We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
AN ANNIVERSARY OF A MYSTERIOUS DEATH… AND A COUPLE OF CASE SHORTS
We have a couple of notable decisions from last week for this, the traditional day we all commemorate the untimely death by suicide of Billie Joe McAllister, the 1967 first-person ballad sung by Bobbie Gentry. As Bobbie began the song, “It was the third of June, just sleepy, dusty delta day…”
As The Independent reported in 2017, the reason for Billie Joe’s mythical death remains a mystery: “Fifty years on we’re no wiser as to why Billie Joe did what he did and in the context of the song and Gentry’s intentions, that’s just as it should be.”
Let’s try to demystify some gleanings from last week’s federal appellate decisions:
The Eighth Joins the Party: The 8th Circuit joined other circuits that have ruled on this issue, holding last week that two brothers whose cases involved the distribution of both crack and powder were eligible for the retroactive Fair Sentencing Act reduction authorized by the First Step Act, despite the fact that the powder cocaine in their cases was such that the Fair Sentencing Act did not lower their Guidelines ranges.
The Circuit ruled that Sec 404(a) of the First Step Act says that covered offenses are those whose penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” Their crack penalties were reduced, even if the brothers “ultimately would be subject to the same statutory sentencing range as a consequence of” the powder cocaine. Thus, the sentencing judge now had to decide whether they should be granted a lower sentence.
The Eleventh Goes Its Own Way (Again): A week or so ago, I reported on United States v. Lopez, a 9th Circuit case that interpreted the First Step Act to dramatically expand the application of the drug offense safety valve set out in 18 USC § 3553(f).
The 11th Circuit (who else) has helpfully provided an opinion going absolutely the opposite direction. Julian Garcon got the safety valve when sentenced for cocaine distribution, because he didn’t meet all three subsections of the law required to be disqualified. The government appealed, arguing that the word “and” in the statute really meant “or.”
Who would be twisted enough to think that? The 11th Circuit, that’s who. The panel held that “based on the text and structure of § 3553(f)(1), the “and” is disjunctive. Accordingly, we vacate the sentence and remand for resentencing…”
Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog that the case “produced a crisp circuit split on the proper interpretation of a key provision of the First Step Act on a matter that impacts many hundreds of federal drug cases every month… It is surely only a matter of time before other circuits weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.”
United States v. Spencer, Case No 19-2685, 2021 U.S. App. LEXIS 15862 (8th Cir, May 27, 2021)
United States v. Garcon, Case No 19-14650, 2021 U.S. App. LEXIS 14683 (11th Cir, May 18, 2021)
Sentencing Law and Policy, In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision (May 27)
– Thomas L. Root