Petition for Writ of Certiorari — Shannon L. Cotton, Petitioner v. United States

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-MMMEIL (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.

The Seventh Circuit’s opinion conflicts with

Johnson v. United States, 529 U.S. 694 (2000). .................... 20

C.

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.

II.

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

III.

(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;

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.

(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 111–220; 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 . . . .

VI.

18 U.S.C. § 3583(e)

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-tolife 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-to1.” 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-cr20019, 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 would remain for over two decades. As time went by

attitudes toward the “war on drugs” and the “social justice” of locking up mainly

young black men for long periods in federal prisons for selling small amounts of

drugs changed. Indeed, attitudes and laws regarding how to weigh punishment for

crack-cocaine as opposed to powder cocaine are an example of this change.

The Fair Sentencing of 2010 passed him by because it was not retroactive.

Then, finally, in 2018, Mr. Cotton received some hope that his draconian sentence

would be reduced. Almost immediately after the First Step Act was passed in

12

December 2018, Mr. Cotton filed for First Step Act relief on January 30, 2019. By

that point, he had already been in prison for 12 years. Mr. Cotton’s pro se motion

was amended by counsel on April 13, 2020. Cotton, 07-cr-20019, R. 28 (C.D. Ill.

2017). On April 24, 2020, over a year after Mr. Cotton filed his pro se motion, his

sentence was reduced to 188 months and his term of supervised release was reduced

to six (6) years under Section 404(b) of the First Step Act. Id. at R. 32. He was

released from prison on October 9, 2020, after serving just shy of 14 years in

custody and his term of supervised release started on the same day. Id. at R. 38.

3.

On April 7, 2022, after Mr. Cotton had been on supervised release for

18 months, the government filed a petition to revoke, alleging a positive sweat

patch test that revealed the use of controlled substances. R. 38. The petition was

amended on April 26, 2022, to add two additional sweat patch tests that allegedly

showed the use of marijuana. R. 42. These were Grade B supervised release

violations with a guideline range of 21 to 27 months’ imprisonment. See R. 51 at 5;

see also U.S.S.G. § 7B1.4(a).

On October 24, 2022, the government filed a supplemental revocation

petition, this time alleging a new law violation based on Mr. Cotton allegedly

possessing controlled substances with the intent to distribute. R. 57. Because this

allegation constituted a new law violation, it was a Grade A supervised release

violation. See U.S.S.G. § 7B1.1(a)(1). Probation determined that Mr. Cotton had a

statutory maximum 5-year term of imprisonment based on what his felony offense

13

was in 2007, suggesting a guideline range of 51-60 months’ imprisonment, capped

by a 5-year statutory maximum. See Cotton, 07-cr-20019, R. 58 at 3.

On January 17, 2023, the district court held Mr. Cotton’s revocation hearing.

Mr. Cotton admitted to violation number one of the original petition (possession and

use of cocaine and cannabis), violation number two of the first supplemental

petition (cannabis use), and violation number three of the second supplemental

petition (possession with intent to deliver a controlled substance). See Cotton, 07-cr20019, January 17, 2023, Text Order.

During the hearing, a dispute arose concerning the applicable statutory

maximum penalty in relation to Mr. Cotton’s revocation sentence. Mr. Cotton

argued that a statutory maximum two-year term of imprisonment applied, which is

the highest penalty that he could face on a revocation under 21 U.S.C.

§ 841(b)(1)(C), his offense of conviction after the retroactive Fair Sentencing Act.

The government suggested that the statutory maximum was five years based on the

statutory maximum that applied under the now-defunct pre-Fair Sentencing Act

sentencing regime. The district court ordered briefing on the topic by January 31,

2023. Cotton, 07-cr-20019, R. 63; R. 64.

The final revocation hearing was held on February 21, 2023. The district

court agreed with Mr. Cotton. Tr. at 36. As such, the court determined that the

statutory maximum penalty was 24 months’ imprisonment. The district court

ultimately imposed a 24-month sentence to be followed by a 3-year term of

supervised release. Tr. at 59. The government filed a timely notice of appeal. R. 72.

14

4.

On July 26, 2024, the Seventh Circuit issued a 2-1 split opinion

vacating the district court’s revocation sentence and remanding for resentencing.

