No. ________
`
`
`
`IN THE
`Supreme Court of the United States
`_____________________
`
`SHANNON L. COTTON,
`Petitioner,
`
`v.
`
`UNITED STATES OF AMERICA,
`Respondent.
`
`_____________________
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Seventh Circuit
`_____________________
`
`PETITION FOR A WRIT OF CERTIORARI
`_____________________
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`THOMAS W. PATTON
`Federal Public Defender
`
`THOMAS A. DRYSDALE
`Assistant Federal Public Defender
`Counsel of Record
`OFFICE OF THE FEDERAL PUBLIC DEFENDER
`300 W. Main Street
`Urbana, Illinois 61801
`Phone: (217) 373-0666
`Email: thomas_drysdale@fd.org
`Counsel for Petitioner
`
`
`
`

`

`QUESTION PRESENTED
`
`This Court has consistently held “that the ordinary meaning of the language
`
`chosen by Congress accurately expresses the legislative purpose.” Microsoft Corp. v.
`
`i4i Ltd. Partnership, 564 U.S. 91, 101 (2011). It has repeatedly cautioned against
`
`rewriting statutes, even when Congress’s plain language yields objectionable or
`
`absurd results. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982); Lamie
`
`v. United States Trustee, 540 U.S. 526, 536 (2004).The language of 18 U.S.C.
`
`§ 3583(e)(3) is clear and unambiguous. When a criminal defendant’s term of
`
`supervised release is revoked, the statutory maximum sentence that may be
`
`imposed upon revocation is determined by what class of felony the defendant’s
`
`original “offense . . . is.” 18 U.S.C. §3583(e)(3).
`
`In 2007, Shannon Cotton pled guilty to what was, at the time, a Class A
`
`felony for distribution of five grams or more of crack cocaine in violation of 21 U.S.C.
`
`§§ 841(a) and (b)(1)(B). In 2010, Congress enacted the Fair Sentencing Act, which
`
`altered the amount of crack cocaine needed to trigger 21 U.S.C. §841(b)(1)(B),
`
`increasing the threshold from five (5) grams to twenty-eight (28) grams. In 2018,
`
`Congress passed the First Step Act, which made the Fair Sentencing Act
`
`retroactively applicable at courts’ discretion. Under Section 404(b) of the First Step
`
`Act, Mr. Cotton’s sentence was reduced from 262 months to 188 months.
`
`After being released from custody, Mr. Cotton violated the terms of his
`
`supervised release in 2022. In 2023, he was sentenced to two-years in prison by the
`
`district court under 18 U.S.C. § 3583(e)(3).
`
`
`
`

`

`The question presented is:
`
`Whether the plain language of 18 U.S.C. § 3583(e)(3) requires a district court
`
`to determine the current classification of a defendant’s felony by looking to what his
`
`“offense is” at the time of revocation or whether the court must look to what the
`
`“conviction is” or “offense was” at the time of the original judgment.
`
`
`
`
`
`ii
`
`

`

`LIST OF PARTIES
`
`All parties appear in the caption of the case on the cover page.
`
`DIRECTLY RELATED CASES
`
`This case arises from the following proceedings:
`
`United States of America v. Shannon L. Cotton, 108 F.4th 987 (7th Cir. 2024)
`(reversing the district court’s holding that Cotton’s offense “is” a class C felony)
`
`United States of America v. Shannon L. Cotton, Criminal No. 07-cr-20019-MMM-
`EIL (C.D. Ill. February 27, 2023) (district court holding that Cotton offense “is” a
`class C felony).
`
`
`
`There are no other proceedings in state or federal trial or appellate courts, or in this
`Court, directly related to this case within the meaning of this Court’s Rule
`14.1(b)(iii).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`
`
`
`
`

