Whether the First Step Act's 'covered offense' analysis turns upon whether the Fair Sentencing Act modified the sentencing range for violation of a given statute or upon whether the Fair Sentencing Act modified the minimum drug weight thresholds for conviction under a given statute

QUESTION PRESENTED CAPITAL CASE Petitioners were sentenced to death under 21 U.S.C. § 848(e)(1)(A) for killings committed “while engaged in and working in furtherance of” a continuing criminal enterprise premised upon the possession with the intent to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A). Petitioners filed motions pursuant to Section 404 of the First Step Act for sentencing relief from, inter alia, their offenses under § 848(e)(1)(A). Petitioners asserted that § 848(e)(1)(A) is rendered a “covered offense” under the Act by its incorporation of § 841(b)(1)(A) — whose threshold drug weight was increased by the Fair Sentencing Act — as an element and predicate offense. In its opinion affirming the district court’s denial of relief, however, the Fourth Circuit announced and applied a new legal standard for assessing eligibility for First Step Act relief: an offense is not “covered” if the “statutory penalties associated with the [offense] remain the same both before and after [the passage of] the Fair Sentencing Act.” App. B at 16. The question presented is: Whether the First Step Act’s “covered offense” analysis turns upon whether the Fair Sentencing Act modified the sentencing range for violation of a given statute — a standard under which no offense is covered under the First Step Act — or upon whether the Fair Sentencing Act modified the minimum drug weight thresholds for conviction under a given statute. i STATEMENT OF