Federal Appeals Blog

US v. Lawlor

168 F.3d 633

Second Circuit Court of Appeals

Decided on Feb. 23, 1999

Issue:

Government Agrees with Enhancement at Sentencing, Despite Plea Agreement

Whether the Government violated the plea agreement with defendant Lawlor when, at sentencing, it agreed with the pre-sentence reports’ (PSR) application of a higher offense level than was stipulated in the agreement. 

Holding:

Government Violates Plea Agreement by Supporting Enhancement not Stipulated in Plea Agreement

The Government breached the plea agreement when it agreed with the PSR’s application of Sentencing Guidelines despite the plea agreement’s contradictory promise. 

Facts:

Defendant Richard Lawlor fought with his cell mate while incarcerated and, during the melee, may have struck a corrections officer in the face. He pled guilty to assaulting a federal corrections officer and was sentenced to the statutory maximum of twelve months’ imprisonment. The plea agreement stipulated that the Government “agree[d] that § 2A2.3 of the Guidelines, Minor Assault, is applicable to Count One” to determine Lawlor’s base offense level. The PSR, however, recommended that the court apply Sentencing Guideline § 2A2.4 (“Obstructing or Impeding Officers”), instead of the section that was listed in the agreement. The PSR also recommended a three-level enhancement pursuant to § 2A2.4(b)(1) of the Guidelines for conduct that “involved physical contact.”

Defendant objected to the PSR, arguing that the enhancement contradicted the terms of the plea agreement. At sentencing, the district court noted defendant’s objections to the PSR and asked counsel if she wanted to add anything to the arguments she had previously made; she declined. The district court then asked the Government if it wished to respond to defendant’s arguments, and it stated that, “the Government feels that the Pre-sentence Report was appropriately scored in the first instance.” The district court accepted the Government’s argument and, finding the recommended enhancement was appropriate, sentenced defendant to 12 months’ incarceration to run consecutively with his term of imprisonment. 

Analysis:

Defendant Not Required to Object to Violation of Plea Agreement at the Time of Sentencing

The Government argued that because the defendant’s counsel did not object to the application of the sentence enhancement at the sentencing hearing that the Second Circuit was bound to apply a plain error standard of review. The Second Circuit disagreed, explaining that a defendant is not required to object to the violation of a plea agreement at the sentencing hearing. (See United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir. 1993) 

What Both Parties ‘Reasonably Understand’ to be the Terms of Agreement

To determine whether there was a breach of plea agreement, “a court must look to what the parties reasonably understood to be the terms of the agreement” and “any ambiguity should be resolved against the government.” (United States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993)). The Government was bound by its stipulation in the plea agreement that § 2A2.3 was “applicable to Count One.” Yet, at the sentencing hearing, when the Government was asked for its position with respect to the defendant’s objection to the PSR recommendation that a three-level enhancement for physical contact pursuant to § 2A2.4(b)(1) be applied, the Government agreed with the PSR. By concurring with the PSR’s enhancement, the Government breached the plea agreement.  

Government Should Take Greater Care with Respect to Plea Agreements

The Second Circuit reiterated the admonition that it has expressed to the Government on other occasions, that it “take much greater care in fulfilling its responsibilities where plea agreements are involved.” (United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)). Given the Government’s often decisive role in the sentencing context, the Court will not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standard of fairness. The Second Circuit vacated Lawlor’s sentence and ordered that he be re-sentenced before a different district judge. 

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Compassionate Release Motions and the Administrative Exhaustion Requirement

United States v. Saladino

No. 20-1563

Second Circuit Court of Appeals

Decided on August 4, 2021

Issue:

 Whether the district court erred in denying defendant Anthony Saladino’s motion for compassionate release due to the threat of COVID-19 where he did not first satisfy the administrative exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A), and whether administrative exhaustion is a jurisdictional requirement that must be satisfied before a district court can entertain a motion for compassionate release.

Holding:

Administrative Exhaustion Requirement is Not Jurisdictional, can be Waived or Forfeited by Government

The Second Circuit remanded the case to the district court to be heard on the merits and held that the administrative exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A) is a claim-processing rule that may be waived or forfeited, and not a jurisdictional requirement on a court’s authority to consider a motion for compassionate release.

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Facts:

In April 2020, Saladino filed a motion for compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A), arguing that given his medical condition, the threat of COVID-19 justified his early release from prison. At the hearing on the motion before the district court, Saladino admitted that he failed to exhaust his administrative remedies by statute. Instead, he asked the district court to excuse his failure to exhaust. The district court denied Saladino’s motion because he “failed to exhaust his administrative remedies, which are non-waivable.”

Analysis:

The Court found that the district court erred where it intended to hold that it lacked jurisdiction to consider Saladino’s motion due to his failure to exhaust all administrative remedies. A rule is jurisdictional “if the Legislature clearly states that a prescription counts as jurisdictional.” (Fort Bend Cnty v. Davis, 139 S. Ct. 1843, 1850 (2019)). But when Congress does not rank a prescription as jurisdictional, courts should treat the restriction as non-jurisdictional in character.

Compassionate Release Statute

The statute governing an inmate’s motion for compassionate release reads:  “ A court may not modify a term of imprisonment once it as been imposed except that – A) the court, upon motion of the Director of the Bureau of Prisons (BOP), or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the BOP to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment [subject to certain conditions].” (18 U.S.C. § 3582(c)(1)(A)). Since the language does not provide a clear statement setting forth a jurisdictional prescription, the Second Circuit concluded that that the exhaustion requirement is a “claim-processing rule” and, accordingly, “may be waived or forfeited” by the government. (Hamer v Neighborhood Hous. Servs., 138 S. Ct. 12, 17, (2017)).

The Court explained that district courts in the circuit have split on how to interpret the statute’s provision permitting an inmate to move for a sentence reduction “after…the lapse of 30 days from the receipt” by the warden of an inmate’s request for the BOP to move on his behalf. Some courts have held that the provision authorizes an inmate to file a motion only after he has “waited 30 days from the Warden’s receipt of his request for compassionate release without receiving a response. (United States v Samuels, No. 08-CR-789-6, 2020 WL 7696004, at *3(S.D.N.Y Dec. 28, 2020)). But if the BOP timely responds to the inmate’s request for compassionate release, the inmate must “‘satisfy the same exhaustion procedure’ that applies to ‘routine administrative grievances,’” which would “include appeals to both the appropriate Regional Director and the BOP General Counsel. (Id.)

Other district courts, however, have held that the statute’s 30-day waiting period authorizes the inmate’s filing a motion regardless of whether the warden responds to the inmate’s request for compassionate release. Under this view, an inmate must “either…exhaust administrative remedies or simply…wait 30 days after serving his petition on the warden of his facility before filing a motion in court.” (United States v. Haney, 454 F. Supp. 3d 316, 321 (S.D.N.Y. 2020).

While the Second Circuit did not directly address the question of interpretation, it reiterated that the exhaustion requirement is a claim-processing rule and may be waived or forfeited. It vacated the district court’s decision and remanded with instructions to consider Saladinos’s motion on its merits.

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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).

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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.

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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.