`

`TABLE OF CONTENTS
`
`
`QUESTION PRESENTED ............................................................................................. i
`
`LIST OF PARTIES ....................................................................................................... iii
`
`DIRECTLY RELATED CASES .................................................................................... iii
`
`TABLE OF AUTHORITIES CITED ............................................................................ vi
`
`PETITION FOR WRIT OF CERTIORARI ................................................................... 1
`
`DECISIONS BELOW .................................................................................................... 1
`
`JURISDICTION ............................................................................................................ 1
`
`STATUTORY PROVISIONS INVOLVED .................................................................... 1
`
`I.
`
`Section 841, Title 21 of the United States Code (2007) ..................... 1
`
`II.
`
`18 U.S.C. § 3559 .................................................................................. 2
`
`III. The Fair Sentencing Act of 2010 ........................................................ 3
`
`IV. The First Step Act of 2018 .................................................................. 3
`
`V.
`
`Section 841, Title 21 of the United States Code ................................ 4
`
`VI.
`
`18 U.S.C. § 3583(e) .............................................................................. 5
`
`INTRODUCTION .......................................................................................................... 5
`
`STATEMENT OF THE CASE ...................................................................................... 7
`
`I.
`
`Statutory Background ........................................................................ 7
`
`II.
`
`Proceedings Below ............................................................................ 11
`
`REASONS FOR GRANTING THE PETITION .......................................................... 16
`
`I.
`
`The Seventh Circuit has rewritten 18 U.S.C.
`§ 3583(e)(3) in a way that directly conflicts with this
`Court’s holding in Johnson v. United States, 529 U.S.
`694 (2000) and frustrates Congress’s intent in passing
`the First Step Act. ............................................................................. 18
`
`A.
`
`The Seventh Circuit rewrote 18 U.S.C.
`§ 3583(e)(3). ............................................................................ 18
`
`iv
`
`

`

`B.
`
`C.
`
`The Seventh Circuit’s opinion conflicts with
`Johnson v. United States, 529 U.S. 694 (2000). .................... 20
`
`The Seventh Circuit’s opinion frustrates
`Congressional purpose in passing the First
`Step Act. .................................................................................. 21
`
`II.
`
`The question presented warrants review......................................... 24
`
`III. This is an ideal vehicle. .................................................................... 25
`
`IV. The decision below is incorrect. ........................................................ 26
`
`CONCLUSION ............................................................................................................ 29
`
`
`
`
`
`INDEX TO APPENDIX
`
`Appendix A Decision of the U.S. Court of Appeals for the
`Seventh Circuit ................................................................................. 1a
`
`
`Appendix B U.S. Court of Appeals for the Seventh Circuit’s
`denial of petition for panel rehearing or reheaing en
`banc ................................................................................................. 21a
`
`
`Appendix C
`
`
`
`
`
`
`
`Transcript of the U.S. District Court for the Central
`District of Illinois’ oral ruling on the applicable
`statutory maximum sentence on March 7, 2023 ......................... ..22a
`
`
`
`v
`
`

`

`TABLE OF AUTHORITIES CITED
`
`Cases
`
`Carachuri-Rosendo v. Holder, 560 U.S. at 563 (2010) ............................................... 19
`
`Dorsey v. United States, 567 U.S. 260 (2012) ..................................................... passim
`
`Gamble v. United States, 139 S. Ct. 1960 (2019) .................................................. 17, 19
`
`Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) ............................................. i
`
`Hughey v. United States, 495 U.S. 411 (1990) ............................................................ 17
`
`Johnson v. United States, 529 U.S. 694 (2000) ................................................... passim
`
`Kimbrough v. United States, 552 U.S. 85 (2007) .......................................................... 8
`
`Lamie v. United States Trustee, 540 U.S. 526 (2004) .................................................... i
`
`McNeil v. United States, 563 U.S. 816 (2011) ............................................................. 28
`
`Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91 (2011) .................................... i, 19
`
`Pulsifer v. United States, 601 U.S. 124 (2024) ............................................................ 22
`
`Snyder v. United States, 603 U.S. 1 (2024) ................................................................. 18
`
`United States v. Baker, No. 21-2182, 2022 WL 523084
`(7th Cir. Feb. 22, 2022) ............................................................................................ 23
`
`United States v. Brit, 966 F.3d 257 (3d Cir. 2020) ..................................................... 25
`
`United States v. Corner, 967 F.3d 662 (7th Cir. 2020) ............................................... 28
`
`United States v. Cotton, 108 F.4th 987 (7th Cir. 2024) ...................................... passim
`
`United States v. Cotton, Criminal No. 07-cr-20019
`(C.D. Ill. 2007) .................................................................................................. passim
`
`United States v. Fisher, 635 F.3d 336 (7th Cir. 2011) ................................................ 24
`
`United States v. Fowowe, 1 F.4th 522 (7th Cir. 2021) .......................................... 22, 23
`
`United States v. Jones, No. 22-30480, 2023 WL 6458641
`(5th Cir. Oct. 4, 2023) .............................................................................................. 23
`
`United States v. Pace, 48 F.4th 741 (7th Cir. 2022) ................................................... 28
`
`vi
`
`

