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 cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and of possessing a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c). When the defendants were sentenced (in 2005), distribution of 50 grams or more of crack cocaine carried a mandatory minimum sentence of ten years, 21 U.S.C. § 841(b)(1)(A) (effective November 2, 2002 to March 8, 2006), but because each had a prior felony drug conviction, the mandatory minimum doubled to twenty years. Id. And the firearms offense carried a mandatory consecutive sentence of not less than five years, bringing the aggregate minimum prison term to twenty-five years. 18 U.S.C. § 924(c)(1)(A).
In addition, for purposes of calculating the defendants’ sentencing ranges under the United States Sentencing Guidelines, the original sentencing judge (now retired) found by a preponderance of the evidence that both defendants conspired to distribute 1.5 kilograms of crack cocaine. The judge sentenced both defendants to the 25-year mandatory minimum sentence.
Eligibility for relief under the First Step Act
The defendants moved for a reduced sentence under the First Step Act because, had they been sentenced after the enactment of the Fair Sentencing Act of 2010, their conspiracy offense would have been reduced to a violation of § 841(b)(1)(B) — instead of § 841(b)(1)(A) — and their mandatory minimum sentence would have been 10 years (for someone with a prior qualifying drug conviction), rather than 20 years.
The Government opposed the motions, arguing that the defendants “are not eligible for relief because their offense conduct involved more than 1.5 kilograms of crack cocaine.” Rose, 2019 WL 2314479 at * 2.
Judge Caproni rejected this argument. The court stated: “The Government argues that the Court should assess eligibility on the basis of Defendants’ actual conduct, rather than the statute of conviction. Under that approach, because [the original sentencing judge] found by a preponderance of the evidence that Defendants were responsible for 1.5 kilograms of crack cocaine, an amount which exceeds the revised 280-gram threshold, the ‘statutory penalties’ for Defendants’ conduct were not ‘modified’ by the Fair Sentencing Act. The Government’s approach misreads the text of the First Step Act, undermines the purpose of the Act, and is inconsistent with the decisions of the vast majority of courts that have decided this issue.” Id. at *3.
Applying rules of statutory construction, the court concluded that the text of §§ 404(a), (b) of the First Step Act “mak[e] clear that eligibility [for a reduced sentence] is determined by the statute underlying the defendant’s conviction and penalty, not the defendant’s offense conduct.” Rose, 2019 WL 2314479 at * 3; id. (discussing the Act’s text and the applicable principles of statutory construction). Moreover, any ambiguity must be resolved in favor of the defendants. Id. at *3. “Both the Fair Sentencing Act and the First Step Act have the remedial purpose of mitigating the unfairness created by the crack-to-powder cocaine ratio, and the statutes should be construed in favor of broader coverage.” Id.. at *4.
Thus, the court concluded that the defendants “are eligible for a reduced sentence under the First Step Act because they were each subjected to the mandatory minimum penalty set by 21 U.S.C. § 841(b)(1)(A)(iii), which was amended by the Fair Sentencing Act of 2010.” Id. at *5.
Nature of the sentence-reduction proceeding under the First Step Act
The court concluded that the First Step Act is not controlled by 18 U.S.C. § 3582(c). It explained: “the scope of a sentencing proceeding authorized by the First Step Act is not constrained by § 3582(c)(1)(B), to the extent it is applicable; nor would it be helpful, as some courts have done, to analogize to the other modification provisions under § 3582(c), which are subject to entirely different standards.” Id. at *6. The court concluded that the First Step Act authorizes judges to consider all the sentencing factors of 18 U.S.C. § 3553(a), including post-sentencing rehabilitation, under Pepper v. United States, 562 U.S. 476 (2011). See Rose, 2019 WL 2314479 at *5-*9 ; see id. at *7 (“Section 3553(a) is triggered whenever a district court impose[s] a sentence.”).
The Court exercises discretion to grant relief
Even when defendants are eligible for relief, § 404(c) provides that courts are not required to grant relief, saying: “Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” Here, the Government’s “argument against granting relief [was] that, had the Fair Sentencing Act of 2010 been in effect in 2005, the Government ‘undoubtedly … would have charged [the defendant] with 280 grams of crack, and the jury would have found him responsible’ for over 280 grams of crack cocaine.” Id. at *9. The court, however, held that it “cannot simply assume that the Government would have been successful in proving an indispensable element of a criminal offense.” Id.; see id. at *2 n.2 (“[T]his Court may not, as the Government suggests, presume or conclude that the jury would have found beyond a reasonable doubt that defendants were responsible for the greater quantity.”).
The defendants’ new aggregate mandatory minimum sentence, after application of the First Step Act, was 15 years: a 10-year minimum for the drug conspiracy count, plus a consecutive 5-year minimum on the § 924(c) count. The court sentenced one of the defendants to “to time served, which, as of the date of this Order, is the equivalent of 15 years, four months, and three days[.]” Id. at *9. It entered a judgment titled, “Amended Judgment in a Criminal Case.” See Docket No. 03-CR-1501-VEC-5, document number 415. This is noteworthy because some courts that have granted relief under the First Step Act have used the form for the modification of a sentence under § 3582(c). The court’s Amended Judgment in this case, therefore, further evidences its conclusion that proceedings under the First Step Act are not constrained by § 3582(c).
Regarding the other movant-defendant, because of his “abysmal prison disciplinary record.,” the court determined to hold his motion “in abeyance until September 19, 2019, when Mr. [Jason] Rose is due to re-appear before this Court.” Rose, 2019 WL 2314479 at *9.
- Eligibility for a sentence reduction under §§ 404(a) and (b) of the First Step Act turns on whether the penalties associated with the “statute of conviction” were reduced by the Fair Sentencing Act of 2010, regardless of any (higher) drug quantity found by the judge at sentencing. The same principle should apply to any stipulations about drug quantity in plea agreements.
- Motions under the First Step Act are not controlled by 18 U.S.C. § 3582(c).
- The only constraint on the extent of the sentence reduction the Judge may impose under the First Step Act is the statutory minimum. And the statutory sentencing factors of 18 U.S.C. § 3553(a) apply.
N.B.: The First Step Act also changed the definition of the kind of drug offense that qualifies for enhanced sentences if the Government files a prior felony information under 21 U.S.C. § 851. So check to be sure that the defendant’s prior drug offense still qualifies as a predicate drug offense under the current § 851.
Lastly, be mindful of the limitations of § 404(c), particularly its provision effectively permitting the defendant only one motion for a reduction of sentence under the First Step Act. Section 404(c) states: “No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits.”