Fourth Circuit Clarifies How to Bring a First Step Act Motion Applying the Fair Sentencing Act
by Dale Chappell
The U.S. Court of Appeals for the Fourth Circuit held on November 20, 2019, that a less familiar provision of 18 U.S.C. § 3582 is the proper vehicle for bringing a motion for relief under the First Step Act, rejecting the district court’s conclusion that First Step Act motions must be brought under the same provision dealing with retroactive guideline amendments. The decision provides guidance on how courts are to apply the First Step Act to prisoners convicted of crack cocaine-related offenses.
The case came before the Court when Daniel Wirsing filed a motion to reduce his sentence under the First Step Act’s retroactive application of the Fair Sentencing Act of 2010 (“FSA”). Wirsing was sentenced back in 2008 to over 15 years in prison after he pleaded guilty to possessing 16 grams of crack cocaine. However, he stipulated for sentencing that the total amount of crack he possessed in the offense was just over 60 grams. That put Wirsing in the highest statutory range under 21 U.S.C. § 841(b), which at the time was triggered by more than 50 grams of crack.
When the FSA was passed, it lowered the statutory penalty range for crack offenses by raising the amount of crack needed to trigger the stiffer sentences. It also lowered the guideline range for crack, getting rid of the 100-to-1 ratio after Congress admitted that crack wasn’t more dangerous than powder cocaine.
But Wirsing couldn’t get relief under the FSA. First, he was a career offender and therefore not sentenced under the crack guideline that was lowered by the FSA; he was sentenced under the career offender guideline. He was also sentenced before August 3, 2010, the date the FSA was enacted—only those sentenced after that date could get relief under the FSA.
However, the First Step Act addressed those barriers to relief. Under the Act, a court may reduce a crack sentence imposed under § 841(b) “as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” A “covered offense” is one under a statutory penalty that was modified by the FSA for an offense committed before August 3, 2010.
This fit Wirsing’s case, and the Government agreed he qualified for relief under the First Step Act. Nevertheless, the district court denied his motion. Judge John Preston Bailey of the Northern District of West Virginia recognized that while the First Step Act was “devoid of direction” on which vehicle to use for relief, he determined that it seemed logical” § 3582(c)(2), dealing with retroactive guideline amendments, would be the proper vehicle under the First Step Act.
Relief under § 3582(c)(2), however, can only be obtained if the guideline amendment lowers the actual guideline used at sentencing. Because Wirsing stipulated to 60 grams of crack at sentencing, the district court said, his guideline range would not be lower today, so the court denied his motion.
On appeal, Wirsing argued that his statutory range changed under § 841(b), because he was only charged with possessing 16 grams of crack. The Fourth Circuit agreed. Joining the majority of courts to have addressed this question, the Court held that it is the amount of crack charged that counts for First Step Act relief, not the total amount found for sentencing purposes.
The bigger question, though, was what vehicle should be used to bring a motion for First Step Act relief. Under § 3582(c), a court may not modify a sentence imposed except in two situations. Under § 3582(c)(1)(B), a court may modify a sentence if “expressly permitted by statute.” Under § 3582(c)(2), a court may modify a sentence “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
The district court’s applying § 3582(c)(2) to Wirsing “failed to account for a key distinction between the Fair Sentencing Act,” the Court said. The First Step Act expressly permits a court to modify a sentence, it noted. It says that a sentencing court may reduce a sentence as if the FSA were in effect at the time of the original sentencing. Thus, “on its face, the First Step Act allows the retroactive application of the modifications to penalties that Congress enacted in the Fair Sentencing Act,” the Court concluded.
While the retroactive guideline amendment under the FSA indeed applied under § 3582(c)(2) dealing with retroactive guideline amendments, “[t]he First Step Act thus fits under the narrow exception to finality provided by § 3582(c)(1)(B),” the Court explained, “because it expressly permits the court” to do so.
The Court then defined who gets relief under the First Step Act: “All defendants who are serving sentences for violations of 21 U.S.C. § 841(b)(1)(A)(iii) and (B)(iii), and who are not excluded pursuant to the expressed limitations in section 404(c) of the First Step Act, are eligible to move for relief under the Act.” And this is done by a motion under § 3582(c)(1)(B), the Court instructed.
Accordingly, the Court reversed the district court’s denial of Wirsing’s First Step Act motion and remanded for the sentencing judge to “consider” whether to impose a reduced sentence under the Act. See: United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019).
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Related legal case
United States v. Wirsing
| Year | 2019 |
|---|---|
| Cite | 943 F.3d 175 (4th Cir. 2019) |
| Level | Court of Appeals |
| Appeals Court Edition | F.3d |