United States v. Cotton, 108 F.4th 987 (7th Cir. 2024). In doing so, the court

correctly noted that “the maximum revocation sentence depends on whether ‘the

offense that resulted in the term of supervised release is a class A felony,’ or a class

B felony, and so on.” Cotton, 108 F.4th at 991. It also accurately held that “[t]he

present-tense verb—'is’—cannot be divorced from what it modifies: ‘the offense that

resulted in the term of supervised release.’” Id. (emphasis added).

Yet, inexplicably, the Seventh Circuit switched to discussing Cotton’s

“conviction” rather than his “offense,” as 18 U.S.C. § 3583(e)(3) instructs. The court

noted that “Cotton’s 2007 conviction” that resulted in his term of supervised release

was under Section 841(b)(1)(B) and that “Section 3583(e)(3) does not ask whether

someone else’s conviction for the same conduct ‘is’ or would be a class A, B, C, or D

felony under current law.” Id. (emphasis in original). The Court continued, pointing

out that “[t]he statute asks whether Shannon Cotton’s conviction under the 2007

version of 21 U.S.C. § 841(a)(1) and (b)(1)(B) ‘is’ a class A, B, C, or D felony.” Id.

(emphasis in original). It concluded that “[t]he answer is yes: Cotton’s 2007

conviction was for a class A felony and that remains true today.” Id.; see also id. at 8

(“Cotton’s 2007 federal cocaine conviction remains and therefore “is” a class A

felony.”).

The court believed that its holding aligned with this Court’s observation in

Johnson v. United States, 529 U.S. 694, 700 (2000), which held that post-revocation

15

penalties arise from and are “treated as part of the penalty for the initial offense.”

Cotton, 108 F.4th at 991 (cleaned up). The Seventh Circuit closed by noting that

revocation sentencing proceedings are not an opportunity to challenge convictions

and that Section 3583(e)(3) “does not sit alongside § 2255 and present an alternative

means available to federal prisoners to challenge some aspect of their conviction.”

Id. While the panel found that Cotton faced a five-year statutory maximum

sentence, it further held that the district court as was not prohibited from taking

changes in the law, such as the Fair Sentencing Act, into account when fashioning

an appropriate sentence under Section 3553(a). Id.

Judge Pryor concurred in part and dissented in part. Cotton, 108 F.4th at

992-996 (Pryor, J., dissenting). Judge Pryor expressly noted that the majority’s

incorrect use of “conviction” instead of “offense” could undermine the text of 18

U.S.C. § 3583. Cotton, 108 F.4th at 993, n.1. Moreover, she also opined that the

district court’s 2020 grant of discretionary relief did alter Cotton’s felony

classification from class A to class B. Id. at 994-996. As such, Judge Pryor would

have held that Cotton’s underlying offense was a class B felony, subjecting him to

no more than three years in prison upon resentencing.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to ensure that lower courts follow

Congress’s plain language and express intent, as well as the established precedent

of this Court. The Seventh Circuit’s holding is contrary to plain statutory language

and rewrites Section 3583(e)(3) to use the word “conviction” instead of “offense.”

16

Without this rewrite, the panel opinion cannot be reconciled with Section 3583(e)(3)

because offenses are defined by law and their elements. Gamble v. United States,

139 S. Ct. 1960, 1965 (2019); Hughey v. United States, 495 U.S. 411, 416 (1990). The

word “offense,” combined with the present tense use of the word “is” in Section

3583(e)(3) leads to one permissible conclusion: possession with intent to distribute

five or more grams of crack cocaine with a prior qualifying drug felony “is” a class B

felony. Because the Seventh Circuit’s opinion rewrites 18 U.S.C. § 3583(e)(3), this

Court should intervene.

Moreover, the Seventh Circuit’s opinion is in direct conflict with this Court’s

decision in Johnson v. United States, 529 U.S. 694, 701 (2000), which squarely holds

that “post revocation penalties relate to the original offense,” not the original

conviction. The opinion is also inconsistent with Congress’s purpose in passing the

Fair Sentencing and First Step Acts, reverting to defunct penalties that Congress

has expressly deemed too harsh and motivated by unwarranted racial disparities.

This case meets all the Court’s criteria for granting certiorari. First, the

question presented concerns an important issue of statutory interpretation and

directly implicates well-established precedent of this Court. Second, the Seventh

Circuit’s holding presents an issue of great importance as it currently undermines

the very purpose of passing both the Fair Sentencing and First Step Acts. Fourth,

the question presented will profoundly affect many defendants who, under the

Seventh Circuit’s holding, will be subject to higher criminal penalties that are based

17

on outdated and unjust laws. Finally, this case is an ideal vehicle to resolve the

question presented.

