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Third Circuit Vacates Denial of First Step Act Relief Because District Court’s Failure to Expressly Identify Which § 841(b) Provision Supported Sentence Precludes Appellate Review

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit vacated the U.S. District Court for the Eastern District of Pennsylvania’s denial of Darryl E. Coleman’s motion for a sentence reduction under § 404(b) of the First Step Act of 2018 (“FSA”) because the District Court’s failure to expressly identify which provision of 21 U.S.C. § 841(b) grounded his conviction and sentence precluded appellate review.

Coleman was indicted in 1997 for supervising a conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and upon a jury’s finding of guilt, he was sentenced to life in prison. Neither the indictment nor the District Court specified which provision of § 841(b) grounded his conviction and life sentence.

Coleman subsequently filed a motion for a sentence reduction under § 404(b) of the FSA, arguing that he had been sentenced for a “dual-object conspiracy involving both crack and powder cocaine.” The Government opposed Coleman’s motion, asserting that he was ineligible for relief because he was not convicted of a crack offense. The District Court denied Coleman’s motion. While acknowledging the record’s numerous references to crack, the District Court “concluded that Coleman was ineligible for § 404(b) relief because he ‘was not … convicted of an offense involving crack cocaine.’” Coleman timely appealed.

Reviewing for clear error pursuant to United States v. Bentley, 49 F.4th 275 (3d Cir. 2022), the Court observed § 404(b) “of the First Step Act authorizes courts to reduce sentences for ‘covered offense[s]’ committed before the Fair Sentencing Act of 2010 was enacted…. A ‘covered offense’ is ‘a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act.’” § 404(A). The “violation” refers to a defendant’s “statute of conviction” and not to his actual conduct in committing the offense. United States v. Jackson, 964 F.3d 197 (3d Cir. 2020). Consequently, courts determine eligibility for relief under § 404(b) by focusing exclusively on the statutory elements of the crime of conviction. Id. The Court explained that the statute of conviction for a “§ 841(a)(1) violation – and a § 846 violation based on § 841 – is the ‘combination of’ § 841(a)(1) and a § 841(b) penalty provision.” United States v. Birt, 966 F.3d 257 (3d Cir. 2020).

Because Coleman’s conspiracy conviction subjected him to the “same penalties as those prescribed for” the predicate offense, § 846, he was eligible for a sentence reduction under § 404(b) only if his statute of conviction included a § 841(b) penalty provision that had been amended by the Fair Sentencing Act. But since “Coleman’s trial and sentencing record did not identify a penalty provision, the district court had to determine Coleman’s penalty provision.”

When the charging document fails to specify a § 841(b) penalty provision, courts look “to the whole record to determine whether the District Court clearly erred in identifying the penalty provision grounding Coleman’s statute of conviction.” United States v. Russell, 994 F.3d 1230 (11th Cir. 2021). This includes the charging document, the jury verdict or guilty plea, the sentencing record, and the final judgment. Id.

In Coleman’s case, his superseding indictment charged that Coleman and his codefendants processed “kilogram quantities of cocaine into cocaine base, also known as ‘crack.’” At trial, his jury was instructed that Coleman’s offenses involved “a Schedule II narcotic controlled substance known as cocaine base or crack.” Coleman’s presentence report stated that “some of the cocaine trafficked by the conspiracy was processed into crack for distribution.” At his sentencing hearing, the Government argued for the maximum base offense level of 38 because the conspiracy involved “one and a half kilograms or more” of crack. And on direct appeal, Coleman challenged the District Court’s finding that he was responsible for 1.5 kilograms of crack.

However, the record’s references to crack may have been in the context of “relevant conduct.” At sentencing, the “Guidelines required the [c]ourt to determine whether the drugs involved in the conspiracy were powder cocaine, crack, or both, as well as the amount of each, ‘regardless of whether the judge believed that [Coleman’s] crack-related conduct was part of the offense of conviction,’” according to the Court. That would mean Coleman’s conviction would be for a powder-cocaine violation under § 841(b)(1)(A)(ii) – an offense not covered by § 404(a) of the FSA – and his criminal conduct did not make him eligible for relief because a “covered offense” is the “violation of a Federal statute,” not the defendant’s conduct.

But in the present case, the District Court failed to identify Coleman’s possible penalty provision, i.e., § 841(b)(1)(A)(ii) or § 841(b)(1)(A)(iii) – neither of which are “covered offenses” under the FSA. Nor did the District Court “square its conclusion that Coleman was not convicted of a crack offense with the record evidence of crack.” Thus, the Court concluded that the District Court’s “failure to do so precludes us from reviewing its decision for clear error (or any other standard for that matter).”

Accordingly, the Court vacated the District Court’s order denying Coleman’s motion for a sentence reduction and remanded the case for further proceedings consistent with its opinion. See: United States v. Coleman, 66 F.4th 108 (3d Cir. 2023).  

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