Does the term 'covered offense' in the First Step Act of 2018 include violations of 21 U.S.C. § 841(a) involving crack cocaine to which apply the penalties in Subparagraph (b)(1)(C)

QUESTION PRESENTED Section 404 of the First Step Act of 2018 makes the Fair Sentencing Act of 2010 retroactive by authorizing courts to impose reduced sentences for “covered offense[s].” Pub. L. No. 115-391, § 404(b), 182 Stat. 5194, 5222. 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.” Jd. Section 2 of the Fair Sentencing Act amended 21 U.S.C. § 841 by altering the crack-cocaine quantities associated with the three tiers of penalties in § 841(b)(1). The Act shifted Subparagraph (b)(1)(A)’s 10-year-to-life range from more than 50 grams to more than 280 grams; Subparagraph (b)(1)(B)’s 5-to-40-year range from between 5 grams and 50 grams to between 28 grams and 280 grams; and Subparagraph (b)(1)(C)’s 0-to-20-year range from less than 5 grams to less than 28 grams (or an unspecified quantity). The question presented is: Does the term “covered offense” in the First Step Act of 2018 include violations of 21 U.S.C. § 841(a) involving crack cocaine to which apply the penalties in Subparagraph (b)(1)(C) (as the First, Fourth, and Seventh Circuits have determined) or not (as the Third, Sixth, Tenth, and Eleventh Circuits have held)? ii STATEMENT OF