Friday, April 24th, 2020

Second Circuit: Reduced Guidelines Range Not A Prerequisite For First Step Act Relief

In United States v. Holloway, No. 19-1035 (available here), the Circuit (Nardini, joined by Parker and Livingston), held that a motion for a sentence reduction pursuant to Section 404 of the First Step Act of 2018 is governed by 18 U.S.C. § 3582(c)(1)(B), not § 3582(c)(2). Consequently, the limitations in U.S.S.G. § 1B1.10 do not apply, and a defendant need not show that application of the Fair Sentencing Act of 2010 would reduce his Guidelines range in order to demonstrate his eligibility for First Step Act relief.

Here, the defendant was convicted of a 21 U.S.C. § 841(b)(1)(A) crack offense with a prior felony information, resulting in a statutory sentencing range of 20 years to life. Because he was a career offender, his Guidelines range was 262–327 months. In light of the defendant’s cooperation, the district court sentenced him, pre-Fair Sentencing Act, to 168 months. After the passage of the First Step Act, the defendant moved for a § 404 reduction. His offense (possessing with intent to distribute 50-plus grams of crack) now supported only a § 841(b)(1)(B) violation, so his statutory sentencing range dropped to 10 years to life. However, because he was a career offender, his Guidelines range was unchanged. Accordingly, the district court (Siragusa, WDNY) determined that he was ineligible for relief and denied the motion.

The Circuit vacated and remanded, holding that a First Step Act motion “is not properly evaluated under [§ 3582(c)(2)],” which incorporates the limitations in § 1B1.10, among them the requirement that a defendant’s Guidelines range have been reduced in order to make him eligible for a sentence reduction. Slip op., at 17. Rather, § 3582(c)(1)(B) governs. “This section contains no requirement that the reduction comport with [§ 1B1.10] or any other policy statement, and thus the defendant’s eligibility turns only on the statutory criteria” in § 404. Slip op., at 18. Those criteria are that a defendant have been sentenced for a crack offense before the passage of the Fair Sentencing Act, that the sentence not previously have been imposed or reduced in accordance with the Fair Sentencing Act, and that a prior First Step Act motion not have been denied on the merits. Slip op., at 7-8.

Two other points in Holloway merit discussion. First, although the defendant here had completed his term of imprisonment, the appeal was not moot because the district court could reduce him term of supervised release—and, indeed, the Fair Sentencing Act had reduced the mandatory minimum term of supervision from 10 years to eight. Second, the Circuit reserved the question whether eligibility for First Step Act relief turns on the statute of conviction (as most courts have held) or on the defendant’s actual offense conduct (as the government has argued). See slip op., at 14 n.4. Here, the defendant’s offense conduct involved 66 grams of crack, below the amended § 841(b)(1)(A) threshold, so resolving this question was unnecessary.

The takeaways for practitioners are:

(1) A reduced Guidelines range is not a prerequisite for First Step Act relief. The most common categories of defendants whose Guidelines ranges were not reduced by operation of the Fair Sentencing Act are career offenders and those whose offenses involved 25.2-plus kilograms of crack, still enough to place them in the highest offense level on the drug table. See U.S.S.G. § 2D1.1(c)(1).

(2) If a defendant has completed his term of imprisonment, he can still move under the First Step Act for a reduction in his term of supervised release. Indeed, Holloway suggests that the lost opportunity for a reduced term of imprisonment might support a reduction in the term of supervision. Slip op., at 11-12.

(3) Holloway casts serious doubt on the government’s argument that § 404 proceedings are as limited as § 3582(c)(2) proceedings. To be sure, Holloway does not hold that § 404 proceedings are plenary resentencings, but it does reject the statutory basis for the government’s analogy to drugs-minus-two resentencings. Accordingly, defendants should continue to argue for as broad a resentencing as is desirable in a particular case.

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Categories: 3582(c)(2), First Step Act
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