Issues
Does the First Step Act’s definition of a “covered offense” include violations of 21 U.S.C. § 841(b)(1)(C) because they constitute a violation of a federal criminal statute for which the Fair Sentencing Act has modified the statutory penalties?
This case asks the Supreme Court to interpret the meaning of “covered offense” under Section 404(a) of the First Step Act to determine which crimes fall under its definition, and thus, may be subject to retroactive reduced sentencing. Petitioner Tarahrick Terry pled guilty to possessing with the intent to distribute an unspecified amount of cocaine base (or “crack cocaine”) in violation of 21 U.S.C. § 841(b)(1)(C) in 2008. In 2010, Congress enacted the Fair Sentencing Act, which amended parts of 21 U.S.C. § 841 to adjust the difference in sentencing between crimes involving crack cocaine and those involving powder cocaine. In 2018, Congress enacted the First Step Act, which made the Fair Sentencing Act’s amendments retroactive. Terry, in support of vacatur, argues that violations of Section 841(b)(1)(C) are “covered offenses” under Section 404 of the First Step Act, based on the text of Section 404(a), as well as the statute’s design and history. Adam K. Mortara, as amicus curiae in support of the judgment below, argues that Terry’s offense is not a “covered offense” under Section 404(a) based on a proper construction of the statute and the meaning of the phrases “violation of a Federal criminal statute” and “statutory penalties.” The case has implications for future retroactive sentencing statutory amendments, as well as inmates currently in custody for low-level crack-cocaine offenses before Congress passed the Fair Sentencing Act of 2010.
Questions as Framed for the Court by the Parties
Whether pre-August 3, 2010, crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a “covered offense” under Section 404 of the First Step Act.
Facts
On March 11, 2008, a grand jury indicted Tarahrick Terry with three crimes: (1) being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §922(g)(1); (2) possessing with the intent to distribute an unspecified amount of cocaine base (or “crack cocaine”) in violation of 21 U.S.C. §841(b)(1)(C); and (3) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A). United States v. Terry (S.D. Fla. 2020) at 2. The United States then served an information upon Terry pursuant to 21 U.S.C. §851 stating its intention to pursue an increased sentence at trial based upon a prior felony drug conviction. Id. On September 22, 2008, Terry pled guilty to the second offense—possessing with the intent to distribute an unspecified amount of cocaine base (or “crack cocaine”)—in exchange for the United States’ dismissal of the other two offenses. Id. The United States District Court for the Southern District of Florida accepted the plea and adjudicated Terry guilty. Id.
The United States Probation Office issued a revised Presentence Investigation Report (“PSR”) stating that Terry’s indictment carried a statutory penalty of 0 to 30 years’ imprisonment and a minimum of 6 years’ supervised release, on the grounds that Terry was accountable for 3.9 grams of cocaine base. Id. at 2–3. The revised PSR also found that Terry qualified as a career offender under U.S.S.G. §4B1.1, and that his total offense levels and criminal history justified a guideline imprisonment range of 188 to 245 months. Id. at 3. On December 1, 2008, the District Court adopted the revised PSR’s factual findings and guidelines and sentenced Terry to 188 months’ imprisonment and a further 6 years of supervised release. Id. at 3. Terry did not appeal the conviction or the sentence. Id. at 3.
In 2010, Congress enacted the Fair Sentencing Act, which amended parts of 21 U.S.C. § 841(b)(1) and 960(b) to distinguish sentencing between crimes involving crack cocaine with those involving powder cocaine. United States v. Terry (11th Cir. 2020) at 2. The Fair Sentencing Act changed the quantity of crack cocaine that triggered a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) from 50 grams to 280 grams, and the quantity of crack cocaine that triggered a 5-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B) from 5 grams to 28 grams. Id. at 3. The Act’s amendments were not retroactive, and the Act made no change to the maximum sentences allowed under 21 U.S.C. § 841(b)(1)(C) either. Id. In 2018, Congress then enacted the First Step Act, which made the Fair Sentencing Act’s amendments retroactive. Id. Under Section 404 of the First Step Act, a court that imposed a sentence for a “covered offense” had the discretion to reduce the sentence in line with the Fair Sentencing Act’s amendments in 2010. Id. at 3–4.
