401(a)’s
changes to the sentencing enhancement of Section 841(b)(1)(A), which
are unrelated to Sections 2 and 3 of the Fair Sentencing Act. We
accordingly AFFIRM the District Court’s order dated March 13, 2020.
Jarrod L. Schaeffer and Thomas McKay,
Assistant United States Attorneys, for
Audrey Strauss, United States Attorney for
the Southern District of New York, New
York, NY, for Appellee.
Matthew B. Larsen, Attorney, Appeals
Bureau, Federal Defenders of New York,
Inc., New York, NY, for Defendant-Appellant.
Per Curiam:
In 2007, Defendant-Appellant Charles Bryant was convicted by
a jury of conspiracy to distribute more than 50 grams of cocaine base
(“crack cocaine”) in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A),
and 846 (Count One), among other offenses. At that time, a defendant
like Bryant, who had a prior conviction for a felony drug offense, faced
an enhanced mandatory minimum sentence of twenty years of
imprisonment for Count One under 21 U.S.C. § 841(b)(1)(A). The
United States District Court for the Southern District of New York
(Laura Taylor Swain, Judge) sentenced Bryant principally to a 300-

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month term of imprisonment, followed by a term of supervised
release.
In 2018, the First Step Act became law1 The next year, Bryant
moved for a sentence reduction under Section 404(b) of the First Step
Act. The District Court granted Bryant’s motion in part, reducing his
term of imprisonment to 216 months. Bryant appealed, arguing that he
was entitled to a further reduction under Section 401(a) of the First
Step Act, which amended Section 841(b)(1)(A) such that a prior “felony
drug offense” no longer necessarily triggers the sentencing
enhancement that applied at the time of his sentencing in 2007.
We hold that Bryant does not qualify for relief afforded by
Section 401(a) of the First Step Act, which narrows the applicability of
the Section 841(b)(1)(A) sentencing enhancement. The plain text of
Section 401(c) limits the application of Section 401(a) to defendants
who committed offenses before the First Step Act became law only “if
a sentence for the offense has not been imposed as of such date of
enactment.”2 Further, Section 404(b) of the First Step Act does not
require consideration of changes other than those “that flow from
Sections 2 and 3 of the Fair Sentencing Act of 2010.”3 Here, Bryant’s
original sentence on Count One was imposed in 2007—long before the
First Step Act’s enactment. He is thus precluded by Section 401(c) from
benefiting from Section 401(a)’s changes to the Section 841(b)(1)(A)
1 Pub. L. No. 115-391, 132 Stat. 5194 (2018) (“First Step Act”).
2 First Step Act § 401(c), 132 Stat. at 5221.
3 United States v. Moore, 975 F.3d 84, 92 (2d Cir. 2020).

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sentencing enhancement, which are unrelated to Sections 2 and 3 of
the Fair Sentencing Act. We accordingly AFFIRM the District Court’s
order dated March 13, 2020.
I. BACKGROUND
In 2007, Defendant-Appellant Bryant was convicted by a jury of
conspiracy to distribute more than 50 grams of crack cocaine in
violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A), and 846 (Count One),
among other offenses.
Bryant was sentenced later that year. At that time, a defendant
like Bryant who was convicted of a crime involving more than 50
grams of crack cocaine and who had a prior conviction for a “felony
drug offense” faced an enhanced mandatory minimum sentence of
twenty years of imprisonment under 21 U.S.C. § 841(b)(1)(A). Bryant
was thus subject to a twenty-year mandatory minimum term of
imprisonment for his conviction on Count One.
The District Court imposed a 300-month term of imprisonment
on Bryant for each of his three counts of conviction, all to run
concurrently, followed by a term of supervised release.
The Fair Sentencing Act of 2010 and the First Step Act of 2018
Several years after Bryant’s sentencing, the Fair Sentencing Act
of 2010 took effect, which increased the drug amounts needed to
trigger mandatory minimum sentences for offenses involving crack

