United States of America v. Elroy Brow

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2203
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UNITED STATES OF AMERICA
v.
ELROY BROW,
Appellant
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ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. No. 1-90-cr-00048-001)
District Judge: Honorable Wilma A. Lewis
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Argued December 8, 2022
Before: CHAGARES, Chief Judge, GREENAWAY, JR., and
FISHER, Circuit Judges
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(Opinion Filed: March 10, 2023)
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Matthew A. Campbell [Argued]
Federal Public Defender

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Office of the Federal Public Defender
Tunick Building
1336 Beltjen Road
St. Thomas, VI 00802
Counsel for Appellant
Delia L. Smith
United States Attorney
Office of the United States Attorney
5500 Veterans Drive
St. Thomas, VI 00802
Adam Sleeper [Argued]
Assistant United States Attorney
Office of the United States Attorney
5500 Veterans Drive
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellees
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OPINION OF THE COURT
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GREENAWAY, JR., Circuit Judge.
Elroy Brow appeals the District Court’s denial of his
First Step Act section 404(b) motion. Brow seeks a creative
means to lower his sentence. Although the incarcerative
portion of his sentence in this case is complete, he seeks a

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manner of relief through the First Step Act that will effect a
lowering of the incarcerative period of an unrelated,
consecutive sentence (for voluntary manslaughter) from
another federal court. Albeit intriguing, we choose to apply the
dictates of the First Step Act in the way that its language and
stated purpose is intended: to lower the incarcerative period of
only a covered offense.
I. BACKGROUND
Factual Background
In June 1990, Brow was convicted by a federal jury on
three counts: possession with intent to distribute cocaine,
possession with intent to distribute marijuana, and conspiracy
to possess with intent to distribute marijuana and cocaine. The
jury did not make any findings about drug quantity.
The Presentence Report (PSR) determined that Brow
was responsible for 492 grams of crack cocaine and 67 grams
of marijuana.1 On that basis, the PSR determined that Brow
was subject to a maximum term of life imprisonment and a
minimum term of ten years’ imprisonment on Counts One and
Three. The PSR also determined that Brow was subject to a
mandatory minimum term of five years of supervised release.
Brow had two prior convictions for third-degree assault
in the Virgin Islands Territorial Court and another prior
1 Earlier in the PSR, it suggested the canvas bag in which the
controlled substances were discovered in November 1989
contained 505 grams of crack cocaine and 73 grams of
marijuana.

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conviction for third-degree robbery in the District Court of the
Virgin Islands.2 The PSR found that all three convictions
constituted crimes of violence. Hence, Brow was determined a
career offender. Because Brow was a career offender and the
offense was punishable by a maximum term of life
imprisonment, the PSR determined that Brow’s criminal
history category was VI and his total offense level was 37.
Thus, the PSR determined that Brow’s Guidelines
imprisonment range was 360 months to life.
Brow’s sentencing hearing was held on August 21,
1990. His counsel conceded that he was a career offender and
that the career offender sentencing calculations were correct.
After hearing argument from counsel, the District Court
stated that it had “reviewed the presentence investigation
report thoroughly.” App. 102. It then determined that Brow’s
sentencing Guidelines range was 360 months to life and
sentenced him to 360 months’ imprisonment and 5 years of
supervised release.
In an unrelated matter, in the United States District
Court for the Northern District of Georgia (Georgia case),
Brow was convicted of voluntary manslaughter, in violation of
18 U.S.C. § 1112, United States v. Elroy Brow, 1:94-cr-92
(N.D. Ga. 1994). He was sentenced to ten years’ incarceration,
to “run consecutively to any and all sentences previously
imposed.” SA44. He has served more than 32 years of the
2 The PSR also revealed that Brow had a conviction for
possession of a dangerous weapon during a crime of violence,
which was charged in the same case as the robbery. The PSR
refers to these convictions as convictions for robbery and
assault.

