• The Fair Sentencing and First Step Acts: When Do They Apply?

    Published By Stephen Preziosi

    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 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.

  • APPEAL WAIVER PRECLUDES RIGHT TO APPEAL SENTENCE ENHANCEMENT

    Published By Stephen Preziosi

    U.S. v. Solis

    784 Fed. Appx. 202

    Fifth Circuit Court of Appeals

    Decided on August 9, 2019

    Issue:

    Whether an appeal waiver is valid when the defendant claims the Government breached the plea agreement where it promised to move for a one-level sentence reduction for conspiracy to transport an undocumented alien if the defendant qualified under U.S.S.G. § 3E1.1(b) for Acceptance of Responsibility, but the district court instead imposed an offense level enhancement because the defendant assaulted a prisoner and was not eligible for the reduction under U.S.S.G. § 3E1.1(b).

    Holding:

    The Fifth Circuit held that the appeal waiver is valid as the Government did not breach the agreement where they imposed a sentence level enhancement. Solis did not qualify for a sentence reduction under U.S.S.G. § 3E1.1(b) despite Acceptance of Responsibility because he assaulted a prisoner. The plea agreement was knowing and voluntary, and the waiver precludes the defendant’s right to appeal based on the sentencing issue he attempts to raise here.

    Fact:

    Josue Osvaldo Solis pled guilty to conspiracy to transport an undocumented alien within the US, and was sentenced to 97 months’ imprisonment based on an offense level enhancement.

    In Solis’s plea agreement the Government (1) promised to move for the additional one-level reduction under U.S.S.G. § 3E1.1(b) if the district court determined that Solis qualified for the two-level § 3E1.1(a) reduction for acceptance of responsibility and his offense level exceeded the relevant threshold and (2) reserved the right to present facts and argument relevant to sentencing.

    The Government presented facts and argument that Solis assaulted “another prisoner,” which resulted in an offense level enhancement, rather than a reduction. Solis appealed, claiming the district court breached the plea agreement.

    Analysis:

    Appeal Waiver Precludes Appeal of Sentence that Imposed Offense Level Enhancement

    The court dismissed Solis’s appeal based on the waiver in his plea agreement and found his sentence was consistent with a reasonable understanding of “the plain language of the agreement.” Solis knowingly and voluntarily agreed to the appeal waiver which precluded his right to appeal except on the basis of ineffective assistance of counsel.

    U.S.S.G. § 3E1.1 reads:

    • If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
    • If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

    The Government presented evidence that Solis did not qualify for a § 3E1.1 sentence reduction because he assaulted another prisoner.

    The Fifth Circuit was not persuaded by the argument that Solis reasonably understood the language of the agreement to include “an additional promise that the Government would refrain from advocating against his qualification for the two-level § 3E1.1(a) reduction.” The sentencing was consistent with the agreement, therefore the Government did not breach the agreement. The Fifth Circuit dismissed Solis’s appeal.

  • Adequacy of Wiretap Applications: Title III of the Omnibus Crime Control and Safe Streets Act in the First Circuit Court of Appeals

    Published By Stephen Preziosi

    Wiretap Application was More Than Minimally Adequate to Justify the Authorization of a Wiretap

    United States of America v. Hugo Santana-Dones

    United States Court of Appeals for the First Circuit

    920 F.3d 70 (1st Cir. 2019)

    Decided on March 29, 2019

    Federal Appeals Lawyer in the First Circuit Court of Appeals

    Boston Federal Appeals Lawyer

    Massachusetts Federal Appeals Lawyer

    ISSUE:

    Whether the district court erred in concluding that the court which issued the wiretap warrant could have found the facts in the application to be at least minimally adequate to support the a wiretap warrant and whether any reasonable view of the evidence supports the district court’s finding under both Title III of the Omnibus Crime Control and Safe Streets Act and the Fourth Amendment.   

    Federal Criminal Appeals After Trial

    HOLDING:

    The Court held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap because the Court’s inquiry is guided by Title III.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

    FACTS OF THE CASE:

    Following several other methods of investigation and surveillance, Drug Enforcement Administration (DEA) agents then went a step further and made use of a wiretap of Vasquez’s cellular telephone, which had been authorized and periodically renewed by a federal district judge.  A month later, a federal grand jury in the District of Massachusetts charged all defendants on multiple counts of distributing heroin and cocaine under 21 U.S.C. §§ 841 (a)(1) and 846.  After maintaining their innocence for an extended period of time, the defendants pleaded guilty to all the charges, reversing the right to challenge the district court’s suppression-related rulings and to claim ineffective assistance of counsel.   

