U.S. v Reed

No. 19-3620-cr

Second Circuit

Decided on August 4, 2021

Issue:

“Covered Offenses” under First Step Act

Whether defendant Martell Jordan is entitled to a sentence reduction under Section 404 of the First Step Act of 2018 for his dual-object conviction of conspiracy to possess with intent to distribute a) 5 kg or more of powder cocaine and b) 50 grams or more of crack cocaine where Section 404 regards the Fair Sentencing Act, reducing the penalties for crack cocaine offenses, but not those of powder cocaine.

Holding:

Dual-Object Convictions That Include Crack Cocaine Are Covered under the First Step Act

The Court held that a defendant is entitled to a sentence reduction under Section 404 of the First Step Act when any one part of their multi-object conviction is a “covered offense” that includes a drug-quantity element triggering the penalties set forth in 21 U.S.C. § 841 (b)(1)(A).

Contact a Criminal Appeals Lawyer To Discuss Your

Federal Criminal Appeal

Facts:

Martell Jordan was convicted of one count of conspiring to possess with intent to distribute a) 5 kg or more of powder cocaine and b) 50 grams or more of powder cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). In 2009 at the time of Jordan’s sentencing, the dual-object conspiracy conviction imposed a statutory mandatory minimum sentence of 10 years’ imprisonment. Because Jordan had a prior conviction for a “felony drug offense,” he was subject to an increased mandatory minimum sentence of 20 years’ imprisonment. In addition, the Sentencing Guidelines provided for an advisory Guidelines range of 235 to 293 months’ imprisonment due to the 20-year statutory minimum sentence required for his dual-conspiracy conviction. The district court sentenced Jordan to a total term of 300 months’ imprisonment, 5 years above the mandatory minimum sentence for the dual-object conspiracy count.

The following year Congress enacted the Fair Sentencing Act of 2010 to “restore fairness to Federal cocaine sentencing” by reducing the substantial disparity between penalties for crack cocaine offenses and those of powder cocaine. As relevant to Jordan’s sentence, Section 2 of the Act increased the amount of crack cocaine necessary to trigger statutory penalties for certain crack cocaine offenses in 21 U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B). However, the Fair Sentencing Act was not made retroactive to sentences imposed before its enactment.

Pursuant to the Fair Sentencing Act, the Sentencing Commission issued Amendment 782 in 2014, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1 to reduce the offense levels associated with certain controlled-substance crimes, including those involving crack cocaine. Amendment 782 was made retroactive, and following its passage, Jordan filed a pro se motion requesting a sentence reduction under U.S.C. § 3582(c)(2), which provides that a court may modify a term of imprisonment if “a sentencing range..has subsequently been lowered by the Sentencing Commission…if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The district court granted Jordan’s motion and reduced his sentence to 254 months’ imprisonment, still 14 months above the mandatory minimum.

Later that same year, Congress enacted the First Step Act of 2018, which provides for retroactive application of the Fair Sentencing Act for any “covered offense” pursuant to Section 404.  Jordan then filed another pro se motion seeking to reduce his sentence this time under the First Step Act and 18 U.S.C. § 3582(c)(1)(B). The district court denied his motion, holding that Jordan’s dual-conspiracy conviction in Count One involved both a crack cocaine object and a powder cocaine object and that the powder cocaine object alone could subject Jordan to the statutory penalties he received. The district court thus held that the dual-object conspiracy was not a “covered offense” under the First Step Act.

Analysis:

All Crack Cocaine Convictions Are Covered Offenses under Section 404 of the First Step Act

This Second Circuit however, held that a sentence arising from a multi-object conspiracy conviction involving a crack cocaine object, with a statutory penalty provision under 21 U.S.C. § 841(b)(1)(A)(iii) or 21 U.S.C. § 841(b)(1)(B)(iii), is a “covered offense” eligible for sentence reduction under Section 404, even when other objects of the conspiracy triggered statutory penalties not modified by the Fair Sentencing Act.

In Terry v. United States, the Supreme Court made clear that statutory penalties had changed for all crack cocaine offenders under 21 U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B), because the Fair Sentencing Act changed the quantity thresholds for crack cocaine in those subparagraphs, which “plainly modified” the penalties associated with the drug-quantity element insofar as that offense triggered mandatory minimums (Terry, 141 S. Ct. 1858, 1862-63, L.Ed.2d (2021)). The fact that Jordan’s conviction also involved powder cocaine, whose statutory penalties were not modified, does not preclude eligibility under the “covered offense” definition in Section 404.

Indeed, Jordan’s single Count One offense contains, as separate elements, all the statutory penalties applicable to the particular controlled substances that are charged as separate objects in one offense. (See US v Adams, 448 F.3d 492, 500 (2nd cir. 2006). Thus, if the statutory penalties in any one of those drug-quantity elements was modified by Section 2 or 3 of the Fair Sentencing Act, then the dual-object conspiracy becomes a “covered offense,” even if the overall statutory sentencing range for the offense remains unchanged because of the statutory penalties associated with a non-crack related object. (See Winters, 986 F. 3d at 948).