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.

To reach its conclusion, the Seventh Circuit rewrote the plain the language of

18 U.S.C. § 3583(e)(3) to read “conviction . . . is” instead of honoring the plain

language of the statute that says “offense . . . is.” That opinion directly conflicts with

this Court’s precedent in Johnson v. United States, and runs afoul of Congressional

intent in passing the First Step Act. Any of these reasons, standing alone, would be

enough to warrant this Court’s intervention. Combined, they make this case an

ideal candidate for certiorari.

A.

The Seventh Circuit rewrote 18 U.S.C. § 3583(e)(3).

The text of the statute itself is the most reliable indicator of congressional

intent. See Snyder v. United States, 603 U.S. 1, at 22-23 (2024) (Jackson, J., joined

by Sotomayor, J., and Kagan, J., dissenting). Courts must assume “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).

The plain language of 18 U.S.C. § 3583(e)(3) asks whether “the offense that resulted

in the term of supervised release is” a class A or B felony. 18 U.S.C. § 3583(e)(3)

(emphasis added). The Seventh Circuit correctly recognized that the present tense

use of “is” in Section 3583(e)(3) cannot be divorced from the phrase it modifies,

which is “the offense that resulted in the term of supervised release.” Cotton, 108

18

F.4th at 991. Yet, at the same time, the Seventh Circuit replaced “offense” with

“conviction” in Section 3583(e)(3), multiple times. See id. at 991. But “offense” and

“conviction” are not interchangeable.

“An offense is defined by law,” which in turn means by its elements. Gamble

v. United States, 139 S. Ct. 1960, 1965 (2019); Carachuri-Rosendo v. Holder, 560

U.S. at 563, 572 (2010) (“most federal offenses are defined by their elements”).

Offenses, on the other hand, are criminal acts. Cotton, 108 F.4th at 993, n.1 (citing

Offense, BLACK’S LAW DICTIONARY (12th ed. 2024)). Conviction is not defined in

Section 3583(e) because Congress did not use that term. However, a “‘conviction’ is

equivalent to a ‘judgment.’” Cotton, 108 F.4th at 993, n.1 (citing Conviction,

BLACK’S LAW DICTIONARY (12th ed. 2024)); see also Carachuri-Rosendo, 650

U.S. at 582-83 (Scalia, J., concurring) (noting that “conviction” in the Immigration

and Nationality Act is defined as “formal judgment of guilt of the alien entered by a

court.”).

Substituting “conviction” for “offense” rewrites the statute and changes the

outcome of the case. Keeping in mind that the present tense use of “is” modifies

“offense” (Cotton, 108 F.4th at 991), the question, then, is what are the current

elements of Cotton’s offense? Put another way, what “is” Cotton’s criminal act of

possession with intent to distribute five grams or more of crack cocaine? There is

only one way to answer that question – the “offense” of possession with intent to

distribute five or more grams of crack cocaine with a qualifying prior conviction “is”

a class B felony because it carries a statutory maximum 30-year term of

19

imprisonment, with a prior felony conviction. 21 U.S.C. § 841(b)(1)(C); 18 U.S.C.

§ 3559(a)(2).

Meaning, Cotton’s conviction was for a class A felony “and that remains true

today.” Cotton, 108 F.4th at 991. No one disputes that the “conviction,” or

“judgment” as that term is defined, is a class A felony. But that is not the focus of 18

U.S.C. § 3583(e)(3). The plain language of Section 3583(e) focuses on whether

Cotton’s offense that resulted in his term of supervised release “is” as class A or B

felony. 18 U.S.C. § 3583(e)(3). And the answer is a class B felony when the inquiry

focuses on the criminal act. The Seventh Circuit was correct that the statute does

not ask what someone else’s conviction for the same conduct “is” under current law

(Cotton, 108 F.4th at 991), but that is because the statute does not ask about

anyone’s conviction. The operative inquiry is focused on someone’s offense. 18 U.S.C.

§ 3583(e)(3).

B.

The Seventh Circuit’s opinion conflicts with Johnson v. United

States, 529 U.S. 694 (2000).

Although the Seventh Circuit believes its view “aligns” with Johnson v.

United States, 529 U.S. 694 (2000) (Cotton, 108 F.4th at 991), the opposite is true.

As the panel recognized, “post revocation penalties relate to the original offense.”

