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

A PASSEL OF FAIR SENTENCING ACT RULINGS

Last week brought a pile of rulings on retroactive Fair Sentencing Act motions brought under Section 404 of the First Step Act.

(Skip this if you know what I’m talking about). The Fair Sentencing Act of 2010, of course, is the law that changed how defendants with crack (cocaine base) were punished. Back in the paranoid days of the late 1980s, crack was considered to be the scourge of the inner cities, terribly addictive compared to powder cocaine, dirt cheap and sold by people who were crazily violent and armed with an arsenal that Kim Jong Eun would envy. Congress responded thoughtfully by passing the Anti Drug Abuse Act of 1988, which mandated punishment for crack dealers as though they had sold 100 times as much powder cocaine. Really. 100:1. Selling crack that weighed no more that a .22 cal. bullet (the pointy lead thing, not the whole cartridge) was akin to selling a half-pound of cocaine powder.

Congress was right about one thing. Crack was a plague of the inner cities, because users could by enough to induce a high for a lot less than cocaine powder. What this meant was that the people who sold it were overwhelmingly black. The net effect of the ADA was to hang horrific sentences on blacks, while their white suburban counterparts who peddled powder faced much lighter sentences for essentially selling the same amount of drug.

Think I’m kidding? Proper cooking of powder cocaine ( to that I suggest you try this at home) should yield about 89%. That is, one kilo of coke powder should give you about 9/10th kilos of crack. Under the ADA, sell the powder and get five years (63 months minimum sentencing range under the then-current Guidelines). Cook the powder and sell the crack, and your minimum sentencing range would be 235 months.

Subsequent studies debunked the myth that crack was ore addictive than powder, and that crack distribution occasioned more violence than powder sales. But the law persisted until 2010, when Congress passed the FSA. The FSA cut the penalties from a ratio of 100:1 down to 18:1.  The 1:1 people tried their hardest, but some compromise was needed to pass the Senate. Likewise, the FSA proponents had to give up their hope it would be retroactive to people serving long sentences already. To appease the troglodytes in the Senate, retroactivity was jettisoned, too.

In the First Step Act, Congress finally made the FSA retroactive. Under Section 404 of First Step, a person serving a crack sentence imposed before the FSA could apply for a sentence reduction, which the judge could grant or refuse to grant as a matter of discretion. (End background – you may resume reading).

Tony Denson, a federal prisoner, appealed the district court’s order reducing his crack sentence under Sec. 404. Without a hearing, the district court granted Tony’s motion, cutting his 262-month sentence to 188 months. The reduction was less than what Tony anticipated, so he appealed, arguing the district court erred by not holding a hearing.

The 11th Circuit shot him down, holding that under Federal Rules of Criminal Procedure 43, Tony’s presence was not required in a § 3582(c) proceeding, and that’s all a Sec. 404 resentencing is. The Circuit joined the 5th and 8th Circuits in holding that a defendant has no right to a hearing on a Fair Sentencing Act resentencing.

In the 8th Circuit, a district court denied Jonair Moore’s Sec. 404 motion, holding that he had dealt in too much coke and crack (11 kilos of powder, 1.2 kilos of rock) for the court to want to cut his time. Also, the judge said, Jon had obstructed and used a gun in the drug crimes, so his 230-month sentence seemed right.

Jon appealed, arguing that on a Sec. 404 resentencing, the judge had to apply the 18 USC § 3553(a) sentencing factors to any decision. The 8th disagreed.

“Section 404 is permissive,” the Circuit ruled. “A district court ‘may’ impose a reduced sentence. Nothing in this section shall be construed to require a court to reduce any sentence under the section.” Furthermore, the 8th said, Sec. 404 nowhere mention the § 3553 factors: “When Congress intends to mandate consideration of the section 3553 factors, it says so,” the panel wrote, citing 18 USC §3582(c)(2) (stating a court may impose a reduced sentence after considering the factors set forth in section 3553(a)…) In the First Step Act, Congress does not mandate that district courts analyze the section 3553 factors for a permissive reduction in sentence.”

Meanwhile, the 4th Circuit issued an explanation for its earlier order than Al Woodson be resentenced. Al was sentenced under 21 USC 841(b)(1)(C) for distribution of 4 grams of crack. Subsection 841(b)(1)(C) had no mandatory minimum sentence. Ten years later, Woodson filed a motion for a reduced sentence First Step Act Sec. 404, believing he was eligible for relief because he was convicted for a crack cocaine offense prior to 2010. The district court denied his motion on the ground that Sec. 404 does not apply to crack offenders sentenced under 841(b)(1)(C).

