Second Circuit: Multi-Object Drug Conspiracy Involving Crack and Other Drugs Eligible for First Step Act Relief
by Dale Chappell
A single federal drug offense involving both powder and crack cocaine is eligible for a reduced sentence under the First Step Act’s retroactive application of the Fair Sentencing Act of 2010 (“FSA”), even if the offense includes a non-qualifying drug, the U.S. Court of Appeals for the Second Circuit held. The decision aligns the Second Circuit with every other circuit to have addressed the issue and reverses its prior unpublished case to the contrary. See United States v. Spencer, 998 F.3d 843 (8th Cir. 2021); United States v. Winters, 986 F.3d 942 (5th Cir. 2021); United States v. Taylor, 982 F.3d 1295 (11th Cir. 2020); United States v. Gravatt, 953 F.3d 258 (4th Cir. 2020).
This appeal affected nine defendants but focused on Martell Jordan who was convicted by a jury in 2008 of a dual-object conspiracy to distribute five kilograms or more of powder cocaine and 50 grams or more of cocaine base (“crack”), under 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B), among other drug and firearm offenses. Jordan faced a minimum of 240 months and up to 293 months under the advisory Guidelines, with the sentencing court sentencing him to 30 years in prison. That sentence was later reduced to 254 months under Amendment 782’s retroactive changes to the drug sentencing table. See U.S.S.G., Supp. to App. C, Amend. 782.
In December 2018, Congress enacted the First Step Act, which, among other things, applies the FSA retroactively to people with crack offenses sentenced prior to the FSA. The FSA increased the amount of crack needed to trigger higher statutory penalties, but it didn’t apply retroactively to those sentenced before it was enacted. After the First Step Act remedied this, Jordan filed a motion for relief based on the FSA’s changes, but the U.S. District Court for the Western District of New York concluded it lacked the authority to grant relief because Jordan’s single offense included both powder (a non-qualifying drug) and crack (a qualifying drug).
On appeal, the Second Circuit acknowledged several other circuits have since held that a single offense involving both powder and crack cocaine was eligible for a reduced sentence under the First Step Act. The government also conceded as much. In a 30-page opinion, the Court took a moment to explain why this was the correct reading of the First Step Act.
A Multi-Object Drug Conspiracy
Is a ‘Covered Offense’
Under § 404 of the First Step Act, a sentencing court may reduce a sentence for a “covered offense” as if the FSA “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 [FSA].” As the Supreme Court recently concluded in Terry v. United States, 141 S. Ct. 1858 (2021), the FSA changed the statutory penalties for all crack offenders under §§ 841(b)(1)(A)(iii) and (b)(1)(B)(iii). Thus, any offense involving crack under those two subparagraphs is a “covered offense.”
The Second Circuit reasoned that Terry applies to Jordan’s case:
“An application of Terry’s approach here supports the conclusion that Jordan’s multi-object conspiracy offense (involving 50 grams or more of crack cocaine) is a ‘covered offense’ under Section 404 because the statutory penalty associated with the drug-quantity element of the crack cocaine object under 21 U.S.C. § 846 was undoubtedly modified by Section 2 of the [FSA]. To explain, Jordan’s conviction on the conspiracy count, as it related to the crack cocaine conspiracy object, included … a violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)—the last of which provides the statutory penalties for his violation under 21 U.S.C. § 846—given the jury’s finding that the conspiracy involved at least 50 grams of crack cocaine.”
That is, the fact that Jordan’s offense also involved powder cocaine, whose statutory penalties were not modified by the FSA, does not preclude him from being eligible for First Step Act relief.
Relief Was Available
Had Jordan been sentenced to the 20-year mandatory minimum for the offense, he would not have been eligible for First Step Act relief because there would have been no relief for the district court to give. But because his sentence was above the minimum—albeit by only 14 months—the district court still had the authority to reduce Jordan’s sentence. This fact also made Jordan’s multi-object conspiracy offense involving both powder and crack “eligible” under the First Step Act, according to the Court.
The Second Circuit’s Previous Decision on Multi-Object Conspiracies Is Wrong
The Court conceded that its earlier decision in United States v. Lott, 830 Fed. Appx. 365 (2d Cir. 2020), was “incorrectly decided.” In that unpublished decision, the Lott Court held in a case similar to Jordan’s that the addition of the powder cocaine took the single, dual-object conspiracy offense outside of First Step Act relief.
Thus, the Court held that a multi-object conspiracy offense based in part on crack cocaine, falling under §§ 841(b)(1)(A)(iii) or (b)(1)(B)(iii), is a covered offense rendering the offense eligible for relief under the FSA.
Accordingly, the Court vacated the denial of Jordan’s First Step Act motion and remanded with instructions for the district court to consider all of his crack offenses for relief under the First Step Act. See: United States v. Reed, 7 F.4th 105 (2d Cir. 2021).
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Related legal case
United States v. Reed
|Cite||7 F.4th 105 (2d Cir. 2021)|
|Level||Court of Appeals|
|Appeals Court Edition||F.4th|