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Tenth Circuit Joins Other Circuits, Holding Federal Offense of Conviction, Not Underlying Conduct, Determines First Step Act Eligibility

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that a district court is authorized to correct an erroneous career offender enhancement when a defendant qualifies for relief under the First Step Act, joining other circuits which have held the same.

The appeal came after Wallace Crooks filed for First Step Act relief in 2019, arguing that his conspiracy to distribute crack cocaine conviction qualifies for a reduced sentence under the retroactive application of the Fair Sentencing Act of 2010 (“FSA”) and that his career offender designation was always an error because a federal drug conspiracy is not a controlled substance offense under the Guidelines. He was sentenced 20 years ago to 30 years in prison and had served more than 20 years of that sentence at the time of his filing. He asked the U.S. District Court for the District of Colorado to be released with credit for “time served.”

The district court, however, denied Crooks’ motion, ruling that he was ineligible for a sentence reduction and that Crooks’ career offender sentence had to stand, even if it was in error, because such errors are not correctable under the First Step Act. The court found that Crooks’ sentencing range would not change because of the career offender enhancement, even if the FSA were in effect at the time of his original sentencing.

On appeal, Crooks challenged both of the district court’s determinations.

The Government conceded that Crooks was eligible for First Step Act relief, and the Tenth Circuit agreed. The Court noted that his eligibility turns on the proper interpretation of “covered offense” under § 404(a) of the First Step Act. If Crooks was convicted of a covered offense, then he’s eligible for relief.

Covered offense is defined by the First Step Act 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 of 2010, … that was committed before August 3, 2010.” The Court explained that the meaning of covered offense depends on what “the statutory penalties for which” modifies, i.e., (1) “a violation,” (2) “a Federal criminal statute,” or (3) “a violation of a Federal criminal statute.” The Court concluded that option (3) “is the approach most consistent with the text and structure of the First Step Act.” Thus, the Court held that “a defendant’s federal offense of conviction, not his underlying conduct, determines First Step Act eligibility.”

In fact, every circuit that’s addressed this issue has reached the same conclusion. See United States v. Smith, 954 F.3d 446 (1st Cir. 2020); United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019); United States v. Jackson, 945 F.3d 315 (5th Cir. 2019); United States v. Beamus, 943 F.3d 789 (6th Cir. 2019); United States v. Shaw, 957 F.3d 734 (7th Cir. 2020); United States v. McDonald, 944 F.3d 769 (8th Cir. 2019); United States v. Jones, 962 F.3d 1290 (11th Cir. 2020).

The Court determined that Crooks’ offense of conviction is a “covered offense” since it triggered a statutory penalty that has since been modified by the FSA, and thus, he’s eligible for resentencing under the First Step Act.

Turning to the career offender status issue, the Court noted that it had already “held that a defendant may challenge the legality of his career offender status in a First Step Act motion” in United States v. Brown, 974 F.3d 1137 (10th Cir. 2020) (“If the district court erred in the first Guideline calculation, it is not obligated to err again.”). The Court concluded that “[n]ot only is a career offender designation reviewable in a First Step Act motion, but this designation was incorrectly applied to Crooks at his initial sentencing … and led the sentencing court to incorrectly calculate his guidelines range.”

Accordingly, the Court reversed the district court’s denial of Crooks’ First Step Act motion and remanded for proceedings consistent with this opinion. See: United States v. Crooks, 997 F.3d 1273 (10th Cir. 2021). 

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Related legal cases

United States v. Crooks

United States v. Smith

United States v. Jones

United States v. Shaw

United States v. Beamus

United States v. Jackson

United States v. McDonald

United States v. Wirsing



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