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D.C. Circuit Highlights Racial Disparity Concerns With First Step Act After District Court Erroneously Denies Relief

Atone White and Eric Hicks were both convicted of crack cocaine offenses almost 30 years ago and sentenced to life in federal prison without parole, under the old mandatory Guidelines. After the First Step Act of 2018 was enacted, making the Fair Sentencing Act of 2010 (“FSA”) retroactively applicable to their cases, they filed for relief in the district court. While the court found that White and Hicks had covered offenses under the First Step Act, it still denied their motions, saying that relief wasn’t “available” to them. The court explained this was because the amount of crack attributed to each of them would not have changed their Guidelines Sentencing Range (“GSR”), even after applying the FSA to them.

On appeal, the D.C. Circuit reviewed the district court’s interpretation of the First Step Act de novo and concluded that by adding the “availability” requirement, the court erred in denying relief in this. The Court also said that the district court ignored facts that leaned in favor of relief. “It is therefore important that they be given full and fair hearings on their claims to ensure that the goals of the Act are met,” the Court instructed.

The Anti-Drug Abuse Act of 1986 created harsh penalties for crack cocaine offenses, by making crack sentences 100 times worse than those for powder cocaine. Thus, 1 gram of crack equaled 100 grams of powder cocaine for sentencing purposes. After 25 years and thousands of crack sentences, Congress finally reduced that 100-to-1 ratio down to 18 to 10 by enacting the FSA.

Unfortunately, the FSA wasn’t retroactive to those who were sentenced prior to its enactment, leading some courts to call it “The Not Quite as Fair as it Could be Sentencing Act of 2010.” The First Step Act of 2018 finally made the FSA retroactive for those with covered offenses involving crack cocaine.

Under § 404(a) of the First Step Act, a “covered offense” means “a violation of a federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the [FSA].” Under § 404(b), a qualifying person would then be considered for a reduced sentence, “as if sections 2 and 3 of the [FSA] were in effect at the time the covered offense was committed.” Those sections of the FSA increased the amount of crack needed to fall under the different penalty provisions of 21 U.S.C. § 841(b).

Both White and Hicks were convicted of crack offenses under the first three penalty provisions of § 841(b), and then based on the total amount of crack found by the judge (which was permitted at the time), their GSR was established. The amounts ranged from fractions of a gram of crack up to several kilograms for each defendant. It was these amounts that the district court considered in denying First Step Act relief, saying the GSR wouldn’t have changed under the FSA.

The Court of Appeals, however, made it clear that this was wrong. “Whether an offense is ‘covered’ does not depend on the actual drug amounts attributable to a defendant,” the Court stated. “Rather, it depends only on whether the defendant was convicted of an offense with a statutory penalty range that the [FSA] altered,” according to the Court.

The Court therefore ruled that by declining to grant relief on the basis of actual drug amounts, the district court erred in denying relief under § 404. It was careful to point out that this was not about the district court’s discretion in granting relief but that the court “legally erred” in concluding it could not grant relief.

The Court of Appeals also took a moment to highlight the purposes of the FSA and First Step Act. In passing the First Step Act, “Congress also authorized the courts to provide a remedy for certain defendants who have borne the brunt of a racially disparate sentencing scheme,” it said. The Court cited statements by lawmakers who pushed for the First Step Act, like Sen. Corey Booker: “Making this fix in this bill alone will mean that thousands of Americans who have more than served their time will become eligible for release, and it addresses some of the racial disparities in our system because 90 percent of the people who will benefit from that are African Americans….”

White and Hicks both raised valid points about why they deserve relief, the Court noted, which the district court  ignored. This included their horrendous childhoods, their accomplishments in prison, and the support they have outside prison. Instead, the district court cited their crimes from over 30 years ago to negate the mitigating evidence they both provided. Without a fully developed record, the Court of Appeals said the district court’s conclusion “appears to rely on clearly erroneous evidence.”

The Court then made the following final statement: “Congress determined that persons who are eligible for sentence reductions under the First Step Act were likely victims of unfair and racially discriminatory treatment in our criminal justice system. Therefore, the affected defendants are serving sentences that Congress now deems unfair.”

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Related legal case

United States v. White



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