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administratively combined 40 years of incarceration (30 years
here and 10 consecutive years in the Georgia case).
Procedural History
Brow moved for an unspecified reduction of his term of
incarceration and a reduction of his term of supervised release
to four years, pursuant to the First Step Act section 404(b). The
Government opposed that motion. The District Court rejected
the magistrate judge’s report and recommendation in favor of
the Appellant and denied the First Step Act motion.
The District Court denied the First Step Act motion for
several reasons. The District Court evaluated Brow’s career-
offender status, relying on this Court’s 2021 decision in United
States v. Murphy, 998 F.3d 549 (3d Cir. 2021), abrogated on
other grounds by United States v. Shields, 48 F.4th 183, 190-
92 (3d Cir. 2022), which required the District Court to
recalculate Brow’s current Guidelines range. In doing so, the
District Court concluded that, for sentencing purposes, Brow
remained a career offender because he had at least two prior
convictions for crimes of violence. As a result, the Guidelines
determination remained unchanged.
Finally, the District Court determined, after applying
the factors enumerated in 18 U.S.C. § 3553(a), that no sentence
reduction was appropriate. The District Court specifically
rejected Brow’s mitigation arguments about his age and
likelihood of recidivism and that his crime did not involve
violence or firearms.
Brow filed a timely Notice of Appeal seeking to
overturn the District Court’s Order.

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II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction over
this case pursuant to 48 U.S.C. § 1612 and 18 U.S.C. § 3231
and authority to consider reduction of the sentence pursuant to
section 404 of the First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194 and 18 U.S.C. § 3582(c)(1)(B).3 We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
Generally, we review a district court’s denial of a
sentence reduction under the First Step Act for abuse of
discretion. United States v. Easter, 975 F.3d 318, 322 (3d Cir.
2020) abrogated on other grounds by Shields, 48 F.4th at 190-
92. But the Court’s review is de novo when a district court’s
decision rests purely on a question of law. Murphy, 998 F.3d
at 554.
III. DISCUSSION
The First Step Act
A “court may not modify a term of imprisonment once
it has been imposed” unless “expressly permitted by statute.”
3 Although our opinion does not address whether 18 U.S.C. §
3582(c)(1)(B) or § 3582(c)(2) grant district courts jurisdiction
to decide First Step Act motions, the Supreme Court has
recently stated in dicta that § 3582(c)(1)(B) is “simply a
gateway provision that refers to whichever statute expressly
permits the sentencing modification.” Concepcion v. United
States, 142 S. Ct. 2389, 2402 n.5 (2022) (cleaned up).

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18 U.S.C. § 3582(c). The relevant statutes here are the Fair
Sentencing Act and the First Step Act.
In 2010, Congress enacted the Fair Sentencing Act, Pub.
L. No. 111-220, 124 Stat. 2372, which reduced the sentencing
disparity between crack cocaine and powder cocaine offenses
by increasing the drug quantity required to trigger mandatory
minimum sentences for crack cocaine offenses. See Dorsey v.
United States, 567 U.S. 260, 263-64, 269 (2012). But the Fair
Sentencing Act was not retroactive and applied only to
defendants who had been sentenced after August 3, 2010. Id.
at 273.
In 2018, the First Step Act, Pub. L. No. 115-391, 132
Stat. 5194 (“the First Step Act”), made the provisions of the
Fair Sentencing Act applicable to those defendants convicted
of “covered offenses” and sentenced before August 3, 2010.
See United States v. Jackson, 964 F.3d 197, 200 (3d Cir. 2020).
Section 404 of the First Step Act states:
(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–

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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.
First Step Act § 404, 132 Stat. at 5222.
Thus, under the language of the First Step Act, if a
criminal defendant is eligible for resentencing, the court has
the discretion—but is not required—to impose a reduced
sentence. See Shields, 48 F.4th at 189.
The dispute here hinges on whether the First Step Act
permits imposing a lesser term of imprisonment when the
incarcerative period of the covered sentence is complete. The
Government argues for the first time on appeal that Brow has
completed the incarcerative portion of his covered sentence
and is only being incarcerated for his conviction for voluntary
manslaughter in the unrelated Georgia case that is not covered
by the First Step Act.4 Accordingly, the First Step Act, the
4 Brow argues that the Government has “waived” this
argument. We disagree with that characterization. The
Government failed to raise this issue in the District Court and