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cocaine.4 Before the Fair Sentencing Act, an offense charged as
involving 50 grams or more of crack cocaine carried a minimum of 10
years and a maximum of a life term of imprisonment under 21 U.S.C.
§ 841(b)(1)(A)(iii). Section 2 of the Fair Sentencing Act raised the
threshold quantity for that penalty range to 280 grams.5 The Fair
Sentencing Act did not apply retroactively; it applied only to
defendants sentenced on or after August 3, 2010.6
Eight years later, on December 21, 2018, the First Step Act
became law.7 Section 404(b) of the First Step Act states that a district
court that imposed a sentence for a “covered offense,” as defined in
Section 404(a),8 may “impose a reduced sentence as if sections 2 and 3
of the Fair Sentencing Act . . . were in effect at the time the covered
offense was committed.”9
Section 401(a) of the First Step Act also amended the mandatory
felony drug offense sentencing enhancement in Section 841(b)(1)(A) to
apply only when a defendant has “a prior conviction for a serious drug
4 Pub. L. No. 111-220, 124 Stat. 2372 (2010); see Dorsey v. United States, 567
U.S. 260, 269 (2012).
5 See 124 Stat. at 2372; see also United States v. Moore, 975 F.3d 84, 87 n.5 (2d
Cir. 2020).
6 See Dorsey, 567 U.S. at 282; United States v. Martin, 974 F.3d 124, 131 (2d Cir.
2020).
7 First Step Act, 132 Stat. at 5194.
8 Section 404(a) of the First Step Act defines “covered offense” 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 . . . that was committed before August 3,
2010.” Id. § 404(a), 132 Stat. at 5222.
9 Id. § 404(b), 132 Stat. at 5222.

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felony or serious violent felony[.]”10 In other words, the Section
841(b)(1)(A) sentencing enhancement, as amended, no longer
necessarily applies to a defendant who has a prior conviction for a
felony drug offense. Further, the First Step Act stated that Section
401(a) and “the amendments made by this section” applied
retroactively to any offense that was committed before the December
21, 2018 date of its enactment only “if a sentence for the offense has not
been imposed as of such date of enactment.”11
Bryant’s motion for a reduced sentence
In 2019, Bryant moved for a reduction of his sentence pursuant
to Section 404(b) of the First Step Act. After determining that Bryant
was eligible for resentencing, the District Court considered Bryant’s
argument that, in connection with Count One, he was further entitled
to receive the benefit of Section 401(a)’s changes to the Section
841(b)(1)(A) sentencing enhancement.
The District Court determined that Section 401(a) of the First
Step Act was not applicable to Bryant’s resentencing.12 It reached this
10 Id. § 401(a)(2)(B), 132 Stat. at 5220–21 (emphasis added); see also United
States v. Thompson, 961 F.3d 545, 548 n.3 (2d Cir. 2020). Under the First Step Act’s
new framework, only a defendant who has a prior serious drug felony conviction
triggers the sentencing enhancement of Section 841(b)(1)(A) whereas a defendant
like Bryant, who has only a prior conviction for a “felony drug offense,” no longer
triggers that sentencing enhancement.
11 First Step Act § 401(c), 132 Stat. at 5221. It is for this reason that, unlike
Section 404, Section 401 of the First Step Act has been described as forward-looking.
See, e.g., United States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019).
12 United States v. Bryant, 443 F. Supp. 3d 414, 418 (S.D.N.Y. 2020).

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conclusion by looking at the statutory text, which states that the
changes to the Section 841(b)(1)(A) sentencing enhancement could be
applied to offenses committed before the First Step Act became law in
limited circumstances—that is, “if a sentence for the offense has not
been imposed as of such date of enactment.”13 Because Bryant’s
original sentence on Count One was imposed in 2007, the District
Court reasoned that he was precluded by Section 401(c) from
benefitting from the First Step Act’s changes to the sentencing
enhancement of Section 841(b)(1)(A).
The District Court proceeded to re-calculate the applicable
United States Sentencing Guidelines range for Bryant, finding it
unchanged from the original range of 360 months to life
imprisonment. After considering the relevant factors under 18 U.S.C.
§ 3553(a), the District Court resentenced Bryant, reducing his term of
imprisonment from 300 months to 216 months for each count, again to
be served concurrently. Bryant timely appealed. He is serving his
sentence.
II. DISCUSSION
Where a district court’s decision turns on statutory
interpretation, this Court reviews de novo the applicability of the First
Step Act to a defendant’s case.14
13 First Step Act § 401(c), 132 Stat. at 5221.
14 See United States v. Holloway, 956 F.3d 660, 664–65 (2d Cir. 2020); see also
Moore, 975 F.3d at 88–89 (“[W]hen [t]he underpinning of the district court’s ruling