The 4th disagreed. It held that the FSA modified 841(b)(1)(C) by altering the crack cocaine quantities to which its penalty applies. Before the FSA, 841(b)(1)(C)’s penalty applied only to offenses involving less than 5 grams of crack cocaine. Because of the FSA, the penalty in Subsection 841(b)(1)(C) now covers offenses involving between 5 and 28 grams of crack cocaine as well.

The scope of 841(b)(1)(C)’s penalty for crack cocaine is defined by reference to 841(b)(1)(A) and (B): 841(b)(1)(C) imposes a penalty of not more than 20 years for crack trafficking offenses “except as provided in subparagraphs (A) [and] (B).” Thus, by increasing the drug weights to which the penalties in 841(b)(1)(A)(iii) and (B)(iii) applied, the Circuit held, Congress also increased the crack cocaine weights to which 841(b)(1)(C) applied, too.

United States v. Denson, 2020 U.S. App. LEXIS 19636 (11th Cir. June 24, 2020)

United States v. Moore, 2020 U.S. App. LEXIS 19616 (8th Cir. June 24, 2020)

United States v. Woodson, 2020 U.S. App. LEXIS 19700 (4th Cir. June 24, 2020)

– Thomas L. Root

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

ANOTHER CIRCUIT HOLDS FSA RESENTENCING DEPENDS ON FACTS IN INDICTMENT, NOT IN THE PSR

The tide is slowly turning in favor of defendants for crack cocaine resentencings arising from Fair Sentencing Act (FSA) retroactivity, authorized a year ago (minus five days) in Section 404 of the First Step Act. A few weeks ago, the 4th Circuit held that eligibility for a sentence reduction depended on the amount of crack specified in the indictment, not what the court found at sentencing. Last week, the 8th Circuit reached a similar conclusion where the defendant had been charged with 50 grams of crack, but sentenced for 150 kilos of powder.

Back before the turn of the millennium, Maurice McDonald was charged with distributing more than 50 grams of crack, and convicted of distributing about 57 grams of cocaine base. When Maurice committed the offense in 1999, the statutory penalty for 57 grams of crack was 10 years to life in prison. He was sentenced to life in prison, but that was cut to 30 years in a prior Guidelines 2-level reduction. After First Step made the FSA retroactive, the statutory range for Maurice’s conviction fell to 5 to 40 years.

But the district court denied Maurice’s sentence reduction motion, because his 360 month-to-life Guidelines sentencing rang was based on the presentence report’s having found him responsible for distributing more than 150 kilos of powder cocaine. Because his sentence was driven by the 330 lbs. of powder described in the PSR, the district judge reasoned, Maurice was not eligible for a reduction under the retroactive FSA.

The 8th Circuit disagreed. Instead, it held, Maurice’s offense of conviction  is a “covered offense” under First Step Act Sec. 404 because (1) it is a violation of a federal statute specifying crack cocain; (2) the statutory penalties for that statute were modified by the FSA; and (3) the offense was committed before August 3, 2010. Consequently, Maurice was eligible for a sentence reduction on his count of conviction.

The 8th wrote, “It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base. But this Guidelines calculation does not change the fact that he was convicted… for distributing cocaine base in violation of 21 USC 841(b)(1)(A)(iii). The First Step Act applies to offenses, not conduct… and it is McDonald’s statute of conviction that determines his eligibility for relief.”

The Circuit explained that a district court considering a motion for reduced crack sentence under the First Step Act “proceeds in two steps. First, the court must decide whether the defendant is eligible for relief under Sec. 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction. That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step.”

In a recent Southern District of Texas case, a district court denied a defendant a First Step Sec. 404 sentence reduction because of the weight of the crack found in the PSR, rather than what was alleged in the indictment. The defendant moved for reconsideration, explaining in detail that the weight of authority nationwide is trending in the direction of holding that it is the indictment, not the PSR, that governs eligibility for a sentence reduction.

Remarkably, the district court conceded the point, holding that “in the interest of justice and a spirit of ‘judicial comity’, the Court follows the majority of courts that have addressed this issue, determining that the eligibility under Sec. 404(a) turns on the offense not the defendant’s conduct. Therefore, the defendant’s motion for reconsideration is granted, finding that he is eligible for a reduced sentence under the Fair Sentencing Act.”

