Archive | First Step Act of 2018

Monday, June 8th, 2020

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction for a felony drug offense” for purposes of the recidivism enhancement in 21 U.S.C. § 851 under Taylor’s now-familiar categorical approach. This is so because, as the Court previously held in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), this New York law (1) is indivisible and (2) regulates a broader range of controlled substances than the analogous federal drug schedule. In particular, while § 220.31 criminalizes the sale of HCG (a pregnancy hormone), federal law does not. And because fifth-degree sale is indivisible, it is irrelevant that court documents show …


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Saturday, June 6th, 2020

Eligibility for First Step Act relief depends on the statutory offense for which a defendant was sentenced, not the “actual conduct.”

The First Step Act of 2018 authorizes district courts to make a discretionary decision about whether and how to reduce a defendant’s sentence, but only if the defendant was sentenced for a “covered offense.” The Act defines a “covered offense” 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 of 2010 . . ., that was committed before August 3, 2010.”

The question in United States v. Davis, No. 19-874 (2d Cir. June 5, 2020) (Katzmann, Wesley, and Bianco), was whether Davis was originally sentenced for a “covered offense,” in which case he was eligible for a sentencing reduction. The defendant said he was sentenced for a “covered offense” because he had been convicted and sentenced for conspiring to distribute at least 50 grams of crack cocaine, in a violation of 21 U.S.C. …


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Thursday, April 30th, 2020

Examining the scope of crack resentencings under the First Step Act

Last week we highlighted the Second Circuit’s decision in United States v. Holloway, No. 19-1035, holding that a motion for a sentence reduction under Section 404 of the First Step Act of 2018 is governed by 18 U.S.C. § 3582(c)(1)(B), not § 3582(c)(2).

In United States v. Chambers, No. 19-7104, 2020 WL 1949249 (4th Cir. Apr. 23, 2020), the Fourth Circuit recently reached the same conclusion in addressing a slightly different issue. In Chambers, the district court erroneously applied a career offender enhancement in a First Step Act crack resentencing, because the career offender enhancement had been applied at the original sentencing. Overturning this decision, the Fourth Circuit holds that the “First Step Act does not constrain courts from recognizing Guidelines errors” and that “any Guidelines error deemed retroactive … must be corrected in a First Step Act resentencing.”

Although this is a somewhat narrow issue, the …


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Categories: career offender, First Step Act of 2018

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Compassionate Release and Covid-19

Numerous district courts in the Second Circuit and across the country have used the expanded compassionate release provision of the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), to release at-risk defendants from custody during the Covid-19 crisis. These courts have found that the ongoing Covid-19 pandemic, combined with underlying medical issues that increase a defendant’s risk from the virus, can constitute “extraordinary and compelling” reasons to reduce the defendant’s sentence and order release from custody.

The national Federal Defenders website and Douglas Berman’s Sentencing Law and Policy blog are two great sources of information about these compassionate release grants.

Here I wanted to highlight a few notable decisions within the Second Circuit related to this issue.

In United States v. Gerard Scparta, No. 18 Cr. 578 (AJN), ECF Dkt. 69 (S.D.N.Y. Apr. 19, 2020), Judge Nathan granted a compassionate release motion of a 55-year old defendant who suffers from …


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Friday, June 21st, 2019

Favorable decision in a First Step Act case, concerning the defendant’s eligibility for relief and the nature of the proceeding under the Act: United States v. Rose, No. 03-CR-1501, _F.3d_, 2019 WL 2314479 (S.D.N.Y. May 24, 2019)

Section 404 of the First Step Act of 2018,  Pub. L. No. 115-391, 132 Stat. 5194 (2018),  empowers district courts to “impose a reduced sentence” on people who were convicted of certain cocaine base (crack cocaine) offenses before August 3, 2010, when the Fair Sentencing Act of 2010 was enacted. It makes retroactive — to defendants sentenced before August 3, 2010 — the provisions of the Fair Sentencing Act that raised from 50 to 280 grams, the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(A); and raised from 5 grams to 28 grams the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(B).

The two movants in  United States v. Rose, No 03-CR-1501,  __F.3d__,   2019 WL 2314479 (S.D.N.Y. May 24, 2019) (VEC), had been convicted at a trial, in 2005, of conspiracy to distribute 50 grams or more of crack …


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Categories: fair sentencing act, First Step Act of 2018

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Tuesday, May 21st, 2019

Favorable Finding on First Step Act Feature

 

The First Step Act of 2018, Pub. L. 115-391, allows judges to now “impose a reduced sentence” on people sentenced before August 3, 2010, for certain offenses involving 5 grams or more of crack cocaine.  There’s been a lot of litigation on the Act — yielding over 200 written decisions nationally so far — with a number of bad rulings from courts relying on pro se pleadings or meritless arguments from the government.  Judge Allyne Ross, of the Eastern District of New York, recently addressed both and issued a good ruling for people serving (or not) long crack sentences.

In United States v. Miles, the defendant had been sentenced in 2009 for a 50-gram crack offense that then carried a mandatory minimum of 10 years, which Judge Ross imposed.  After passage of the First Step Act, Miles moved pro se for a reduced sentence given that, per the …

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