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Government asserts, does not permit the Court to lower Brow’s
sentence to a lesser term of imprisonment than time served.
Brow also argues that while his sentences were issued
separately, they act as an undivided whole, and a reduction in
one component can result in credit elsewhere.
Statutory Interpretation of the First Step Act
Motions made under the First Step Act are authorized
by § 18 U.S.C. 3582(c)(1)(B). Concepcion, 142 S. Ct. at 2402
n.5 (Section 3582(c)(1)(B) is “simply a gateway provision that
refers to whichever statute expressly permits the sentencing
modification”) (cleaned up). Section § 3582(c)(1)(B) “looks to
other statutes to authorize and limit any modification
proceedings under it.” Murphy, 998 F.3d at 558.
Turning to the statute, we start, as we always do, with
the statutory language. Bonkowski v. Oberg Indus., Inc., 787
F.3d 190, 199 (3d Cir. 2015). A court considers the language
of a statute in its natural and ordinary signification and if there
is no ambiguity or obscurity in its language, there will usually
nothing in the record supports the notion that it intentionally
relinquished the issue. See United States v. Olano, 507 U.S.
725, 733 (1993) (“Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is ‘the intentional relinquishment or abandonment of a
known right.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). As a result, the Government forfeited this issue. But
we may, and here do, “affirm on any ground supported by the
record as long as the appellee did not waive—as opposed to
forfeit—the issue.” TD Bank N.A. v. Hill, 928 F.3d 259, 276
n.9 (3d Cir. 2019).

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be no need to look elsewhere to determine intent. See
Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496-97 (2022).
The paraphrased form of section 404(b), already quoted above,
states 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 . . .
were in effect at the time the covered offense was committed.”
First Step Act § 404, 132 Stat. at 5222.
Thus, the plain language of the First Step Act permits
modification of a specific sentence under specific
circumstances; the Act “does not give district courts carte
blanche to modify terms of imprisonment other than those
imposed for ‘covered offenses.’” United States v. Martin, 974
F.3d 124, 137 (2d Cir. 2020); see also Concepcion, 142 S. Ct.
at 2396 (The First Step Act “allows a district court to impose a
reduced sentence ‘as if’ the revised penalties for crack cocaine
enacted in the Fair Sentencing Act of 2010 were in effect at the
time the offense was committed.”).
Under the First Step Act, “covered offenses” are those
for which the statutory penalties were altered by sections 2 or
3 of the Fair Sentencing Act. § 404(a), 132 Stat. at 5222; see §§
2-3, 124 Stat. at 2372. “The explicit reference to sections 2 or
3 of the Fair Sentencing Act demonstrates that the First Step
Act permits a sentencing reduction only to the extent that
sections 2 or 3 of the Fair Sentencing Act would apply.”
Martin, 974 F.3d at 138; see also Kirtz v. Trans Union LLC, 46
F.4th 159, 171 (3d Cir. 2022) (stating that where a statute
contains an express definition, that definition must be applied
for all purposes save for some extraordinary reason). The First
Step Act thus authorizes a court to only alter sentences for
“covered offenses.” See Dillon v. United States, 560 U.S. 817,
825 (2010) (interpreting the language “may reduce the term of

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imprisonment” in § 3582(c)(2) not to “authorize a sentencing
or resentencing proceeding,” but providing for a “modification
of a term of imprisonment”) (cleaned up). As Martin states,
“section 404(b)’s text, along with its narrow scope, shows that
Congress ‘intended to authorize only a limited alteration to an
otherwise final sentence . . . .’” 974 F.3d at 138 (quoting Dillon,
560 U.S. at 826).
The text of section 404(b) of the First Step Act permits
only the “imposition of a reduced sentence,” which we cannot
then extend to reducing a period of incarceration that has
already been completed. See Martin, 974 F.3d at 138 (cleaned
up). The phrase “impose a reduced sentence” is not defined
within the statute, so we construe it “in accordance with [its]
ordinary or natural meaning.” Bonkowski, 787 F.3d at 199
(quoting FDIC v. Meyer, 510 U.S. 471, 476 (1994)) (cleaned
up). The ordinary or natural meaning may be determined by
looking to dictionary definitions while keeping in mind the
whole statutory text, the purpose, and context of the statute,
and relevant precedent. Id. at 199-200. To impose something
means “[t]o levy or exact,” Impose, BLACK’S LAW
DICTIONARY (11th ed. 2019), or to “establish or apply by
authority,” see Impose, Merriam-Webster.com,
https://www.merriamwebster.com/dictionary/impose (last
visited Dec. 9, 2022); see also Martin, 974 F.3d at 138 (same).
As Martin makes clear, “[i]t makes little sense to bring about,
exact, establish, or apply a reduced term of imprisonment
where the term of imprisonment to be reduced has been
completed.” Id.
Interestingly, Brow suggests that the Court can still
impose a reduced sentence because the Bureau of Prisons
(BOP) administratively aggregated his sentence. But this is not
the case. The BOP’s administrative aggregation of Brow’s