`

`United States v. Perkins, No. 21-1421, 2021 WL 515800
`(7th Cir. Nov. 5, 2021).............................................................................................. 23
`
`United States v. Sanders, 909 F.3d 895 (7th Cir. 2018) ............................................. 21
`
`United States v. Venable, 943 F.3d 187 (4th Cir. 2019) ............................................. 23
`
`
`
`Statutes
`
`18 U.S.C. § 924(e)......................................................................................................... 28
`
`18 U.S.C. § 3553(a) .......................................................................................... 16, 25, 26
`
`18 U.S.C. § 3559 ........................................................................................... 2, 10, 12, 20
`
`18 U.S.C. § 3583(e)(3) .......................................................................................... passim
`
`21 U.S.C. § 841 ..................................................................................................... passim
`
`21 U.S.C. § 851 ....................................................................................................... 11, 12
`
`28 U.S.C. § 1254(1) ........................................................................................................ 1
`
`
`
`Other Authorities
`
`Conviction, Black's Law Dictionary (12th ed. 2024) .................................................. 19
`
`Fair Sentencing Act, Pub. L. 111-220,
`124 Stat. 2372 (Aug. 3, 2010) .......................................................................... passim
`
`First Step Act of 2018, Pub. L. 115-391,
`132 Stat. 5194 (Dec. 21, 2018) ......................................................................... passim
`
`Offense, Black's Law Dictionary (12th ed. 2024) ........................................................ 19
`
`U.S.S.G. § 4B1.1(b) ...................................................................................................... 12
`
`U.S.S.G. § 7B1.1(a)(1) .................................................................................................. 14
`
`U.S.S.G. § 7B1.4(a) ...................................................................................................... 13
`
`vii
`
`

`

`
`
`PETITION FOR WRIT OF CERTIORARI
`
`Petitioner Shannon Cotton respectfully petitions this Court for a writ of
`
`certiorari to review the judgment of the United States Court of Appeals for the
`
`Seventh Circuit in this case.
`
`DECISIONS BELOW
`
`The Seventh Circuit’s decision is published at 108 F.4th 987 and is included
`
`as Appendix A. The Seventh Circuit denied Mr. Cotton’s petition for rearing on
`
`October 7, 2024. That decision is included as Appendix B. The United States
`
`District Court for the Central District of Illinois did not issue a written order. The
`
`transcript of the district court’s oral ruling is included as Appendix C.
`
`JURISDICTION
`
`The Seventh Circuit entered judgment on July 26, 2024. Pet. App. 1a. A
`
`petition for rehearing was filed on August 23, 2024, which the Seventh Circuit
`
`denied on October 7, 2024. Pet. App. 21. This petition is filed within 90 days of the
`
`Seventh Circuit’s October 7, 2024, denial of rehearing. This Court has jurisdiction
`
`under 28 U.S.C. § 1254(1).
`
`STATUTORY PROVISIONS INVOLVED
`
`I.
`
`Section 841, Title 21 of the United States Code (2007)
`
`In 2007, Title 21 U.S.C. § 841(b)(1)(B) provided in relevant part:
`
`(b) Except as otherwise provided in section 859, 860, or 861 of this title,
`any person who violates subsection (a) of this section shall be sentenced
`as follows:
`
`
`
`
`