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On appeal, the parties do not dispute Bryant’s eligibility for
resentencing on Count One under Section 404(b) of the First Step Act.15
The only point of contention is whether Bryant was entitled to the
benefit of the First Step Act’s changes to the sentencing enhancement
in Section 841(b)(1)(A) at his resentencing. This is a question of first
impression in our Circuit, for we have not previously addressed
whether the First Step Act’s changes to the sentencing enhancement of
Section 841(b)(1)(A) apply to a defendant in Bryant’s position.16
Bryant concedes that Section 401(a)’s changes to Section
841(b)(1)(A) do not apply retroactively. Instead he argues that when a
district court reduces a sentence pursuant to Section 404(b) of the First
Step Act, it must also apply any intervening statutory changes,
including Section 401(a)’s changes to the sentencing enhancement,
[is] statutory interpretation, we review it de novo.” (internal quotation marks
omitted)).
15 “A district court considering a motion for a sentence reduction under the
First Step Act must conduct a two-part inquiry. First, the court must determine
whether the defendant is eligible for a reduction. Second, if the defendant is eligible,
the court must determine whether, and to what extent, to exercise its discretion to
reduce the sentence.” Moore, 975 F.3d at 89.
16 We recently stated, without elaboration, that the First Step Act's
amendments to the sentencing enhancement in Section 841(b)(1)(B), which was
changed by the First Step Act in the same manner as was Section 841(b)(1)(A)’s
sentencing enhancement, was limited in its retroactive applicability by Section
401(c). See Thompson, 961 F.3d at 548 n.3 (citing Section 401(c) of the First Step Act
to explain that the defendant, who “was sentenced several months before the First
Step Act was enacted,” cannot benefit from the “heightened threshold for the
imposition of § 841(b)(1)(B)’s sentencing enhancement”).

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which would have reduced the applicable Guidelines range on
resentencing.
We do not agree. The plain text of Section 401(c) of the First Step
Act runs contrary to Bryant's argument. By its terms, that section limits
the retroactive effect of the changes made by Section 401(a) to the
sentencing enhancement of Section 841(b)(1)(A). Indeed, Section 401(c)
provides that the changes to the sentencing enhancement can apply
retroactively to “any offense that was committed before the date of
enactment of this [First Step] Act, if a sentence for the offense has not
been imposed as of such date of enactment.”17
Under the terms of Section 401(c), Bryant cannot benefit from
the heightened threshold for the imposition of Section 841(b)(1)(A)’s
sentencing enhancement. Here, it is undisputed that Bryant committed
Count One in 2005 and his sentence for that offense was imposed in
2007, long before the date of the First Step Act’s enactment—indeed,
more than ten years before it became law. The plain text of Section
401(c) thus precludes Bryant from relief under Section 401(a).18
Bryant contends that Section 401(c) does not apply to him
because that section has as its heading “APPLICABILITY TO
PENDING CASES,”19 and Bryant’s case was not pending at the time
17 First Step Act § 401(c), 132 Stat. at 5221 (emphasis added).
18 See Note 16, ante.
19 First Step Act § 401(c), 132 Stat. at 5221.

