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

COULDA, WOULDA, SHOULDA

Jason Broadway got caught with 488 grams of crack in 2007. He was indicted for having more than 50 grams (which triggered a 10-year statutory minimum under 21 USC § 841(b)(1)(A)) and admitted to the full 48 grams in a plea deal. He got 262 months under the then-applicable Guidelines.

As you recall, the Fair Sentencing Act of 2010 reduced the disparity between crack and powder from a 100:1 ratio to 18:1, making the difference in sentences imposed based on the amount of drug at issue much less. But it was not until the First Step Act passed in 2018 that the Fair Sentencing Act changes could be applied retroactively to people like Jason, who had been sentenced prior to 2010.

Jason applied for a sentence reduction under First Step Section 404, arguing that his statutory mandatory minimum sentence had been reduced by the Fair Sentencing Act. But the district court turned him down, pointing out the government could have indicted him for 488 grams but did not, and he probably would have admitted to all those drugs anyway, and a jury should have convicted him if he had gone to trial (which he did not), and because Jason was a career offender, his Guideline max of “life” would not have changed.

Jason was denied on a “coulda, woulda, shoulda” analysis.

Last week, the 10th Circuit reversed. The Circuit that for the district judge to reach his conclusion, he had to assume that if the Fair Sentencing Act had been in effect, Jason would have been indicted for more than 280 grams (the new cutoff for the 10-year minimum sentence), and if he had been indicted for more than 280 grams he would have pled to it, and if he had pled to it he would not have made a sentencing objection to the 488 grams the government said he had possessed.

“To impose a reduced sentence as if the Fair Sentencing Act were in effect at the time the offense was committed is inherently backward-looking,” the 10th held, “but it should not require the amount of speculation necessitated by looking to a defendant’s underlying conduct, even if stipulated. Courts are not time machines which can alter the past and see how a case would have played out had the Fair Sentencing Act been in effect. We doubt Congress would have imposed such a futile role for us.”

Thus, the Circuit ruled, the District Court had to consider the statutory minimum attached to the offense of conviction (more than 50 grams) – not what could have been but never was – and should calculate Jason’s corrected Guidelines range after the passage of the Fair Sentencing Act before considering whether the sentencing factors of 18 USC § 3553(a) argued against a reduction.

United States v. Broadway, Case No. 20-1034, 2021 U.S.App. LEXIS 18506 (10th Cir., June 22, 2021)

– Thomas L. Root