The Court concluded that defendant’s 254-month sentence on his multi-object conspiracy conviction is therefore eligible for a sentence reduction under Section 404 of the First Step Act.

New York Criminal Appeals Lawyer call 1-800-APPEALS (1-800-277-3257)

Terry v. U.S.

No. 20-5904

Supreme Court

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 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 he was not eligible for a sentence 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.

Lange v. California

No. 20-18

Supreme Court

Decided on June 23, 2021

Issue:

Does a Fleeing Misdemeanant Suspect Grant a Warrantless Entry?

Whether police were entitled to a warrantless entry into defendant Lange’s home where they signaled for defendant to pull over on the street, but because he was 100 feet from his driveway, Lange instead pulled into his attached garage where the officer followed him into the garage, completed sobriety tests, and charged him with misdemeanor driving under the influence.

Holding:

Pursuit of Fleeing Suspect Is Not Necessarily An Exigent Circumstance

The Court held that an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need. The pursuit of a fleeing misdemeanant suspect does not categorically qualify as an exigent circumstance, as warrantless entry is decided on a case-by-case basis. The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh, 466 U.S. 740, 742-742. Add a suspect’s flight and the calculus changes, but not enough to justify a categorical rule.

Facts:

Defendant Arthur Lange drove past a California highway patrol officer while listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lange, and soon afterward turned on his overhead lights to signal defendant to pull over. By that time, Lange was 100 feet from his driveway, so he continued to his home and entered his attached garage. The officer followed Lange in and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests and a later blood test showed his BAC was more than three times the legal limit.

The State charged Lange with misdemeanor driving under the influence and a noise infraction. Lange moved to suppress all evidence obtained after the officer entered the garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The Court of Appeals also affirmed, concluding that Lange’s failure to pull over when the officer flashed his lights created probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. It stated that Lange could not defeat an arrest begun in public by retreating to his home. The pursuit of a suspected misdemeanant, the court held, is always permissible under the exigent-circumstances exception to the warrant requirement. The California Supreme Court denied review.

Analysis:

Fourth Amendment Sanctifies the Home

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Court holds that when it comes to the Fourth Amendment, “the home is first among equals,” and that “Freedom” in one’s own “dwelling is the archetype of the privacy protection secured by the amendment.” Conversely, “physical entry of the home is the chief evil against which it is directed.” Payton v. New York, 445 U.S. 573, 585, 587 (1980). The Court has, therefore, repeatedly declined to expand the scope of exceptions to the warrant requirement and is “not eager…to print a new permission slip for entering the home without a warrant.”

‘Now or Never’ Warrant Exceptions under the Fourth Amendment

The Fourth Amendment warrant requirement is subject to certain exceptions. An officer may make a warrantless entry when the “exigencies of the situation,” considered in a case-specific way, create “a compelling need for official action and no time to secure a warrant.” Kentucky v. King, 563 U.S. 452, 460; Missouri v McNeely, 569 U.S. 141, 149.

The Court has identified several such exigencies. For example, an officer may enter a home without a warrant to render emergency assistance to an injured occupant, to protect an occupant from imminent injury, or to ensure his own safety. Police may also make a warrantless entry to “prevent the imminent destruction of evidence” or to “prevent a suspect’s escape.” (Brigham City, 547 U.S. at 403.) In those circumstances, the delay required to obtain a warrant would bring about “some real immediate and serious  consequences” and so the absence of a warrant is excused. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984).

The exception requires a court to examine whether an emergency justified a warrantless search in each particular case. The Court must determine whether a “now or never situation” actually exists; whether an officer has “no time to secure a warrant” depends upon facts on the ground.

The State contended in this case that a suspect’s flight always supplies the exigency needed to justify a warrantless home entry and that the Court endorsed such a categorical approach in United States v Santana, 427 U.S. 38. The Court disagrees. In Santana the Court upheld a warrantless entry made during a “hot pursuit” of a felony suspect, stating that Santana’s “act of retreating into her house” could “not defeat an arrest” that “had been set in motion in a public place” (Id. at 42-42). But even if Santana treated fleeing-felon cases categorically, it doesn’t establish a flat rule permitting warrantless entry whenever police pursue a fleeing misdemeanant. As the Court noted in a later case, “the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established” one way or the other. Stanton v. Sims 571, U.S. 3, 8, 10.

Misdemeanant Flight Doesn’t Categorically Create Exigencies

The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh, 466 U.S. 740, 742-742. Add a suspect’s flight and the calculus changes, but not enough to justify a categorical rule. In many cases flight creates a need for police to act swiftly, but no evidence suggest that every case of misdemeanor flight creates such a need.

