We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A COUPLE OF FAIR SENTENCING ACT DECISIONS…

The number of federal inmates with novel coronavirus has soared from 799 to over 1,300 in two days. But there was a lot to talk about before COVID-19 became the topic of the day, and while the courts have suspended oral arguments and motion hearings, they are still pumping out decisions.

Brooks Chambers was convicted of a crack offense in 2003, and sentenced to 262 months as a Guidelines career offender. In 2019, he filed a First Step Act Section 404 motion for a sentence reduction. (Section 404 of the First Step Act made the provisions of the Fair Sentencing Act of 2010 retroactive). In his motion, he pointed out that the career offender enhancement was wrong, because one of the two crimes supporting it was later held by the 4th Circuit in United States v. Simmons not to apply. The guideline correction was made retroactive, but Brooks never bothered to apply to the court to have his sentence fixed.

The district court granted Brooks’ Section 404 motion, but refused to lift the career offender enhancement on the grounds that a Section 404 resentencing could not consider guidelines mistakes, only the difference in statutory punishment. The court adjusted his supervised release term, but not his prison sentence.

Last week, the 4th Circuit reversed. It held nothing in the First Step Act keeps courts from recognizing past Guidelines errors. “Section 404(b)… expressly permits the court to ‘impose a reduced sentence’,” the 4th said. “Not ‘modify’ or ‘reduce,’ which might suggest a mechanical application of the Fair Sentencing Act, but ‘impose’… And, when “imposing” a new sentence, a court does not simply adjust the statutory minimum; it must also recalculate the Guidelines range.”

Jason Holloway also filed a Section 404 motion, seeking a reduction of his 168-month crack cocaine sentence and his 10-year supervised release term. The district court applied the framework of 18 USC § 3582(c)(2) and Guideline 1B1.10, both of which require that the defendant show that the change in the law had lowered his Guidelines sentencing range.

Because Jason had been sentenced as a career offender, the district court concluded that even after application of the retroactive Fair Sentencing Act, his Guidelines range did not change. So the district court denied his Section 404 motion.

Last week, the 2nd Circuit reversed. It held 18 USC 3582(c)(1)(B) – not (c)(2) – governed Section 404 motions. Therefore, Section 1B1.10 does not apply, and therefore, the fact that Jason’s guidelines did not change does not prevent a district court from considering a sentencing reduction. Plus, the fact that Jason had finished his sentence while his motion was pending did not prevent the district court from cutting the length of his term of supervised release to compensate for the lower sentencing range.

United States v. Chambers, 2020 U.S.App. LEXIS 13106 (4th Cir. April 23, 2020)

United States v. Holloway, 2020 U.S.App. LEXIS 13276 (2nd Cir. April 24, 2020)

– Thomas L. Root