United States v. McDonald, 2019 U.S. App. LEXIS 36661 (8th Cir. Dec. 11, 2019)

United States v. Steptoe, Case No. 4:02-CR-688 (SD Tex., Nov. 6, 2019)

– Thomas L. Root

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

SENTENCING COMMISSION ISSUES CRACK RETROACTIVITY UPDATE

The Sentencing Commission last Friday issued a report on releases under the Fair Sentencing Act retroactivity granted by the First Step Act. Since First Step became law last December, the courts have granted 1,051 crack sentence reductions.

The breakdown by district shows Middle and Southern Florida, South Carolina and Virginia are the places to be. Those five districts accounted for about 29% of all grants. One third of the 94 districts contributed only  2.5% of the total, with 20 districts not granting a single motion.

What was missing from the USSC analysis was a figure on the number of motions denied, which would have provided a much clearer picture of any discrepancies among the districts in how the Fair Sentencing Act retroactive reductions were being applied.

The sentence reductions averaged 29 months, with the 5th Circuit courts averaging the best at 35.3 months and the 1st Circuit being the worst at 22.6 months. Over 91% of all defendants getting time cuts are black.

U.S. Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (June 7, 2019)

– Thomas L. Root

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

INTRACTABLE PROBLEMS LOOM ON FAIR SENTENCING ACT RESENTENCINGS

A good number of crack defendant resentencings have breezed through district courts since the First Step Act authorized the retroactive application of the 2010 Fair Sentencing Act (“FSA”) to people sentenced for crack prior to August 2010.

The concerns of a few dissident district judges, however, may be gaining traction, jeopardizing future FSA resentencings.

The problem is this: Just about all of the pre-FSA indictments alleged the defendant had “five or more” or “fifty or more” grams of crack. Back then, five or more bought a defendant a minimum 5 years, while 50 or more was good for a 10-year minimum. But what the indictment alleges is one thing. What the presentencing report says is something else altogether, and the PSR’s amount of drugs (used for setting the Guidelines range) is what the district court usually finds.

On FSA resentencings, some defendants have convinced courts that if the indictment said “five or more grams” of crack, for instance, their sentences should be based on five grams. Some sentences have fallen dramatically as a result.

Dan Blocker argued to his judge that when a defendant seeks an FSA sentence reduction, the relevant question is not how much crack was involved in the offense, but instead only how much was charged in the indictment.

Some other courts have grappled with this argument, but Dan’s court took it by the horns. In an interim decision, the district court complained Dan’s approach – the “indictment-controls” theory – “misreads the statute and is demonstrably inconsistent with Congress’s intent.” The district judge said the First Step Act specified that a sentence reduction is allowed only for a “covered offense,” that is, “a violation of a Federal criminal statute…” Violation of the statute is the criminal conduct, the court said, not the indictment. Thus, the court must follow the offense-controls theory, not the indictment-controls theory.

The court said the question is what sentence would have been imposed had the FSA been in effect when Dan sold the crack. The answer, the court held, does not turn on what the actual indictment charged, but rather on what it would have charged had the FSA governed the case. The court speculated that if the FSA had been in effect, Count 1 would have charged that the conspiracy involved 280 grams or more, not just 50, and other counts would have charged the higher amounts – 28 grams and 280 grams – listed in the FSA. “The only reason the actual indictment used the lower amounts,” the court said, “was that those were the amounts included in the statute at that time – the indictment tracked the statute.”

The higher amounts might have affected Dan’s decision to plead guilty, the court said, thus requiring a hearing to figure out what Dan might have done in response to what the indictment might have said.

If what the indictment in a pre-August 2010 crack said controlled resentencing, the court complained, “every crack defendant sentenced before the Fair Sentencing Act took effect would be eligible for a reduction…” and the First Step Act would “provide a windfall sentence reduction to pre-August 2010 defendants that people sentenced after 2010 would not get. “Congress could not have intended to treat crack defendants this much more favorably than powder defendants.

The so-called offense controls theory will almost certainly be appealed. Major appeals questions about retroactive FSA resentencings, even if resolved in the defendants’ favors, are likely to result in inconsistent circuit decisions, and could tie up resentencings for a year or better.

United States v. Blocker, 2019 U.S. Dist. LEXIS 79934 (N.D.Fla., Apr. 25, 2019)

– Thomas L. Root