Terry v. U.S.
No. 20-5904
Decided on June 14, 2021
Issue:
Entitled to Sentence Reduction under First Step Act?
Whether defendant Terry is entitled to receive a sentence reduction for his 2008 crack cocaine conviction under the First Step Act, which makes retroactive the provisions in the Fair Sentencing Act that increased the crack quantity threshold for mandatory minimum penalties, where the defendant’s offense did not trigger a mandatory minimum penalty.
Holding:
Reduction Entitlement for Mandatory Minimum Sentences Only
The Supreme Court held that a defendant is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. Terry’s conviction was not a “covered offense” and therefore not eligible for reduction.
Facts:
Defendant Tahahrick Terry was convicted for possession with intent to distribute 3.9 grams of crack cocaine and sentenced as a career offender to 188-months’ imprisonment under 21 U.S.C. § 841(b)(1)(C) in 2008. After Congress enacted the First Step Act of 2018, which made retroactive the provisions of the 2010 Fair Sentencing Act, Terry sought resentencing on the ground that he was convicted of a crack offense modified by the Fair Sentencing Act. The District Court denied his motion, and the Eleventh Circuit affirmed. The Supreme Court granted certiorari.
Analysis:
Fair Sentencing Act Addresses Sentencing Disparities in Crack v. Powder Cocaine
As enacted in 1986, legislation defined three tiers of statutory penalties for possession with intent to distribute crack cocaine, creating a 100-to-1 ratio between the amount of powder and crack cocaine necessary for conviction. The first two tiers authorized enhanced penalty ranges, carrying mandatory minimum sentences based on drug quantity: a 5-year mandatory minimum (triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine) and a 10-year mandatory minimum (triggered by either 50 grams of crack or 5 kg of powder). 100 Stat. 3207-2, 3207-3. The third penalty differed from the first two: it did not carry a mandatory minimum sentence, did not treat crack and powder cocaine offenses differently and did not depend on drug quantity. The statutory penalties for that offense were up to 20 years’ imprisonment, up to a $1 million fine, or both, and a period of supervised release.
The United States Sentencing Commission incorporated the 100-to-1 ratio into the Sentencing Guidelines, including a “Drug Quantity Table” that sets “base offense levels” that correspond to various ranges of weights for each drug type. Because the drug quantity tables are keyed to the statutory minimums, selling a given weight of crack cocaine would lead to the same base offense level as selling 100 times as much powder cocaine. Street-level crack dealers could thus receive significantly longer sentences than wholesale importers of powder cocaine. Additionally, crack cocaine sentences were about 50 percent longer than those for powder cocaine, and Black people bore the brunt of this disparity. Around 80 to 90 percent of those convicted of crack offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years (USSC, Report to the Congress: Cocaine and Federal Sentencing Policy 13 (May 2007) (2007 Report)).
The Fair Sentencing Act of 2010 addressed the 100-to-1 crack-to-powder ratio sentencing disparity by increasing the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum, affecting convictions under §§ 841(b)(1)(A) and 841(B)(1)(B), thereby reducing the crack-to-powder ratio to 18-to-1. § 2(a), 124 Stat. 2372. The Sentencing Commission, in turn, quickly revised the drug quantity tables to reflect that new ratio. USSG App. C, Amdt. 748 (Nov. 2010). The act did not affect the penalty for subparagraph (C), as this statute never differentiated between crack cocaine and powder cocaine offenses. Congress made these changes retroactive in 2018 with the First Step Act.
Fair Sentencing Act Affects Only ‘Mandatory Minimum’ Sentences
Before 2010, §§ 841(a) and (b) together defined three crack offenses relevant here:
- The elements of the first offense were (1) knowing or intentional possession with intent to distribute (2) crack, of (3) at least 50 grams. §§ 841(a), (b)(1)(A)(iii). This subparagraph (A) offense was punishable by 10 years to life, in addition to financial penalties and supervised release.
- The elements of the second offense were (1) knowing or intentional possession with intent to distribute, (2) crack, of (3) at least 5 grams. §§ 841(a), (b)(1)(B)(iii). This subparagraph (B) offense was punishable by 5-40 years, in addition to financial penalties and supervised release.
- The elements of the third offense were (1) knowing or intentional possession with intent to distribute, (2) some unspecified amount of a schedule I or II drug. §§ 841(a), (b)(1)(C).
Defendant was convicted of the third offense, subparagraph (C) as a “career offender” because of two prior drug convictions committed when he was a teenager. As a result, his Guidelines range went from about 3-4 years (for just 3.9 grams of crack) to 15 to 20 years, and he received a sentence of 188 months at the bottom of the range. If he had been charged under either of the other subparagraphs (A) or (B), which require larger quantities of drugs, he would be eligible for resentencing. Similarly, if his Guidelines range had been calculated like that of a non-career offender, he would have been eligible for a sentence reduction when the USSC retroactively reduced the amount of crack cocaine necessary to trigger higher Guidelines range.
Under the First Step Act of 2018, everyone with a pre-August 3, 2010 crack conviction under § 841(b)(1)(A) or § 841 (b)(1)(B), including career offenders, has a “covered offense” and is eligible for resentencing. But the Court holds that no one convicted under § 841(b)(1)(C) has a covered offense, even though their sentences were also based on the 100-to-1 crack-to-powder ratio that was retroactively lowered, and though the law now treats the offense as a far less serious crime.