`

`(1)(B) In the case of a violation of subsection (a) of this section
`involving—
`
`
`(iii) 5 grams or more of a mixture or substance described in
`clause (ii) which contains cocaine base;
`
`such person shall be sentenced to a term of imprisonment which may
`not be less than 5 years and not more than 40 years and if death or
`serious bodily injury results from the use of such substance shall be not
`less than 20 years or more than life, a fine not to exceed the greater of
`that authorized in accordance with the provisions of Title 18, or
`$2,000,000 if the defendant is an individual or $5,000,000 if the
`defendant is other than an individual, or both. If any person commits
`such a violation after a prior conviction for a felony drug offense has
`become final, such person shall be sentenced to a term of imprisonment
`which may not be less than 10 years and not more than life
`imprisonment and if death or serious bodily injury results from the use
`of such substance shall be sentenced to life imprisonment, a fine not to
`exceed the greater of twice that authorized in accordance with the
`provisions of Title 18, or $4,000,000 if the defendant is an individual or
`$10,000,000 if the defendant is other than an individual, or both.
`Notwithstanding section 3583 of Title 18, any sentence imposed under
`this subparagraph shall, in the absence of such a prior conviction,
`include a term of supervised release of at least 4 years in addition to
`such term of imprisonment and shall, if there was such a prior
`conviction, include a term of supervised release of at least 8 years in
`addition to such term of imprisonment. Notwithstanding any other
`provision of law, the court shall not place on probation or suspend the
`sentence of any person sentenced under this subparagraph. No person
`sentenced under this subparagraph shall be eligible for parole during
`the term of imprisonment imposed therein.
`
`18 U.S.C. § 3559
`
`Title 18 U.S.C. § 3559 provides in relevant part:
`
`
`
`An offense that is not specifically classified by a letter
`grade in the section defining, is classified if the maximum
`term of imprisonment authorized is -
`
`(1) Life imprisonment, or if the maximum penalty is
`
`death, as a Class A felony;
`
`(2) Twenty-five years or more, as a Class B felony;
`
`2
`
`II.
`
`

`

`
`
`
`
`(3) Less than twenty-five years but ten or more years,
`
`as a Class C felony;
`
`(4) Less than 10 years but five or more years, as a
` Class D felony;
`
`
`
`
`III. The Fair Sentencing Act of 2010
`
`Entitled “Cocaine Sentencing Disparity Reduction,” Section 2 of the Fair
`
`Sentencing Act of 2010 provides, in relevant part:
`
`(a) CSA.—Section 401(b)(1) of the Controlled Substances Act (21 U.S.C.
`841(b)(1)) is amended—
`
`
`(1) in subparagraph (A)(iii), by striking ‘‘50 grams’’ and inserting
`‘‘280 grams’’; and
`
`(2) in subparagraph (B)(iii), by striking ‘‘5 grams’’ and inserting
`‘‘28 grams.”
`
`
`Pub. L. No. 111-220, 124 Stat. 2372, § 2(a).
`
`IV. The First Step Act of 2018
`
`Entitled “Application of the Fair Sentencing Act,” Section 404 of the First Step
`
`Act of 2018 provides in full:
`
`(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.
`
`that
`court
`(b)DEFENDANTS PREVIOUSLY SENTENCED.—A
`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.
`
`
`3
`
`

`

`(b) 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
`2 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.
`
`Pub L. No. 115-391, 132 Stat. 5194, § 404.
`
`V.
`
`Section 841, Title 21 of the United States Code
`
`As amended by the Fair Sentencing Act of 2010, 21 U.S.C. § 841 provides, in
`
`pertinent part:
`
`(a) Unlawful acts Except as authorized by this subchapter, it shall be
`unlawful for any person knowingly or intentionally—
`
`
`(1) to manufacture, distribute, or dispense, or possess with intent
`to manufacture, distribute, or dispense, a controlled
`substance;
`
`
`* * *
`
`(b) Penalties Except as otherwise provided in section 849, 859, 860, or
`861 of this title, any person who violates subsection (a) of this section
`shall be sentenced as follows:
`
`
`* * *
`
`(1)(B) In the case of a violation of subsection (a) of this section
`involving—
`
`
`* * *
`(iii) 28 grams or more of a mixture or substance described
`in clause (ii) [i.e., cocaine] which contains cocaine base;
`
`
`
`* * *
`
`4
`
`