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the First Step Act was enacted.20 This argument lacks merit. A
statutory title or heading cannot override or undo the plain meaning
of the statutory text.21 And, in any case, our construction is not in any
way contradicted by the heading. Section 401(c) explains that Section
401(a) applies to offenses committed before the enactment of the First
Step Act, “if a sentence for the offense has not been imposed as of such
date of enactment.”22 That is, Section 401(c) describes the First Step
Act’s applicability to one type of pending case.
Our conclusion that Bryant is not entitled to relief under Section
401(a) coheres with our recent decision construing the First Step Act
as not requiring a district court to consider intervening changes in law
in resentencing a defendant. In United States v. Moore, we held that a
sentencing reduction pursuant to Section 404(b) “does not require
plenary resentencing or operate as a surrogate for collateral review,
obliging a court to reconsider all aspects of an original sentencing.”23
Rather, a district court that chooses to resentence a defendant under
Section 404(b) need only “recalculate an eligible defendant’s
20 Appellant’s Br. at 17.
21 See Brotherhood of R. R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528–
29 (1947).
22 First Step Act § 401(c), 132 Stat. at 5221.
23 Moore, 975 F.3d at 90.

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Guidelines range [to account] for those changes that flow from
Sections 2 and 3 of the Fair Sentencing Act[.]”24
That is just what the District Court did here. Under the First Step
Act, Bryant was plainly eligible for resentencing on Count One as if
the amendments to Section 841(b)(1)(A)(iii) made by Section 2 of the
Fair Sentencing Act had been in force at the time he committed that
offense.25 But the Fair Sentencing Act left unchanged Section
841(b)(1)(A)’s sentencing enhancement for defendants with prior
convictions for drug felonies. Indeed, it was only much later—in
2018—that Section 841(b)(1)(A) was amended by the First Step Act. to
require that a defendant have a prior conviction for a serious drug
felony for the sentencing enhancement to apply. Even if the
amendments of Sections 2 and 3 of the Fair Sentencing Act had been
in force at the time Bryant committed Count One, Section
841(b)(1)(A)’s sentencing enhancement would have still been
applicable to Bryant. Thus, by definition, the First Step Act’s
amendments to the Section 841(b)(1)(A) sentencing enhancement
24 Id. at 92 (emphasis added); see also id. at 93 (explaining that “the First Step
Act “does not require that an eligible defendant receive a plenary resentencing”).
We emphasized that Section 404(b) of the First Step Act “issues no directive to allow
re-litigation of other Guidelines issues—whether factual or legal—which are
unrelated to the retroactive application of the Fair Sentencing Act” on resentencing.
Id. at 91. Rather, the district court’s resentencing authority pursuant to the First Step
Act is “subject to the ‘as if’ clause – that is, to determine the impact of sections 2 and
3 of the Fair Sentencing Act.” Id. at 91.
25 As noted earlier, Section 2 of the Fair Sentencing Act modified the
threshold quantity of crack cocaine required to trigger the 10-year mandatory
minimum sentence under 21 U.S.C. § 841(b)(1)(A)(iii), increasing it from 50 grams
to 280 grams. See 124 Stat. at 2372.

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cannot fairly be described as “changes that flow from Sections 2 and 3
of the Fair Sentencing Act of 2010.”26 Rather, Section 401(a)’s changes
to the sentencing enhancement are better described as amendments
made by the First Step Act that are “unrelated to the retroactive
application of the Fair Sentencing Act.”27 Accordingly, the District
Court was not obligated to apply those changes to Bryant upon
resentencing.
In sum, the District Court did not err in concluding that Bryant
was not entitled to benefit from the First Step Act’s changes to the
sentencing enhancement of Section 841(b)(1)(A) when it resentenced
him.
III. CONCLUSION
We hold that Bryant does not qualify for relief afforded by
Section 401(a) of the First Step Act, which narrows the applicability of
the Section 841(b)(1)(A) sentencing enhancement. This is because (1)
the plain text of Section 401(c) limits the retroactive applicability of
Section 401(a) to defendants who committed offenses before the First
Step Act became law only if they did not yet have a sentence imposed
as of the date of enactment; and (2) Section 404(b) of the First Step Act
does not “entail a plenary resentencing” or “obligate a district court to
recalculate an eligible defendant’s Guidelines range, except for those
changes that flow from Sections 2 and 3 of the Fair Sentencing Act”
26 Moore, 975 F.3d at 86.
27 Id. at 91.

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when exercising discretionary resentencing authority pursuant to the
First Step Act.28
For the foregoing reasons, we AFFIRM the District Court’s
order dated March 13, 2020.
28 Id. at 92.

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