Johnson, 529 U.S. at 701 (emphasis added). Like Section 3583(e)(3), Johnson does

not say that post revocation penalties relate to the original conviction. Thus, if the

“original offense” has been changed by Congress, as is the case here, then to align

with Johnson, as well as the plain language of Section 3583(e)(3), which uses “is,”

20

the operative inquiry must ask what the “offense . . . is” and not what the

“conviction . . . is” or the “offense . . . was.”

Moreover, the Seventh Circuit’s opinion is inconsistent with Johnson’s

discussion of Congressional intent to give retroactive effect to subsequent

legislation. Johnson, in its discussion of post revocation penalties relating to the

original offense, noted that when there is a “a clear statement of [Congressional]

intent” to “give retroactive effect” to subsequent legislation, the Court will indeed

honor that intent. Johnson, 529 U.S. at 701-02 (emphasis added). That is precisely

what we have here. Congress, through the First Step Act, made such a statement

with respect to the Fair Sentencing Act. Meaning, Cotton’s statute of conviction “is”

a Class B felony, and, via clear Congressional intent on retroactivity, the current

classification of felony “relates to” the original “offense.” Johnson, 529 U.S. at 70102; See also United States v. Sanders, 909 F.3d 895, 901 (7th Cir. 2018) (noting that

Congress can give retroactive effect to changes in the law for the purpose of future

proceedings).

C.

The Seventh Circuit’s opinion frustrates Congressional

purpose in passing the First Step Act.

The First Step Act has been billed as “the most significant criminal justice

reform bill in a generation.” Pulsifer v. United States, 601 U.S. 124, 155 (2024)

(Gorsuch, J., dissenting) (citation omitted). Setting aside whether the First Step Act

changed the felony classification for everyone, it certainly did for Cotton who

received a reduction under Section 404(b) of the First Step Act. Any other

21

conclusion “turns back the clock and erases the impact of Cotton’s resentencing.”

Cotton, 108 F.4th at 992 (Pryor, J., dissenting).

When a district court finds a defendant eligible for First Step Act relief, the

Court is required to “recalculate the statutory minimum and maximum that would

have applied had . . . the Fair Sentencing Act been in effect at the time the

defendant was originally convicted.” Cotton, 108 F.4th at 995 (citing United States

v. Fowowe, 1 F.4th 522, 529 (7th Cir. 2021) (cleaned up)). When the district court

chose to exercise its discretion to reduce Cotton’s sentence under Section 404(b) of

the First Step Act, it necessarily had to consult – and apply – the Fair Sentencing

Act’s penalties before reducing the sentence. “These changes in the statutory

maximum wrought by Cotton’s resentencing caused Cotton’s offense to become a

class B felony.” Id.

Otherwise, the district court’s decision to resentence Cotton to a six-year

term of supervised release would have been illegal because a class A felony would

have carried, at minimum, an eight-year term of supervised release. Cotton, 108

F.4th at 996; 21 U.S.C. § 841(b)(1)(B). If the district court understood Cotton’s

mandatory minimum term of supervised release to be six years and not eight, it

then also understood Cotton’s offense to be a violation of 21 U.S.C. § 841(b)(1)(C) or,

in other words, a class B felony. Id.

And, as the dissent recognized, the Seventh Circuit had already assumed in

non-precedential orders that the granting of a Section 404(b) motion reduces the

defendant’s felony class. United States v. Perkins, No. 21-1421, 2021 WL 515800, at

22

*2 (7th Cir. Nov. 5, 2021) (class A felony “became a class B felony” “through the

retroactive application of the Fair Sentencing Act.”); United States v. Baker, No. 212182, 2022 WL 523084, at *3 (7th Cir. Feb. 22, 2022) (same). The Fifth Circuit also

found that the First Step Act “revealed a ‘clear intention’ to change sentencing laws

retroactively, opening the door for the defendant’s felony classification to be reevaluated.” Cotton, 108 F.4th at 996 (citing United States v. Jones, No. 22-30480,

2023 WL 6458641, at *4 (5th Cir. Oct. 4, 2023)); The Fourth Circuit has agreed. See

United States v. Venable, 943 F.3d 187, 193 (4th Cir. 2019) (Fair Sentencing and

First Step Acts reclassified felonies).