`

`such person shall be sentenced to a term of imprisonment which may
`not be less than 5 years and not more than 40 years and if death or
`serious bodily injury results from the use of such substance shall be not
`less than 20 years or more than life . . . If any person commits such a
`violation after a prior conviction for a serious drug felony or serious
`violent felony has become final, such person shall be sentenced to a term
`of imprisonment which may not be less than 10 years and not more than
`life imprisonment and if death or serious bodily injury results from the
`use of such substance shall be sentenced to life imprisonment . . .
`Notwithstanding section 3583 of title 18, any sentence imposed under
`this subparagraph shall, in the absence of such a prior conviction,
`include a term of supervised release of at least 4 years in addition to
`such term of imprisonment and shall, if there was such a prior
`conviction, include a term of supervised release of at least 8 years in
`addition to such term of imprisonment . . . .
`
`18 U.S.C. § 3583(e)
`
`VI.
`
`Title 18 U.S.C. § 3583(e)(3) provides in relevant part 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 supervised release
`... except that a defendant whose term is revoked under this paragraph
`may not be required to serve on any such revocation 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.
`
`
`
`INTRODUCTION
`
`Enacted with overwhelming bipartisan support, the First Step Act of 2018
`
`sought to make the criminal justice system a bit more just. Section 404 was a
`
`centerpiece provision. It made Section 2 of the Fair Sentencing Act of 2010
`
`retroactive. Section 2 reduced the infamous 100-to-1 crack-to-powder cocaine
`
`sentencing disparity by raising the amount of crack determining the statutory
`
`5
`
`

`

`penalties in 21 U.S.C. § 841(b)(1). For the top-tier penalties in § 841(b)(1)(A)(iii),
`
`Section 2 increased the threshold from 50 to 280 grams. And, for the mid-tier
`
`penalties in § 841(b)(1)(B)(iii), Section 2 increased the threshold from 5 to 28 grams.
`
`Those statutory penalties matter not only for custodial sentencing, but also
`
`for anyone whose sentence includes a term of supervised release. Pursuant to 18
`
`U.S.C. § 3583(e)(3), the maximum custodial sentence that may be imposed upon
`
`revocation of supervised release depends on the defendant’s felony classification.
`
`Because Section 3583(e) speaks in terms of offenses (and not convictions) and is
`
`phrased in the present tense, the operative question when determining a
`
`defendant’s maximum sentencing exposure upon a revocation is what their offense
`
`currently is at the time of their revocation proceedings
`
`But that is not what the Seventh Circuit held. Bypassing the plain language
`
`of 18 U.S.C. § 3583(e)(3) and the purpose and intent of the First Step Act and Fair
`
`Sentencing Act, the Seventh Circuit rewrote Section 3583(e)(3) and held that the
`
`statutory maximum sentence upon revocation is determined by what the
`
`“conviction” is. But the word “conviction” does not appear in 18 U.S.C. § 3583(e).
`
`The statute requires courts to set the statutory maximum based on what the
`
`“offense that resulted in the term of supervised release is . . .” 18 U.S.C. § 3583(e).
`
`The Seventh Circuit’s holding conflicts with the plain language of 18 U.S.C.
`
`§ 3583(e)(3) and results in an impermissible rewrite of Congressional language. It is
`
`also in clear conflict with this Court’s holding in Johnson v. United States, 529 U.S.
`
`694 (2000), which held that “post revocation proceedings relate to the original
`
`6
`
`

`

`“offense,” not the original conviction. 529 U.S. at 701. The Seventh Circuit has
`
`thwarted Congress’s intent in passing the First Step Act, and turned back the clock
`
`on landmark, bipartisan legislation designed to reduce the sentencing disparities in
`
`crack cocaine cases. See Dorsey v. United States, 567 U.S. 260, 276 (2012).
`
`This is an ideal vehicle for this Court to intervene. Mr. Cotton fully preserved
`
`his statutory maximum argument in the district court and on appeal. The district
`
`court agreed that Mr. Cotton’s interpretation of 18 U.S.C. § 3583(e)(3) was correct.
`
`And the Seventh Circuit reversed on the sole ground that the statutory maximum
`
`term of imprisonment under 18 U.S.C. § 3583(e)(3) is determined not by what the
`
`“offense is,” but by what the “conviction is.” Mr. Cotton is precisely the type of
`
`person that Congress sought to help when it amended the crack-cocaine penalties
`
`with the Fair Sentencing Act and then made those changes retroactive through the
`
`First Step Act. This Court should grant review to ensure that defendants like Mr.
`
`Cotton are receiving the remedial benefits that Congress intended.
`
`STATEMENT OF THE CASE
`
`I.
`
`Statutory Background
`
`1.
`
`In the Anti-Drug Abuse Act of 1986, Congress enacted criminal
`
`prohibitions and penalties for various drug offenses, including those involving crack
`
`and powder cocaine. Those prohibitions and penalties are codified at 21 U.S.C.
`
`§ 841.
`
`Entitled “Unlawful Acts,” § 841(a)(1) prohibits any person from knowingly or
`
`intentionally manufacturing, distributing, dispensing, or possessing with intent to
`
`manufacture, distribute, or dispense a “controlled substance.” Entitled “Penalties,”
`
`7
`
`

