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A Night To Remember

First Circuit: Sentence Imposed Under 21 U.S.C. § 841(a)(1), (b)(1)(c) Is ‘Covered Offense’ Under § 404 of First Step Act

The U.S. Court of Appeals for the First Circuit held that a conviction for violation of 21 U.S.C. § 841(a)(1) is a “covered offense” under § 404 of the First Step Act where the defendant was sentenced under 21 U.S.C. § 841(b)(1)(c).

In January 2007, Carl Smith was found guilty of two counts of distributing crack cocaine and one count of distributing powder cocaine, all in violation of 21 U.S.C. § 841(a)(1). The presentence investigation report attributed to Smith a total of 1.69 grams of crack cocaine and 3.36 grams of powder cocaine. Because these amounts were below what was required for a mandatory minimum sentence, Smith was sentenced under subsection (b)(1)(c). However, the U.S. District Court in New Hampshire determined Smith was a “career offender” and sentenced him to 210 months.

In August 2010, President Obama signed into law the Fair Sentencing Act, which raised the crack-cocaine threshold quantities for triggering mandatory-minimum sentences. Prior to the passage of the Fair Sentencing Act, § 841(b)(1)(A)(iii) imposed a minimum sentence of 10 years imprisonment if the defendant was convicted of an offense involving 50 grams or more of crack-cocaine (aka cocaine base). The Fair Sentencing Act increased the minimum threshold amount to 280 grams. Similarly, the Fair Sentencing Act increased the threshold amount of crack-cocaine from 5 grams to 28 grams before a mandatory minimum sentence of five years had to be imposed under § 841(b)(1)(B)(ii). But none of these modifications applied to sentences imposed before President Obama signed the Fair Sentencing Act into law. Dorsey v. United States, 567 U.S. 260 (2012).

Then in December 2018, President Trump signed the First Step Act into law. The First Step Act permits defendants convicted of a “covered offense” to seek retroactive application of the Fair Sentencing Act for sentences imposed prior to August 2010. First Step Act of 2018, Pub. L. No. 115-391 § 404, 132 Stat. 5194, 5222 (“§ 404”). Smith moved in April 2019 for a sentence reduction under § 404.

The Government opposed the motion, arguing that Smith’s crimes did not involve a quantity of drugs that met the threshold requirements of either § 841(b)(1)(A)(iii) or § 841(b)(1)(B)(ii). Consequently, he was sentenced under § 841(b)(1)(c), which is not a “covered offense” as defined by § 404. The district court agreed and denied Smith’s motion. Smith appealed.

The First Circuit observed § 404 provides that: “(a) DEFINTION OF COVERED OFFENSE. – In this section the term ‘covered offense’ means a violation of a Federal criminal statute, the statutory penalties for which were modified by a section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372), that was committed before August 3, 2010.”

The Fourth, Fifth, Sixth, and Eighth Circuits have determined the phrase “the statutory penalties for which were modified” in § 404(a) apply to the term “Federal criminal statute” and not to the term “violation.” (See opinion for listing of authorities cited from those Circuits.) The First Circuit concurred, explaining: “With no hint of an argument by the government or the district court that we should hold otherwise, we will assume that this case law [of the foregoing Circuits] is correct.” This meant eligibility for relief is determined by the defendant’s statute of conviction and not by the defendant’s “violation” or “actions” that transgressed the statue.

The Court then determined that “Federal criminal statute” encompassed all of § 841 and not merely particular subsections of § 841. The headings to § 841 support this determination. Section 841(a)’s heading reads: “Unlawful acts.” Section 841(b)(1)’s heading reads: “Penalties.” Section 841(a) is the “Federal criminal statute” Congress had in mind when writing § 404(a), and § 841(b)(1)’s “Penalties” are what Congress had in mind when writing “statutory penalties for which were modified,” the Court concluded.

Section 841(b)(1)(c) provides a penalty not to exceed 20 years’ imprisonment for convictions involving a quantity of drugs less than the minimum amounts for triggering mandatory sentences in other subsections of § 841. At the time of Smith’s conviction, the minimum amount of crack-cocaine required to trigger a mandatory minimum sentence was 5 grams. But the Fair Sentencing Act raised that to 28 grams. Consequently, Smith was convicted of violating a “Federal criminal statue, the statutory penalties for which were modified by … the Fair Sentencing Act” or a “covered offense.”

Related legal case

United States v. Smith

 

 

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