These courts hold this way because anything else frustrates the purpose of

the Fair Sentencing and First Step Acts. The entire purpose of these Acts,

undoubtedly, is to reduce the sentencing disparities in crack cocaine cases. See

Dorsey, 567 U.S. at 276; Fowowe, 1 F.4th at 532. Prior to Congress passing the First

Step Act, the Seventh Circuit had commented that the Fair Sentencing Act might

more accurately be known as “The Not Quite as Fair as it could be Sentencing Act of

2010.” United States v. Fisher, 635 F.3d 336, 338 (7th Cir. 2011), rev’d sub nom.

Dorsey, 567 U.S. at 282. Congress thought so too. See, e.g., 164 Cong. Rec. S7774

(daily ed. Dec. 18, 2018) (statement of Sen. Feinstein) (“Unfortunately, [the Fair

Sentencing Act] did not apply retroactively, and so there are still people serving

sentences under the [prior sentencing regime].”).

Now the Seventh Circuit has inexplicably reverted to the “Not Quite as Fair

as it could be Sentencing Act of 2010.” Fisher, 635 F.3d at 338. It clawed back the

23

relief that the district court granted and reinstated the 1986 Anti-Drug Abuse Act

penalties that the DOJ told Congress “make little sense” and are “not fair.”

Statement of the U.S. Department of Justice Before the Committee on the

Judiciary, p. 5.1 The same penalties that resulted in unjust sentencing disparities

that are “still baked into federal law.” Id. at 7; see also 164 Cong. Rec. S7764 (daily

ed. Dec. 18, 2018) (statement of Sen. Booker) (Under the Anti-Drug Abuse Act of

1986, 21 U.S.C. § 841, thousands of people—“90 percent [of them] African

Americans; 96 percent [of them] Black and Latino”—received harsh crack-cocaine

sentences under a system that treated crack offenses 100 times more severely than

equivalent powder-cocaine offenses).

Cotton’s class of felony was reduced when his amended judgment was entered

under the First Step Act. This Court’s intervention is necessary to protect the relief

granted under the First Step Act and ensure that the Fair Sentencing Act is as fair

as it could be.

II.

The question presented warrants review.

The question presented has “significant implications for many federal

prisoners.” United States v. Brit, 966 F.3d 257 (3d Cir. 2020). As it stands, at least

in the Seventh Circuit, defendants will be subject to increased statutory maximum

penalties that Congress never intended and, in fact, expressly disavowed in passing

the Fair Sentencing and First Step Acts. In adopting 18 U.S.C. § 3583(e)(3),

Congress never intended for revocation sentences to be based on the classification of

1 Available at https://sentencing.typepad.com/files/doj-equal-act-testimony--final.pdf (accessed

December 16, 2024).

24

convictions or, worse, an outdated and irrelevant view of what an “offense was.”

And it certainly never intended the result that the Seventh Circuit has reached,

whereby defendants are being subjected to increased statutory maximum penalties

based on racially motivated crack-cocaine disparities that a bipartisan Congress

expressly abolished.

Yet, that is now the law in the Seventh Circuit. Defendants who face

revocations of supervised release will be subjected to increased statutory maximums

based on crack-cocaine laws that Congress has eliminated. Offenders cannot be

treated differently than similarly situated revocation defendants who happened to

have committed their offense after 2018. Cf. 18 U.S.C. § 3553(a)(6) (directing courts

to “avoid unwarranted sentence disparities”). And they certainly cannot be sent to

prison for longer periods of time based on racially motivated laws that Congress

fought to eliminate.

III.

This is an ideal vehicle.

Procedurally, Cotton argued below that the retroactive application of the Fair

Sentencing Act through the First Step Act meant that his offense “is” a Class B or C

felony. He made these arguments at every available opportunity. He did so in the

district court and the district court agreed. Pet. App. at 22-84. And he did so on

appeal. Pet. C.A.7 Br. R. 17; Pet. C.A.7 Petition for Rehearing R. 36.

Moreover, the district court squarely decided the issue and held that the

statutory maximum is based on what the felony classification currently “is.” The

court of appeals reversed on the sole ground that the statutory maximum penalty is

25

determined by what the “conviction is,” rather than what the “offense is.” And

although the Seventh Circuit held that the Petitioner could still raise his argument

in relation to the factors articulated at 18 U.S.C. § 3553(a), it held that the

statutory maximum penalty was determined used pre-Fair Sentencing Act crackcocaine penalties that no longer exist.

