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SCOTUS: § 2(a) of Fair Sentencing Act Modifies Statutory Penalties Only for Subparagraphs (A) and (B) of 21 U.S.C. § 841(b)(1)— the Mandatory-Minimum Provisions

by Douglas Ankney 

A unanimous Supreme Court of the United States (“SCOTUS”) held that § 2(a) of the Fair Sentencing Act modified the statutory penalties for only subparagraphs (A) and (B) of 21 U.S.C. § 841(b)(1), i.e., the mandatory-minimum provisions, not for subparagraph (C).

Tarahrick Terry pleaded guilty in 2008 to possession with intent to distribute an unspecified amount of crack cocaine in violation of 21 U.S.C. §§ 841(a), (b)(1)(C) (“Subparagraph (C)”). The district court determined Terry’s offense involved 3.9 grams of crack. However, the district court also determined Terry was a career offender under U.S.S.G. § 4B1.1(b). Because § 4B1.1(b) called for a longer sentence, Terry was sentenced to 188 months in prison under the Guidelines.

After the First Step Act of 2018 became law, Terry sought a sentence reduction. The U.S. District Court for the Southern District of Florida determined Terry was not eligible for relief and denied his motion. The Eleventh Circuit affirmed, and SCOTUS granted certiorari.

The Court observed that at the time of Terry’s conviction, 21 U.S.C. § 841(b)(1)(A)(iii) (“Subparagraph (A)”) provided a penalty of 10 years to life for possessing with intent to distribute at least 5,000 grams of powder cocaine or 50 grams of crack cocaine. And 21 U.S.C. § 841(b)(1)(B)(iii) (“Subparagraph (B)”) provided a penalty of 5 to 40 years for possessing with intent to distribute at least 500 grams of powder cocaine or 5 grams of crack cocaine. Subparagraph (C) provided a penalty of zero to 20 years for any unspecified amount of a schedule I or II drug.

However, Congress later passed the Fair Sentencing Act of 2010 (“FSA”) in response to accumulated evidence showing that the 100-to-1 ratio of powder cocaine to crack cocaine was indefensible and unwarranted. The FSA increased the minimum amount of crack cocaine necessary for conviction under Subparagraph (A) to 280 grams and increased the amount of crack cocaine necessary for conviction under Subparagraph (B) to 28 grams. The FSA did not amend Subparagraph (C).

SCOTUS noted that the statutory penalties under Subparagraph (C) were “exactly the same” both before and after the FSA. SCOTUS stated that the lack of change for Subparagraph (C) “is hardly surprising because the Fair Sentencing Act addressed ‘cocaine sentencing disparity’ … and subparagraph (C) had never differentiated between crack and powder offenses.”

Congress addressed the continuing issue of cocaine sentencing disparity for those sentenced before 2010 by passing the First Step Act of 2018, which made the statutory changes of the FSA retroactive. However, a defendant is eligible for relief under the First Step Act only if he was previously sentenced “for a covered offense.” § 404(b), 132 Stat. 5222. A “covered offense” is “a violation of a federal criminal statute, the statutory penalties for which were modified by” certain provisions of the FSA. § 404(a). “Statutory penalties” references the entire phrase “a violation of a Federal criminal statute.” United States v. Jones, 962 F.3d 1290 (11th Cir. 2020).

SCOTUS explained that the purpose of the FSA is to address the disparity between the minimum amounts of crack versus powder cocaine necessary to trigger the penalties of Subparagraph (A) and Subparagraph (B).

Because Subsection (C) specifies no particular amounts of either crack or powder cocaine, SCOTUS held that it is not “a covered offense,” and thus, Terry was ineligible for relief under the FSA.

Accordingly, SCOTUS affirmed. See: Terry v. United States, 141 S. Ct. 1858 (2021). 

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Terry v. United States



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