Eleventh Circuit Announces Drug Offenses Involving Multiple Drugs Can Qualify as ‘Covered Offense’ Under First Step Act if Crack One of the Drugs
It was only one count in the federal indictment of conspiracy to possess with intent to distribute controlled substances but it was enough to get Otto Taylor a mandatory life sentence (later reduced to 30 years after the Supreme Court made the guidelines advisory). That single count encompassed both powder cocaine and crack cocaine, in amounts that set Taylor’s statutory sentencing range for either drug at 10-years-to-life in prison.
Almost 10 year after Taylor’s offense, the Fair Sentencing Act of 2010 (“FSA”) passed, increasing the amounts of crack needed to trigger the mandatory minimum sentences under 21 U.S.C. § 841. The FSA would have put Taylor’s crack offense in the lower statutory range under § 841(b)(1)(B), possibly entitling him to a reduced sentence. But the FSA wasn’t made retroactive to drug offenders, like Taylor, who were sentenced prior to August 2010.
When the First Step Act passed in 2018, making the FSA retroactive to all drug offenders sentenced before the FSA, Taylor filed for relief. The U.S. District Court for the Northern District of Georgia, however, denied his motion. Taylor’s drug offense was not a “covered offense” under the First Step Act, the court said, because of the powder cocaine amount, which kept his single drug count in the higher statutory range regardless of the crack amount. Since it wasn’t a covered offense, the court ruled it had no authority to hear Taylor’s motion, and he appealed.
The Court explained two things make up a “covered offense” under the First Step Act: (1) “a violation of a Federal criminal statute, the statutory penalties for which were modified by sections 2 or 3 of the [FSA],” and (2) the offense was committed before the FSA became effective on August 3, 2010.
The Court then discussed United States v. Jones, 962 F.3d 1290 (11th Cir. 2020), in which the Eleventh Circuit interpreted the meaning of the term “covered offense.” The Jones Court made it clear that a “defendant sentenced for a pre-2010 drug-trafficking conspiracy involving only crack cocaine has a ‘covered offense’ if the crack-cocaine element of his offense triggered the statutory penalties in § 841(b)(1)(A) or (B),” the Court noted. It added that “a drug-trafficking offense involving only powder cocaine would not be a covered offense.”
In the present case, the Court addressed the open question following Jones: “whether the First Step Act’s definition of a ‘covered offense’ covers a multidrug conspiracy offense that includes both a crack-cocaine element and another drug-quantity element.” The Court held “that it does.”
The Court stated that the answer to the question comes down to the language of § 841(b)(1), i.e., the penalties for the federal drug offense. While a multidrug conspiracy defendant is subject to only one sentence, “each drug-quantity element triggers corresponding statutory penalties, regardless of whether the offense includes one drug-quantity element or several,” the Court explained. So, the powder and crack cocaine each triggered a statutory penalty under § 841(b)(1) in Taylor’s case.
For example, “a movant who engaged in a conspiracy to distribute, say, 100 kilograms of powder cocaine and 10 grams of crack cocaine would be subject to the highest tier of penalties in the drug-trafficking statute based solely on the quantity of powder cocaine involved in the conspiracy,” the Court said. “But the statutory penalties for his offense also include the penalties triggered by the crack-cocaine element of the offense, regardless of whether those are the penalties that actually apply at sentencing.”
The Court explained that “[b]y conditioning eligibility on the movant’s offense, rather than on his actual conduct or the applicable sentencing range, the First Step Act casts a wide net at the eligibility stage.”
The question before the Court wasn’t whether Taylor should have received a reduced sentence but only whether he had a “covered offense” under the First Step Act to allow the district court to hear his motion. Because the crack did trigger a penalty provision that was modified by the FSA, the district court had authority to hear his motion, the Court concluded.
The Court reminded that the district court has” wide latitude” in granting relief under the First Step Act. The district court had “reluctantly” imposed Taylor’s sentence in an era when unfair crack sentences were the norm. “It is fair game for the district court to consider any information” in determining whether to grant a reduced sentence under the First Step Act’s retroactive application of the FSA, the Court instructed.
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United States v. Taylor
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