by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that the U.S. District Court for the Northern District of Illinois abused its discretion when it failed to exercise its discretion after erroneously determining Montrell McSwain was ineligible for relief under § 404(b) of the First Step Act of 2018 (“FSA”).

In 2007, McSwain was sentenced on convictions that included conspiring to distribute and to possess with intent to distribute more than one kilogram of heroin and more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1). Because McSwain had a prior cocaine conviction under an Illinois statute, he was subjected to a 20-year mandatory minimum under 21 U.S.C. § 841(b)(1)(C). Ultimately, the district court sentenced McSwain to an aggregate term of imprisonment of 300 months that included the 20-year mandatory minimum.

A few years later, Congress passed the Fair Sentencing Act of 2010, which reduced the amount and kind of punishment for cocaine base convictions. But the Fair Sentencing Act did not apply to McSwain because he had been convicted before it became effective.

In 2018, Congress passed the FSA, which made it possible for defendants like McSwain to be resentenced as if the relevant provisions of the Fair Sentencing Act of 2010 had been in effect at the time of their sentencing. In 2019, McSwain moved for relief under § 404 of the FSA.

While his motion was pending, the Seventh Circuit decided United States v. Ruth, 966 F.3d 642 (7th Cir. 2020), which held that the Illinois statute covering positional isomers of cocaine (the same statute under which McSwain’s prior cocaine conviction was obtained) was broader than the federal definition of cocaine and could not serve as a predicate offense to support a mandatory minimum sentence under § 841(b)(1)(C). The district court denied McSwain’s motion, reasoning that McSwain was “not legally eligible for relief ... because he was specifically found guilty of a quantity of heroin that qualified him for a mandatory minimum sentence” and “heroin is not part of the relief now available under the Fair Sentencing Act.” The district court’s order did not mention Ruth. McSwain appealed.

The Court observed that § 404(b) of the FSA states that “[a] court that imposed a sentence for a covered offense may, on motion of the defendant, ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ... were in effect at the time the covered offense was committed.” A “covered offense” is defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act ... that was committed before August 3, 2010.” § 404(a).

The Court explained that sentence reduction under the FSA is a two-step inquiry. A district judge must first determine whether a defendant is eligible for relief under § 404. United States v. Hudson, 967 F.3d 605 (7th Cir. 2020). If the defendant is eligible, the district court then must undertake analysis to determine whether it should reduce the sentence and, if so, the extent of any reduction. Id. Whether to reduce the sentence is entirely left to the discretion of the district court. United States v. Corner, 967 F.3d 662 (7th Cir. 2020).

In the instant case, the Court stated that the rule governing the interplay between the FSA and multi-drug conspiracies was not firmly established; however, when a defendant has been sentenced for two crimes—only one of which was covered by the FSA—“a district judge has discretion to revise the entire sentencing package.” United States v. Bible, 13 F.4th 647 (7th Cir. 2021). The Court looked to emerging case law from the Second, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits that show defendants sentenced for both covered and non-covered offenses are eligible for relief under the FSA. (See opinion for supporting citations from those circuits.) The Seventh Circuit “do[es] not create conflicts among the circuits without strong cause.” Mayer v. Spanel Int’l Ltd., 51 F.3d 670 (7th Cir. 1995).

With respect to statutory minimums, “a district court ruling on a § 404(b) motion ... must begin by recalculating the statutory minimum and maximum that would have applied had §§ 2 and 3 of the Fair Sentencing Act been in effect at the time the movant was originally convicted.” United Stated v. Fowowe, 1 F.4th 522 (7th Cir. 2021). However, while a district court is authorized to consider intervening case law when reviewing a § 404(b) motion, the court is not required to apply intervening case law when exercising its discretion to reduce a defendant’s sentence. Id.

In the instant case, because the district court had erroneously concluded McSwain was ineligible for relief, it failed to exercise its discretion and undertake further analysis to determine whether to reduce McSwain’s sentence. A court’s failure to exercise its discretion is an abuse of that discretion. Corner. But while the district court may apply the intervening Ruth holding (meaning the 20-year mandatory minimum would no longer apply to McSwain), it was not an abuse of discretion if it failed to do so.

Accordingly, the Court vacated the district court’s judgment and remanded for further proceedings. See: United States v. McSwain, 25 F.4th 533 (7th Cir. 2022). 

Writer’s note: In United States v. Concepcion, 991 F.3d 279 (1st Cir. 2021), the U.S. Supreme Court granted certiorari at 142 S. Ct. 54 (2021), to answer whether a district court “may” (discretionary) or “must” (mandatory) consider intervening legal and factual developments when deciding if it should impose a reduced sentence under the FSA.

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