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Tenth Circuit: Prisoner Convicted of Covered Drug Offense but Sentenced to Mandatory Life Sentence Via Cross Reference for Murder Under Pre-Booker Guidelines Has Standing to Request First Step Act Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that a prisoner convicted of a covered drug offense but who was sentenced to a mandatory life sentence via a cross reference for murder under the U.S. Sentencing Guidelines (“Guidelines”) in effect before United States v. Booker, 543 U.S. 220 (2005) (making Guidelines “effectively advisory” for cases finalized after January 12, 2005), has standing to request a sentence modification under the First Step Act of 2018 (“FSA”).

Ebon Sekou Lurks was a confidential informant assisting a drug task force with gathering information on Joshua Price, Jr. Price allegedly learned that Lurks was a confidential informant, and a week later, Lurks was murdered. When Price’s residence was searched, police found, inter alia, a gun and Price’s tennis shoes stained with blood that had “a high probability” of belonging to Lurks.

In 1998, Price was charged with 21 counts of cocaine and firearms-related offenses, but he was not charged with Lurks’ murder. A jury convicted Price of the drug and firearms related offenses. At sentencing, the U.S. District Court for the Eastern District of Oklahoma found by a preponderance of the evidence that Price killed Lurks and applied the cross reference for first-degree murder under Guidelines § 2D1.1, which states: “If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate, if the resulting offense level is greater than determined under this guideline.”

The district court sentenced Price to terms that included life on one count of conspiracy to distribute cocaine; life for each of the six cocaine distribution convictions (including the murder cross reference); and 120 months for possession of firearms with all terms running concurrently. On direct appeal, the Tenth Circuit concluded that Price “should have been sentenced under § 841(b)(1)(c), which provides for a maximum sentence of 20 years for each of [his] seven narcotics convictions” because the question of drug quantity had not been presented to the jury. However, the court also held that Price was not entitled to relief because the district court would be required to run the drug conviction sentences consecutively, which had the practical effect of a life sentence.

In 2019, Price moved for a sentence reduction under the FSA. The district court reasoned that Price’s sentencing range would not change because his life sentence was driven by the first-degree murder cross reference. Consequently, since Price’s motion would not result in any sentence reduction, the court ruled that he lacked standing to move for a reduction under the FSA. Price appealed.

The Court observed “Congress passed the Fair Sentencing Act of 2010 to reduce the disparity in treatment of cocaine base and powder cocaine offenses. Congress made the Fair Sentencing Act apply retroactively for these offenses when it passed the [FSA].” An offender is eligible for relief under the FSA only if he previously received “a sentence for a covered offense.” Terry v. United States, 141 S. Ct. 1858 (2021). An offender with an eligible conviction has standing to challenge a sentence under the FSA “[a]s long as it is possible for the court to grant some actual [sentence] reduction.” United States v. Mannie, 971 F.3d 1145 (10th Cir. 2020).

If reducing an otherwise eligible offender’s sentence under the FSA doesn’t have the effect of actually reducing the offender’s length of incarceration, then the court cannot redress the offender’s injury under the FSA. Consequently, “If a court cannot redress an offender’s injury, then the offender does not have standing, a live controversy is not present, and the court does not have jurisdiction.” Mannie. The Court explained that in Mannie the defendant had a conviction for a covered offense under the FSA but lacked standing because he had concurrent sentences with only one of the offenses eligible for a reduction. Because a reduction of that sentence would not reduce the defendant’s length of incarceration, the Mannie Court ruled he did not have standing. Id.

In the instant case, Price’s cocaine convictions were covered offenses under the FSA, so he could obtain a sentence reduction only if the Guidelines do not require a mandatory life sentence for his murder cross-reference. At the time of Price’s sentencing, the Guidelines were mandatory, and the district court lacked discretion to impose a shorter sentence. But in Booker, the Supreme Court declared the Guidelines to be “effectively advisory.” However, Booker applies only to cases finalized after January 12, 2005. Id. Thus, the Court explained that resolution of Price’s appeal turns on this question: Do the now-advisory Guidelines mandate a life sentence for Price during FSA sentence modification proceedings?

The Court stated that three subsections of the sentencing-modification statute,18 U.S.C. § 3582, are relevant in answering the question and thereby resolving the case: (1) § 3582 (c)(1)(A) (compassionate release); (2) § 3582 (c)(2) (retroactive Guidelines amendments); and (3) § 3582 (c)(1)(B) (FSA) are relevant in answering that question and thereby resolving the case.

The Court stated that a district court’s sentencing discretion — at both initial sentencing and at sentence-modification hearings — is restricted “only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.” Concepcion v. United States, 142 S. Ct. 2389 (2022). In Concepcion, the Supreme Court observed that § 3582(c)(2) limits the district court’s discretion by allowing only those sentence reductions that are consistent with applicable policy statements.

But the Court observed that while § 3582(c)(1)(A) and (c)(2) explicitly require that a sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission,” the FSA — operating through § 3582(c)(1)(B) — does not. United States v. Brown, 974 F.3d 1137 (10th Cir. 2020). Therefore, no policy statements from the Sentencing Commission limit the district court’s discretion when considering a sentence reduction under the FSA, according to the Court.

As the Supreme Court stated: “Nothing in the text and structure of the [FSA] expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.” Concepcion. District courts may vary below the Guidelines during FSA sentence hearings. Id.

The Court concluded that the now-advisory Guidelines do not require the district court to impose a mandatory life sentence under the first-degree murder cross reference and that the district court has discretion to impose a lesser sentence. Thus, the Court ruled that Price has a redressable injury and therefore has constitutional standing. Mannie.

Accordingly, the Court reversed and remanded for reconsideration consistent with its opinion. United States v. Price, 44 F.4th 1288 (10th Cir. 2022). 

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