Friday, May 7th, 2021

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” Section 404(a) 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.” The district court (Donnelly, EDNY) denied the motion, ruling that § 848(e)(1)(A) was not a “covered offense.”

The Circuit affirmed. Specifically, the Circuit rejected the argument that § 848(e)(1)(A) is a “covered offense” because it incorporates, as an element, a violation of § 841(b)(1)(A)—which unquestionably is a covered offense, as the Fair Sentencing Act increased from 50 grams to 280 grams the quantity of crack necessary to support a § 841(b)(1)(A) violation. The Circuit explained:

[A] violation of § 848(e)(1)(A) is a standalone, substantive offense that is distinct from the underlying drug crime. … Sections 2 and 3 of the Fair Sentencing Act make no mention of § 848(e)(1)(A), and they did not alter the statutory penalty range of 20 years to life in prison (or death) for drug-related murder. Section 848(e)(1)(A) itself, which remains unchanged, independently establishes that penalty range. Because Sections 2 and 3 of the Fair Sentencing Act did not modify the statutory penalties for [§] 848(e)(1)(A), a violation of that law is not a “covered offense” eligible for a sentence reduction under [§] 404(b) of the First Step Act.

The Circuit also rejected Gilliam’s backup argument for vacatur of his § 848(e)(1)(A) conviction, relying on the prior holding in United States v. Guerrero, 813 F.3d 462 (2d Cir. 2016), that the Fair Sentencing Act does not retroactively extinguish § 848(e)(1)(A) liability for pre-Act offenses.


Practitioners should note that the Supreme Court heard oral argument on May 4, 2021 in Terry v. United States, which presents the question whether a crack offense under 21 U.S.C. § 841(b)(1)(C) is a “covered offense”—an open question in the Second Circuit. A decision in Terry is expected by the end of June.


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