On August 21, 2019, Terry filed a motion with the United States District Court for the Southern District of Florida to appoint counsel to assist him with a motion under the First Step Act. United States v. Terry (S.D. Fla. 2020) at 3. The court ordered a federal public defender to contact Terry regarding a possible motion under the Act. Id. On December 6, 2019, Terry, through his appointed federal public defender, filed a motion to impose a reduced sentence under the First Step Act. Id. at 3–4. The court held that, because Terry was convicted under Section 841(b)(1)(C), rather than Section 841(b)(1)(A) or Section 841(b)(1)(B), that he had not committed a “covered offense.” Id. at 8. Therefore, the court held that Terry was not entitled to a retroactive reduced sentence under the First Step Act. Id. at 8. The United States Court of Appeals for the Eleventh Circuit affirmed, concluding that the district court did not err by holding Terry did not commit a “covered offense,” and thus, was not eligible for a reduced sentence. United States v. Terry (11th Cir. 2020) at 5.
On September 28, 2020, Terry filed a petition for a writ of certiorari in the United States Supreme Court. Terry v. United States (20-5904). The Supreme Court granted certiorari on January 8, 2021. Id. On March 15, 2021, following a change in Administration, the United States noted that the Department of Justice had since concluded that Terry’s conviction was a “covered offense” under the First Step Act, and the Court of Appeals had erred in concluding otherwise. Id. The United States informed the Court that they were no longer defending the judgment of the Court of Appeals. Id. On March 19, 2021, the Supreme Court invited Adam K. Mortara to brief and argue, as amicus curiae, in support of the judgment below. Id.
Analysis
“COVERED OFFENSE” UNDER SECTION 404(A) OF THE FIRST STEP ACT
Terry contends that the ultimate purpose of Section 2(a) of the Fair Sentencing Act is to reduce the 100-to-1 sentencing ratio between crack and powder cocaine. Brief for Petitioner, Tarahrick Terry at 19. To achieve this purpose, Terry argues, the changes to Sections 841(b)(1)(A) and 841(b)(1)(B) that raise the statutory penalty triggers from 50 grams to 280 grams and 5 grams to 28 grams respectively, should also necessarily raise the statutory penalty trigger in Section 841(b)(1)(C) from “less than 5 grams” to “less than 28 grams.” Id. at 19–20. That is because, according to Terry, the statutory amounts applicable to these three subsections were all raised together, as the floor for one provision acts as the ceiling for the next. Id. Terry also contends that because Section 404(a) of the First Step Act defines “covered offenses” as those for which statutory penalties were modified by Section 2 or 3 of the Fair Sentencing Act, Section 841(b)(1)(C) must be a “covered offense.” Id. at 22. In support of this argument, Terry notes that the First Step Act tellingly uses the word “modified” to refer to any practical change in the statutory penalty, as opposed to “amended,” which would refer to only textual changes in the statute. Id. at 23. Likewise, Terry also argues that Section 404(c) of the First Step Act’s limitation, or lack thereof, carving out Section 841(b)(1)(C) violations supports the contention that Congress sought to modify the statutory penalty triggers for all crack cocaine offenders, including low-level offenders. Id. at 23–24. In essence, Terry argues that the statutory text of Section 404 of the First Step Act and Section 2 of the Fair Sentencing Act are plain, and clearly support Section 841(b)(1)(C) offenses as falling under the definition of “covered offenses.” Id. at 24.
Terry also argues that people charged with crimes involving crack cocaine have always been regulated as a cohesive group. Id. at 25. He notes that they were treated as a group in the original Drug Quantity Table in 1987, as well as for Congress’s amendments 748 and 750 in 2015. Id. Terry contends, therefore, that the Fair Sentencing Act’s amendments should also treat all crack cocaine offenders as a group and amend all the three relevant sections of 21 U.S.C. § 841(b). Id. He further notes that by incorporating Section 2 of the Fair Sentencing Act into Section 401 of the First Step Act, Congress also adopted the United States Sentencing Commission’s view and understanding of Section 2’s purpose. Id. at 27. Terry contends that the Commission repeatedly cited all three subsections of §814(b)(1) together, and that the Fair Sentencing Act was intended to restore fairness to all federal cocaine sentencing. Id. at 27. He also argues that Congress was presented with numerous reports and studies by the Commission prior to enacting the Fair Sentencing Act which put it on notice that the Act’s intention was to provide relief to all crack cocaine offenders, including low-level offenders. Id. at 28–29.