Factually too, Petitioner’s case presents a clean vehicle. This is not a case

where the district court indicated that the Petitioner’s sentence would have been

the same regardless of the applicable statutory maximum. In fact, the district court

clearly stated that it would likely impose a higher sentence if it had the statutory

authority to do so. Pet. App. at 80. Thus, the outcome of this question will likely

determine Cotton’s ultimate sentence. At this time, Cotton has already been

released from custody and is serving his term of supervised release.2 If the Seventh

Circuit’s decision is not rectified, the district court will likely send him back to

prison.

IV.

The decision below is incorrect.

This Court’s intervention is necessary because the Seventh Circuit was

wrong. The Seventh Circuit’s holding that the statutory maximum sentence on

revocation depends on what an offender’s “conviction is” rather than what their

“offense is” cannot be reconciled with the plain language of 18 U.S.C. § 3583(e)(3).

Offenses and convictions are not the same in the law and Congress’s express choice

to use one instead of the other must be respected.

2 https://www.bop.gov/inmateloc/ (accessed December 16, 2024) (showing Cotton’s release date as

June 26, 2024).

26

Neither the Seventh Circuit’s opinion nor the government’s interpretation of

Section 3583(e)(3) can work without rewriting the statute. To illustrate, the

Seventh Circuit would undoubtedly be correct if Congress had used “conviction”

instead of “offense” in conjunction with the present tense use of “is.” It is accurate to

say that Cotton’s conviction is for a class A felony, because conviction means

“judgment.” Likewise, if Congress had used the past tense “was” instead of “is” to

modify “offense,” then the Seventh Circuit’s outcome would also be correct, because

Cotton’s offense was a class A felony in 2007. But Congress did not choose either of

those options. It wrote “offense” and “is.” The only way to honor the plain language

of the statute without rewriting it is to adopt Cotton’s interpretation. United States

v. Pace, 48 F.4th 741, 763 (7th Cir. 2022) (Wood, J., dissenting) (“The words mean

what they mean, whether or not we like the outcome.”).

Congress used the word “offense,” not “conviction.” And although the Seventh

Circuit is correct that Congress’s choice of the present tense use of the word “is”

cannot be divorced from the phrase it modifies (Cotton, 108 F.4th at 991), the very

phrase that “is” modifies also cannot be rewritten to mean something else. This

distinction was not an accident. For example, the Armend Career Criminal Act

speaks of convictions, not offenses. 18 U.S.C. § 924(e); see also McNeil v. United

States, 563 U.S. 816, 820 (2011) (the plain text of ACCA relies on convictions). So

too does the recidivism enhancement in 21 U.S.C. §§ 841(b)(1)(A)-(C), which

increases statutory penalties for prior “convictions.” In short, Congress knows the

difference between “offense” and “conviction” and its decision to choose “offense” in

27

Section 3583(e)(3) must be honored. See Pace, 48 F.4th at 761 (Wood, J., dissenting)

(“as judges it is our duty to apply the law as it is written”).

This Court has squarely held that “post revocation penalties relate to the

original offense.” Johnson, 529 U.S. at 701. That does not mean that post revocation

penalties relate to the original “conviction,” as the Seventh Circuit stated, multiple

times. The dissent is in line with previous decisions of the Seventh Circuit, as well

as other federal courts of appeal. In United States v. Corner, 967 F.3d 662 (7th Cir.

2020), the Seventh Circuit held that when a defendant raises Section 404(b)

arguments at a revocation hearing, the district court is required to consider the

updated penalties of the Fair Sentencing Act. If the district court is required to

consider those penalties and then, in its discretion, goes a step further and applies

them to reduce a defendant’s sentence, it makes little sense to hold that it is not

required to apply those same penalties in a later proceeding. Put another way, once

a district court applies the Fair Sentencing Act penalties through the First Step

Act, it would be an afront to Congress’s remedial purpose to apply pre-Fair

Sentencing Act penalties later during a revocation hearing.

The Seventh Circuit was wrong to revert to penalties that Congress expressly

disavowed in passing the Fair Sentencing and First Step Acts. This Court should

intervene to ensure that Congressional intent is respected and that all defendants

are treated the same regardless of when their original sentence was imposed.

Anything else turns back the clock to a pre-Fair Sentencing Act world that Congress

fought hard to eliminate.

28

CONCLUSION

For the foregoing reasons, the Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

THOMAS W. PATTON

Federal Public Defender

s/ Thomas A. Drysdale

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

January 2, 2025

29