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Tenth Circuit Announces Adoption of ‘Offense of Conviction Approach’ for Determining Sentence Reduction Under First Step Act § 404(b)

by Dale Chappell

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the District of Colorado erred in relying on the defendant’s underlying conduct, rather than his offense of conviction, to deny his motion for sentence reduction under the First Step Act § 404(b).

In 2007, Jason Broadway pleaded guilty and stipulated to possessing 487.82 grams of crack cocaine. He was sentenced to just under 22 years in prison as a career offender. When the First Step Act was passed in 2018, he filed a motion for relief claiming that had the Fair Sentencing Act of 2010 (“FSA”) been in effect at the time of his original crime, he would have been sentenced under a more lenient statutory provision. The FSA did not apply retroactively to those, like Broadway, who were convicted before its enactment. United States v. Brown, 974 F.3d 1137 (10th Cir. 2020).

But the First Step Act corrected that mistake and opened the door for Broadway to obtain a reduced sentence as if the FSA’s lower crack penalties were in effect at the time of his crime. However, the district court ruled that because he had stipulated to more than 280 grams of crack, he still “could have been” sentenced under the higher provision. That is, the 487.82 grams triggered 21 U.S.C. § 841(b)(1)(A)(iii) both before and after the FSA, so application of the FSA changed nothing, according to the court. It denied his motion, and he appealed.

On appeal, Broadway argued that the district court erred because it “tied a change in the statutory penalty range to his underlying conduct (responsibility for 487.82 grams of crack cocaine) rather than his offense of conviction (50 grams or more of crack cocaine).” Had the court applied his offense of conviction, § 841(b)(1)(B)(iii) would have been his statute of conviction post-FSA, which would have resulted in a lower base Guidelines range. The Tenth Circuit agreed with his position.

The Court explained that to resolve this legal question, it must determine what’s meant by to “impose a reduced sentence as if … the Fair Sentencing Act … were in effect at the time the covered offense was committed.” First Step Act § 404(b). The Court observed that the First Step Act “does not explain how to reduce a sentence ‘as if the Fair Sentencing Act were in effect.’” But the broader First Step Act together with the context surrounding § 404(b) “make the meaning of this statutory language clear,” according to the Court.

First, the Court noted that the primary purpose of the First Step Act is to remedy the disproportionately harsh sentences for crack versus powder cocaine. Brown. This means that § 404(b) “favors using the approach that yields the greater clemency,” the Court reasoned. Thus, the Court stated the foregoing supports the conclusion that courts use the “offense of conviction approach because it requires the sentencing court to start from the correct hypothetical guidelines range.”

Furthermore, the “offense of conviction approach” is correct given the realities of criminal proceedings under the extant statutory scheme, according to the Court. It explained: “The convictions of defendants charged with violating § 841(b)(1)(A)(iii) pre-Fair Sentencing Act were premised on at least 50 grams of crack cocaine, not 280. Their indictments charged at least 50 grams of crack cocaine, not 280. And their convictions only required a guilty plea to or proof beyond a reasonable doubt of at least 50 grams of crack cocaine, not 280. Thus, to rely on adefendant’s underlying conduct involving more than 50 grams of crack cocaine necessarily requires a First Step Act district court to engage in a counterfactual analysis of the course of action in the earlier proceeding.”

In the current case, the Court observed that the district court necessarily had to consider the following counterfactuals by relying on Broadway’s underlying conduct, rather than offense of conviction:

• “the government would have charged Broadway with possessing 280 grams or more of crack cocaine;

• the grand jury would have indicted Broadway for possessing 280 grams or more of crack cocaine;

• Broadway would have pleaded guilty or not guilty to possessing 280 grams or more of crack cocaine;

• Broadway would have entered into a plea agreement;

• Broadway would have stipulated to possessing 280 grams or more of crack cocaine in a plea agreement;

• Broadway would have bargained for a lower statutory penalty range based on a lower drug quantity in a plea agreement;

• Broadway would have gone to trial if charged with possessing 280 grams or more of crack cocaine;

• the government would have been able to prove beyond a reasonable doubt that Broadway possessed 280 grams or more of crack cocaine;

• Broadway would have been convicted by a jury or judge of possessing 280 grams or more of crack cocaine.”

In rejecting the “underlying conduct approach,” the Court reasoned that it requires too much “backward looking” speculation, as evidenced by the foregoing. In contrast, courts can easily determine “whether the Fair Sentencing Act modified a statutory provision, and then match up the offense’s minimum drug quantity with the amended statutory provision,” as is the case with the “offense of conviction approach,” the Court explained.

Therefore, the Court concluded that “prior to exercising its discretion … a district court should look to the minimum drug quantity associated with an eligible defendant’s offense of conviction, rather than his underlying conduct, to ‘impose a reduced sentence as if … the Fair Sentencing Act … were in effect at the time the covered offense was committed.’” § 404(b). The Court instructed that afterwards the district court “may exercise its discretion to determine whether to reduce a sentence, which may include consideration of the [18 U.S.C.] § 3553(a) sentencing factors and the defendant’s underlying conduct.”

Turning to the present case, the Court ruled that it was legal error for the district court decline to reduce Broadway’s sentence based on his underlying conduct of possessing over 280 grams of crack cocaine.

Accordingly, the Court reversed the district court’s denial of Broadway’s motion and remanded with instruction to reconsider the motion consistent with its opinion. See: United States v. Broadway, 1 F.4th 1206 (10th Cir. 2021). 

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