Finally, Terry argues that interpreting Section 404 to include Section 841(b)(1)(C) offenses under “covered offenses” would accord with Congress’s stated purposes—to retroactively reduce the crack cocaine to powder cocaine disparity. Id. at 30. He also notes, in support of this argument, that the sole purpose of Section 2 of the Fair Sentencing Act, as evidenced by its title—“Cocaine Sentencing Disparity Reduction”—was to reduce the crack cocaine to powder cocaine disparity. Id. Terry contends that reading Section 404 of the First Step Act so as not to apply to Section 841(b)(1)(C) offenses would contravene these purposes. Id. at 30–31. Further, Terry also argues that doing so would also contravene the purpose of Section 841(b)(1)(C) itself—which sought to ensure that major and serious drug traffickers receive greater punishment in line with their harms. Id. at 32–33.
Mortara counters that Terry’s crime does not count as a “covered offense” under the definition of the Fair Sentencing Act or the First Step Act. Brief for Court-Appointed Amicus Curiae, Jonathan Mitchell and Adam Mortara at 11. Mortara contends that the court should consider the penalties clause as applying to a “violation of a Federal criminal statute” and reasons that Terry’s case should be decided based on the elements of Terry’s crime. Id. at 11–12. Therefore, Mortara argues that under statutory interpretation the “federal criminal statute” cannot be altered by the penalties clause of the First Step Act. Id. at 13. Mortara reasons that if the penalties clause could modify a “federal criminal statute,” then absurd results could occur such as individuals convicted of a heroin charge receiving resentencing even though the Fair Sentencing Act expressly targets crack cocaine penalties. Id. Mortara argues that it is illogical to interpret the statute as creating a penalty for a statute due to the traditional legal understanding that penalties are created for violations. Id. Mortara continues that under Section 841(b)(1)(C) it is essential to consider the elements of the crime and how the punishment was altered by the First Step Act instead of assuming that a general reference to elements modifies the penalties of the statute. Id. at 14-15.
Mortara then proceeds to determine what an offense means in the context of the acts. Id. at 16. Mortara argues that an offense must be defined by the individual legal sections of each part of the offence. Id. Mortara reasons that under traditional criminal law these elements create the offense and thus must be considered in interpreting which offences are covered by the Fair Sentencing Act. Id. at 17. Mortara asserts that a “covered offense” must be understood in the context of the legal definition of “penalties.” Id. at 17–18. After providing several dictionary definitions, Mortara defines a penalty as punishment. Id. at 18. Therefore, Mortara concludes that for Terry’s crime to be a “covered offense,” it is essential to consider the elements of the crime that Terry committed and if the punishment that Terry experienced was altered by the Fair Sentencing Act for committing the individual elements of his crime. Id. Mortara reasons that the Fair Sentencing Act applies when all of the parts of a crime fall under a new punishment due to the changes created by the Fair Sentencing Act. Id. at 19. Mortara argues that individuals sentenced under Section 841(b)(1)(C) before the Fair Sentencing Act are not able to obtain the new penalties, as both the elements and the statutory penalties remained the same. Id. at 20.
Further, Mortara contends that the text of the statute precludes Terry’s resentencing. Id. at 21. Mortara reasons that an individual can be charged with a lesser sentence even if they met the elements for a greater penalty. Id. Mortara argues that both Terry and the government fail to appropriately investigate the elements of Terry’s crime. Id. at 21-22. Given that Terry only had 3.9 grams of crack cocaine on his person, Mortara reasons that the facts do not support reducing the sentence. Id. at 23. Under Section 404, Mortara argues that Courts must examine the specific nature of the offence instead of using hypothetical arguments as constructed by the Government. Id. at 24. Mortara reasons that every individual convicted under Section 841(b)(1)(C) faces the same punishment despite the changes in the Fair Sentencing Act. Id. at 26. While some individuals sentenced under Sections 841(b)(1)(A) and (B) face the “same statutory range” despite the changes of the Fair Sentencing Act, Mortara contends that the statutory range does not remain the same when considering the elements of the conviction. Id. at 27. Therefore, Mortara reasons that Terry should lose under an argument about his conduct or the elements of his crime. Id. Mortara concludes that the text of the statute is clear and that, under a standard legal interpretation, Terry’s conviction is not a “covered offense.” Id.