`

`§ 841(b) prescribes three tiers of sentencing ranges for “any person who violates
`
`subsection (a).” These tiers depend on the type and weight of the drug. Under the
`
`1986 Act, there was a 100-to-1 disparity between crack and powder cocaine. See
`
`Kimbrough v. United States, 552 U.S. 85, 95–96 (2007).
`
`Section 841(b)(1)(A) prescribed an unenhanced statutory range of 10-years-to-
`
`life for crack offenses involving 50 grams of more and powder offenses involving
`
`5,000 grams or more. Section 841(b)(1)(B) prescribed an unenhanced statutory
`
`range of 5-to-40 years for crack offenses involving 5 grams or more and powder
`
`offenses involving 50 grams of more. Section 841(b)(1)(C) served as a residual
`
`provision, prescribing an unenhanced statutory range of 0-to-20 years for all
`
`offenses, “except as provided in subparagraphs (A), (B),” and another provision not
`
`relevant here.
`
`2.
`
`“During the next two decades, the [Sentencing] Commission and others
`
`in the law enforcement community strongly criticized Congress’ decision to set the
`
`crack-to-powder mandatory minimum ratio at 100-to-1.” Dorsey, 567 U.S. at 268.
`
`“The Commission issued four separate reports telling Congress that the ratio was
`
`too high and unjustified because, for example, research showed the relative harm
`
`between crack and powder cocaine less severe than 100-to-1, because sentences
`
`embodying that ratio could not achieve the Sentencing Reform Act’s ‘uniformity’
`
`goal of treating like offenders alike, because they could not achieve the
`
`‘proportionality’ goal of treating different offenders (e.g., major drug traffickers and
`
`low-level dealers) differently, and because the public had come to understand
`
`8
`
`

`

`sentences embodying the 100-to-1 ratio as reflecting unjustified race-based
`
`differences.” Id. Ultimately, the Sentencing Commission “asked Congress for new
`
`legislation embodying a lower crack-to-powder ratio.” Id. at 269.
`
`“In 2010, Congress accepted the Commission’s recommendations and enacted
`
`the Fair Sentencing Act into law.” Id. Section 2(a) of the Fair Sentencing Act
`
`amended the text of §§ 841(b)(1)(A)(iii) and (b)(1)(B)(iii). Specifically, Section 2(a)
`
`“increased the drug amounts triggering mandatory minimums for crack trafficking
`
`offenses from 5 grams to 28 grams in respect to the 5-year minimum [in
`
`§ 841(b)(1)(B)(iii)] and from 50 grams to 280 grams in respect to the 10-year
`
`minimum” in § 841(b)(1)(A)(iii). Id.; see Pub. L. No. 111-220, 124 Stat. 2372, § 2(a).
`
`“The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18-to-
`
`1.” Dorsey, 567 U.S. at 269. However, these amendments applied only to those
`
`sentenced after their effective date of August 3, 2010. Id. at 264, 281.
`
`3.
`
`Enacted with overwhelming bipartisan support, Section 404 of the
`
`First Step Act sought to remedy that injustice. Pub. L. No. 115-391, 132 Stat. 5194.
`
`It did so by making the Fair Sentencing Act retroactive. Specifically, Section 404(b)
`
`provides that a district “court that imposed a sentence for a covered offense may . . .
`
`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) (emphasis
`
`added; internal citation omitted). Thus, eligibility for relief is keyed to a “covered
`
`offense.” In Section 404(a), Congress defined that term to “mean[ ] a violation of a
`
`Federal criminal statute, the statutory penalties for which were modified by section
`
`9
`
`

