Tag Archives: sec 404

You Can’t Imagine What Never Was in Sec. 404 Resentencing, 10th Says – Update for July 1, 2021

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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

JCoulda210701ason 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.

lookback210701“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

Judicial Odds and Ends – Update for June 3, 2021

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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

odetobilliejoe210603We 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).

goyourownway210603The 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