Discussion
RACISM AND MASS INCARCERATION
The American Civil Liberties Union and related organizations (“ACLU et al.”), in support of Terry, assert that the First Step and Fair Sentencing Acts must be applied to all individuals convicted of crack cocaine charges in order to redress the racial bias that permeated the original sentencing guidelines. Brief of Amici Curiae ACLU et al., in Support of Petitioner at 15–16. ACLU et al. argue that while crack and powder cocaine have the same effects when used, the punishments were dramatically different depending on which substance was involved. Id. at 16. Further, ACLU et al. points out that the increased penalties on crack cocaine predominantly affect African Americans. Id. at 17. These increased penalties, ACLU et al. argue, contributed to the increased number of African Americans serving extended prison sentences in the American prison system. Id. at 18.
In addition, the American Conservative Union and related organizations (“ACU et al.”), in support of Terry, argues that applying the First Step Act retroactively would assist in ending mass incarceration. Brief of Amici Curiae ACU et al., in Support of Petitioner at 17. ACU et al. reason that since the 1970’s the number of individuals in prison has increased dramatically. Id. at 17–18. According to ACU et al., the increase is due to “overcriminalization and ever-harsher sentences'' facilitated through long sentences for drug offenders. Id. at 18–19. ACU et al. argue that mass incarceration can have devastating effects on families, communities, and society as individuals are removed from the support system. Id. at 20. Mass incarceration, ACU et al. reason, costs a tremendous amount of money during and post incarceration. Id. at 19. Applying the First Step Act to all crack-cocaine penalties, ACU et al. contend, will reduce the harmful effects of mass incarceration. Id. at 21–22.
In contrast, Mortara, in support of the United States, contends that Congress already corrected the previous extreme disparities between crack and powder cocaine when it applied a retroactive change to the drug sentencing guidelines in 2011. Brief for Court-Appointed Amicus Curiae at 28, 30. Mortara reasons that, as a career offender, Terry should not have access to the previously established changes to the sentencing act. Id. at 31. Due to Terry’s crimes, Mortara claims, Terry should not have any access whatsoever to the changes created by the Fair Sentencing Act. Id. at 32.
According to Mortara, “career criminals” and other individuals with extensive criminal histories are people that should be outside of the changes created by the Fair Sentencing Act. Id. Mortara reasons that individuals under large mandatory prison sentences have some time removed from their sentences due to the 2011 standards. Id. at 34. These mandatory prison sentences, Mortara argues, are outside of the First Step Act. Id. Therefore, Mortara concludes that Congress has designed a system that takes into account the severity of the criminal charges. Id. at 30.
CONGRESSIONAL INTENT
The Constitutional Accountability Center (“CAC”), in support of Terry, further asserts that the First Step Act was created with bipartisan support in order to reform the justice system. Brief of Amicus Curiae CAC, in Support of Petitioner at 19–20. CAC points to Congress’s words in the legislative negotiation process and claimed that congress clearly wanted to apply the changes to all individuals with a crack cocaine offense. Id. at 21–22. Therefore, the CAC argues, the Supreme Court should respect the express far-reaching purposes of the First Step Act as stated by the members of Congress. Id. at 23.
If the individual who was arrested fell into the category of Career Offender or Armed Career Criminal, Mortara asserts that Congress’s punishment system explicitly increases the penalties. Brief for Court-Appointed Amicus Curiae at 30. Mortara maintains that, for individuals convicted of the highest level of crimes, Congress already reduced their sentence if it was partially based on the previous difference in sentencing guidelines between crack and powder cocaine. Id. The system that Congress designed created a tiered system, Mortara argues, in which individuals labeled “career offenders” have sentencing that rises above the level of cocaine drug sentencing. Id. at 31. Mortara asserts that Terry falls into the category that Congress created for individuals with severe crimes. Id. According to Mortara, by failing to consider Terry’s status as a career offender the amicus briefs, in support of Terry, fail to acknowledge Congress’s intent in creating distinct sentencing brackets. Id. at 32. Mortara elaborates that Congress carefully designed statutory sentencing to fix the impact of the cocaine disparity while maintaining punishments for individuals who reached a certain criminal threshold. Id. at 34.
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Acknowledgments
Additional Resources
- Amy Howe, Court Sets May Argument on Sentencing Reductions for Crack-cocaine Offenses, SCOTUSblog (Mar. 25, 2021).