`

`2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3,
`
`2010.”
`
`4.
`
`In conjunction with the statutory maximum sentence that applies for a
`
`crack-cocaine offense, 18 U.S.C. § 3559 classifies offenses as felonies or
`
`misdemeanors. Any offense that has a statutory maximum penalty of less than
`
`twenty-five years, but ten or more years is a Class C felony. 18 U.S.C. § 3559(a)(3).
`
`If the offense has a maximum sentence of twenty-five years or more, it is a Class B
`
`felony. Id. at (a)(2). If the statutory maximum sentence is life imprisonment or
`
`death, the offense is a Class A felony. Id. at (a)(1).
`
`5.
`
`The statutory maximum sentence and subsequent felony classification
`
`control not only a defendant’s penalty at sentencing, but also the statutory
`
`maximum penalty that a defendant can face if their supervised release is revoked
`
`following their release from custody. Pursuant to 18 U.S.C. § 3583(e)(3), if a
`
`defendant violates their conditions of supervised release, the district court may
`
`revoke that supervision and sentence them to a term of imprisonment. The
`
`statutory maximum term that the district court can impose is controlled by the
`
`felony classification of the offense at the time of revocation. If the offense that the
`
`defendant is on supervised release for is a Class A felony, the court can impose up to
`
`five years in custody. 18 U.S.C. § 3583(e)(3). If the offense that resulted in the term
`
`of supervised release is a Class B felony, the statutory maximum penalty is three
`
`years’ imprisonment. Id. Finally, if the offense is a class C or D felony, the statutory
`
`maximum penalty upon revocation of supervision is two years. Id. The offense
`
`10
`
`

`

`classification at the time of the revocation directly affects the maximum sentence
`
`that can be imposed.
`
`II.
`
`Proceedings Below
`
`1.
`
`On February 8, 2007, a two-count indictment was filed in the U.S.
`
`District Court against Mr. Cotton. See United States v. Cotton, Criminal No. 07-cr-
`
`20019, R. 6 (C.D. Ill. 2007). Count 1 charged Mr. Cotton with distribution of five
`
`grams or more of crack cocaine which, at the time, was a violation of 21 U.S.C.
`
`§§ 841(a)(1) & (b)(1)(B). Id. Count 2 charged Mr. Cotton with possession with the
`
`intent to distribute the same amount of crack-cocaine in violation of the same
`
`statutes. Id. On August 20, 2007, Mr. Cotton pled guilty to both counts. See Cotton,
`
`No. 07-cr-20019, R. 17, PSR ¶ 4.
`
`On March 19, 2007, the government filed notice pursuant to 21 U.S.C. § 851
`
`that it would seek an enhanced statutory sentence. PSR ¶ 2. Specifically, the
`
`government’s Section 851 notice was based on two prior Illinois convictions for
`
`possession with intent to deliver less than 15 grams of cocaine and delivery of less
`
`than a gram of cocaine, neither of which should have been used to enhance Mr.
`
`Cotton’s statutory penalties. Cotton, 07-cr-20019, R. 7; PSR at ¶ 29; id. at ¶ 30.
`
`However, because of the erroneous Section 851 notice based on, at most, 15 grams of
`
`cocaine, Mr. Cotton faced 10 years to life imprisonment at the time. PSR ¶ 65; 21
`
`U.S.C. § 841(b)(1)(B) (2006). Because Mr. Cotton faced a statutory maximum term
`
`of life in prison, his offenses were Class A felonies in 2007, prior to the Fair
`
`Sentencing Act. See 18 U.S.C. § 3559(a)(1).
`
`11
`
`

`

`
`
`Mr. Cotton’s guideline range and sentence were based primarily on his past,
`
`rather than his current offense. This is because the two prior Illinois convictions for,
`
`at most, 15 grams of cocaine, deemed him a career offender. Meaning, Mr. Cotton’s
`
`guideline range dramatically increased to 262 to 327 months’ imprisonment based
`
`on two low-level Illinois drug convictions. PSR ¶ 66. This guideline range was
`
`based, in part, on the government’s decision to use Mr. Cotton’s previous convictions
`
`to raise his statutory mandatory minimum to ten years and his statutory maximum
`
`to life imprisonment. Had the government used its discretion not to file the invalid
`
`Section 851 notice, the guideline range under the career offender guideline would
`
`have been 188 to 235 months. See U.S.S.G. § 4B1.1(b).
`
`
`
`On November 20, 2007, Mr. Cotton was sentenced to 262 months’
`
`imprisonment to be followed by an 8-year enhanced term of supervised release.
`
`Cotton, 07-cr-20019, R. 20 (C.D. Ill. 2007).
`
`2.
`
`For the next 11 years Shannon Cotton would sit in federal prison
`
`assuming that is where he