In Welsh, officers responded to a call about a drunk driver only to discover he had abandoned his vehicle and walked home. The officers then went to the driver’s house, entered without a warrant, and arrested him for a “nonjailable offense.” The State argued that exigent circumstances supported the warrantless entry because the driver’s “blood-alcohol level might have dissipated while the police obtained a warrant.” But the Court rejected that argument on the ground that the driver had been charged with only a minor offense. “The gravity of the underlying offense,” the Court explained,” is “an important factor to be considered when determining whether any exigency exists.” With Welsh the Court concluded that “application of the exigent-circumstances exception in the context of home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense” is involved.

Thus, the Court’s Fourth Amendment precedents point toward assessing case by case the exigencies arising from misdemeanant’s flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—police may act without waiting. But when the nature of the crime, the nature of the flight, and the surrounding facts present no such exigency, offers must respect the sanctity of the home by getting a warrant. The case was therefore vacated and remanded.

Did a Fourth Amendment violation result in a conviction? Contact an appeals attorney today.

Rehaif v. U.S.

139 S. Ct. 2191

Decided on June 21, 2019

Issue:

Prosecuting Unlawful Possession of Firearm

Whether the Government must prove that defendant Rehaif knowingly violated 18 U.S.C. § 922(g), which prohibits unlawful aliens from possessing a firearm by proving that 1) he knew that he possessed a firearm and 2) he knew his immigration status as unlawful alien after his student visa had been terminated when he was dismissed from university, and he did not re-enroll or leave the country.

Holding:

Mens Rea Requirement

The Supreme Court held that prosecutions under § 922(g) and § 924(a)(2) require the Government to prove 1) that a defendant knowingly possessed a firearm and 2) that he knew his status as an illegal immigrant barred him from possessing a firearm.

Facts:

Hamid Rehaif entered the U.S. on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “immigration status” would be terminated unless he transferred to a different university or left the country. Rehaif then started visiting a firing range and staying at a hotel where he “demanded a room…facing the airport.” Each morning he checked out and paid his bill with cash. A hotel employee told the FBI that Rehaif claimed to have weapons in his room. He was arrested and charged under § 922(g) for possession of a firearm as an alien unlawfully in the U.S. A separate provision, § 924(a)(2) adds that anyone who “knowingly violates’ the first provision shall be fined or imprisoned for up to 10 years.

At the trial’s closing, the judge instructed the jury that the “United States is not required to prove” that Rehaif  “knew that he was illegally or unlawfully in the U.S.” He was sentenced to 18 months’ imprisonment.  Rehaif appealed, arguing that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Eleventh Circuit Court of Appeals concluded that the jury instruction was correct, and it affirmed Rehaif’s conviction.

Analysis:

Scienter Presumption

Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. In determining Congress’ intent, the Supreme Court starts from a presumption traceable to the common law that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct” (U.S. v. X-Citement Video, Inc. 513 U.S.  64, 72, 115 S. Ct. 464, 130 L. Ed .2d 372 (1994)). The Court characterizes this interpretive maxim as a presumption in favor of “scienter,” meaning that criminal statutes require the degree of knowledge sufficient to “make a person legally responsible for the consequences of his or her act of omission.” Scienter requirements help to “separate those who understand the wrongful nature of their act from those who do not” (Id. at 72-73).

Statutory Language Specifies ‘Knowingly’

The Court does not depart from the ordinary presumption of scienter here. The text of 18 U.S.C. § 924(a)(2) states that “whoever knowingly violates” certain subsections of § 922, including § 922(g) shall be subject to penalties of up to 10 years’ imprisonment. Section 922 (g) states that it “shall be unlawful for any person…being an alien…illegally or unlawfully in the U.S.” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” modifies the verb “violates” and its direct object, which is in this case § 922(g). As a “matter of ordinary English grammar,” we normally read the statutory term “knowingly” as applying to all the subsequently listed elements of the crime,” (Flores-Figueroa v. U.S., tty U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009)). Thus, the term “knowingly” applies to the statute’s possession element, as well as the status element. The Court held that the Government is therefore required to establish that the defendant knew he violated the material elements of the statute.

‘Knowing’ = Requisite Mental State

The Government argued that whether an alien is unlawfully in the U.S. is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” is no excuse. Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112, L.Ed.2d 617 (1991)).  The Court held, however, that this maxim applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct” (1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(a), p. 575 (1986)). In contrast, the maxim does not apply where a defendant has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.

The defendant’s status as an alien “illegally or unlawfully in the United States,” refers to a legal matter, but this legal matter is a “collateral” question of law. A defendant who does not know that he is an alien unlawfully in the U.S. does not have the guilty state of mind that the statute’s language and purposes require.

The Court therefore concludes that in order to prosecute under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and knew that he belonged to the relevant category of persons barred from possession. The Court reversed the judgment and remanded the case.