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sentence does not affect our judicial authority. We lack the
authority to reduce Brow’s manslaughter sentence. Id. at 138-
39. The First Step Act does not grant it to us, and we cannot
simply extend what powers we are granted to a separate,
noncovered offense. Id.; see also Gov’t of V.I. v. Knight, 989
F.2d 619, 633 (3d Cir. 1993) (generally, “if the statutory
language is clear, a court must give it effect” and cannot act
contrary to what the text of the statute allows). There is also no
indication from either the First Step Act or the Fair Sentencing
Act that Congress intended to use this statute in a novel,
unconventional manner as to allow the result suggested by
Brow.5 See Hanif v. Att’y Gen. of U.S., 694 F.3d 479, 483 (3d
Cir. 2012) (“If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the
5 The law was meant to address the disparity between powder
and crack cocaine sentencing not serve as a vehicle to lower
other, non-covered offenses. See, e.g., 164 Cong. Rec. S7764
(Sen. Booker) (“The problem was the change [in the disparity
between powder and crack cocaine sentencing addressed in the
Fair Sentencing Act] wasn't retroactively applied. . . . We never
made this change retroactive. . . . Making this fix in the bill
alone will mean that thousands of Americans who have more
than served their time will become eligible for release . . .
.”); id. at S7774 (Sen. Feinstein) (“Congress addressed [the
disparity between crack and powder cocaine sentencing] in
2010, when the Fair Sentencing Act became law. . . .
Unfortunately, this new law did not apply retroactively, and so
there are still people serving sentences under the 100-1
standard. The bill before us today fixes that and finally makes
the Fair Sentencing Act retroactive so that people sentenced
under the old standard can ask to be resentenced under the new
one.”).

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precise question at issue, that intention is the law and must be
given effect.”) (cleaned up); see also Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring).
Brow was sentenced to thirty years of incarceration in
this case, and was sentenced to ten years of incarceration for
voluntary manslaughter in another, unrelated case. Brow has
been incarcerated on those sentences for more than thirty years,
and the Parties do not dispute that Brow has completed his term
of incarceration on his convictions here but not his five-year
term of supervised release. The Parties also agree that Brow is
now serving the term of incarceration on the voluntary
manslaughter case. Hence, the only thing keeping Brow in
prison is his unrelated sentence for voluntary manslaughter.
The crime for which Brow remains incarcerated is not a
covered offense under the First Step Act. Nor is there any
express authorization in the First Step Act—under 18 U.S.C. §
3582(c)(1)(B)—for a district court to reduce the terms of
incarceration for that sentence or to reduce a sentence on a
covered offense that has already been served.
IV. CONCLUSION
Accordingly, we join the Second Circuit in holding that
the First Step Act does not permit district courts to impose a
reduced sentence for covered offenses where those sentences
have been fully served.6 See Martin, 974 F.3d at 140. We will
6 The Parties agree that whether Brow is entitled to a reduced
sentence is the only question before the Court. Thus, we do not
address Brow’s arguments about the District Court’s error in
denying his request for a reduction of his supervised release,
Brow’s arguments that he is not a career offender, or Brow’s

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affirm the District Court’s denial of Brow’s First Step Act
motion.
arguments that the District Court abused its discretion when it
determined that the 18 U.S.C. § 3553(a) factors did not warrant
a sentence reduction.

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