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Fourth Circuit Expands First Step Act’s ‘Covered Offense’ to All of Section 841

In 2009, Albert Woodson was sentenced to just under 13 years in federal prison for distributing 0.41 grams of crack cocaine. When the First Step Act was passed, he filed for retroactive application of the Fair Sentencing Act of 2010 (“FSA of 2010”), which lowered the threshold for crack sentences for each provision of 21 U.S.C. § 841(b)(1). However, the U.S. District Court for the Northern District of West Virginia ruled that since Woodson’s sentence was under § 841(b)(1)(C) and would have remained under the same penalty range, he didn’t qualify under the First Step Act.

On appeal, Woodson argued that the First Step Act modifies § 841(b)(1)(C), and his offense is thus a “covered offense” to qualify under the First Step Act. The Fourth Circuit agreed. Under 21 U.S.C. § 841(a), it is unlawful to manufacture, distribute, dispense, or even possess with intent to do so, a controlled substance like crack cocaine. The penalties for such an offense depends on the drug amount and falls under § 841(b)(1)(A), (B), or (C).

While the FSA of 2010 raises the threshold amount of crack cocaine for all three provisions of § 841(b)(1), the problem for Woodson was that his amount of crack cocaine stayed under § 841(b)(1)(C), both before and after the First Step Act made the FSA of 2010 retroactive to his case. Therefore, District Judge Irene M. Keeley held that because Woodson’s penalty provision under § 841(b)(1) didn’t change, he wasn’t eligible for First Step Act relief and denied his motion without reaching the merits of his claim.

But the Fourth Circuit found that Woodson did qualify under the First Step Act because his conviction was a “covered offense,” and the drug amount has nothing to do with it. “A defendant has committed a ‘covered offense’ – and is therefore eligible for a First Step Act reduction – if he was convicted under a statute the statutory penalties for which were modified by section 2 or 3 of the First Step Act,” the Court explained.

The Court’s reasoning was that it (and other courts) have considered (b)(1)(A) and (b)(1)(B) to have been “modified” by the FSA of 2010. Offenses falling under those provisions, the Court said, have been deemed “covered offenses” for the First Step Act. But the FSA of 2010 also changed (b)(1)(C), the Court noted. Prior to the FSA of 2010, any amount of crack less than 5 grams fell under (b)(1)(C); afterward, that amount went up to 28 grams. That, the Court said, was a “modification” of (b)(1)(C) to make any crack offense falling under it a “covered offense.”

The Court rejected the Government’s argument that Woodson’s statutory penalty range had to change in order for him to qualify under the First Step Act. “The relevant change for purposes of a ‘covered offense’ under the First Step Act is a change to the statutory penalties for a defendant’s statute of conviction, not a change to a defendant’s particular sentencing range as a result of the First Step Act’s modifications,” the Court explained. “The First Step Act shifted the entire sentencing scale for crack cocaine trafficking offenses.”

The Court said that even when a defendant stays within the same penalty range, such as in Woodson’s case, this might have an “anchoring effect on their sentence.” The Court explained: Woodson’s half gram of crack cocaine was 8.2 percent of the original upper end of (b)(1)(C)’s 5 grams. But after the FSA of 2010, that half gram was just 1.5 percent of the upper range of 28 grams. “A district court may find this shift relevant to determining the appropriate sentence for a particular offender,” the Court suggested.

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United States v. Woodson



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