    Federal Appeals: Drug Convictions and Conspiracy to Distribute

    COURT’S ANALYSIS:

    The First Circuit Court of Appeals held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap.  When examining a district court’s ruling on a motion to suppress wiretap evidence, this Court reviews its factual findings for clear error and its legal conclusions de novo.  To find clear error, the Court must form a strong, unyielding belief, based on the whole of the record, that a mistake has been made.  In this instance, the Court’s inquiry is guided by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which governs the rules for federal telephone wiretaps.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

    The law’s main purposes: (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.  It follows that wiretapping is an exception, not a rule.  The law imposes a set of statutory requirements on top of the constitutional requirements applicable to ordinary search warrants.  A wiretap application must contain, in addition to the foundational showing of probable cause, a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.  Necessity must, therefore, be viewed through the lens of what is pragmatic and achievable in the real world.  Since drug trafficking is inherently difficult to detect and presents formidable problems in pinning down the participants and defining their roles, investigative personnel must be accorded some latitude in choosing their approaches.

    Federal Appeals of Firearm Convictions: 18 U.S.C. §§ 921, 922, 924

    The Supreme Court has warned that a wiretap is not to be routinely employed as the initial step in criminal investigation.  A reviewing court must examine whether reasonable procedures were attempted, or at least thoroughly considered, prior to seeking a wiretap.  The inquiry into whether the government has sufficiently demonstrated necessity does not hinge on whether it already has garnered enough goods to pursue criminal prosecution.  After all, an application for a wiretap will always have to disclose some meaningful level of previous success in order to satisfy the probable cause requirement and justify further investigation.  To be sure, the level of success achieved through a given procedure will vary in relation to the scope of the investigation as established by the government.  It follows that, in seeking a wiretap, the government cannot be permitted to set out goals that are either unrealistic or overly expansive.

                In this case, the defendants argue that the government made a Gadarene rush to employ electronic surveillance and that its attempt to show necessity in the affidavits supporting the warrant were unconvincing.  The First Circuit found that the affidavit was sufficient to allay reasonable concern that the wiretap was being sought prematurely.  It demonstrated that the government had employed and exhausted a number of traditional investigative measures over the course of more than six months.

  • Armed Career Criminal Act and Past Convictions: Mens Rea of Recklessness is not violent.

    Published By Stephen Preziosi

    Borden v. U.S.

    No. 19-5410

    US Supreme Court

    Decided on June 10, 2021

    Issue:

    Armed Career Criminal Act and Past Violent Convictions

    Whether 1) a defendant is subject to the enhanced sentence under the Armed Career Criminal Act (ACCA) where one of three past convictions has the mens rea of recklessness, and whether 2) that conviction constitutes a “violent felony” under the elements clause 18 USC § 924(C)(3)(A) which qualifies a felony as violent when it “has as an element the use, attempted use, or threatened use of physical violence against the person of another.”

    Holding:

    ‘Violent’ Requires Purposeful and Knowing Conduct, Excludes Recklessness

    The Supreme Court held that 1) a defendant is not subject to the ACCA enhanced sentence where one of three past convictions had the mens rea of recklessness, and 2) that a “violent felony” requires purposeful and knowing conduct for the use of force “against the person of another.”

    Facts:

    Charles Borden Jr. pled guilty to a felon-in-possession charge and the Government sought an enhanced sentence under ACCA. One of Borden’s past three convictions was for reckless aggravated assault. Borden argued that this offense was not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction, and that only purposeful and knowing conduct satisfies the clauses’s demand for the use of force “against the person of another.” The District Court disagreed and sentenced Borden as a career offender under ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.”

    Analysis:

    ACCA Elements Clause

    The Supreme Court held that the ACCA penalty enhancement kicks in only when three or more past offenses meet the statute’s definition of “violent felony.” An offense qualifies as violent under the elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

    Borden argued that the word “against” introduces a conscious object (not the mere recipient) of the force, while the Government argued that “against” instead means “making contact with” and therefore introduces the mere recipient of force rather than its “intended target.” Indeed, dictionaries offer both meanings, “in opposition to” and “in contact with,” depending on context.

    The Court held that Borden’s view of the word was correct, as “against another” modifies the “use of force,” which demands that the perpetrator direct his action at, or target, another individual in behavior that is knowing or purposeful. Reckless conduct is not aimed in that prescribed manner, and to treat reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (such as a reckless driver) far afield from the “armed career criminals” who the ACCA addresses.

    Purposeful and Knowing Conduct and the Four Mens Rea

    The ACCA elements clause, then, excludes reckless conduct but covers conduct that is knowing and purposeful. Of the four mens rea that give rise to criminal liability (purpose, knowledge, recklessness, and negligence), purpose and knowledge are the most culpable levels in criminal law’s mental-state hierarchy. (U.S. v. Bailey, 444 U.S. 394, 404 (1980)). A person acts purposely when he “consciously desires” a particular result. A person acts knowingly when “he is aware that a result is practically certain to follow from his conduct,” what his affirmative desire.

    For example, a person driving his car straight at a reviled neighbored has, in the statute’s language, “Used physical force against the person of another” in a purposeful way. A getaway driver who sees a pedestrian in his path but plows ahead anyway has likewise “used physical force against the person of another.”

    Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly when he “consciously disregards a substantial and unjustifiable risk” (Model Penal Code § 2.202(2)(c); see Voisine v. U.S., 579 U.S. 686 (2018)).

    For example, a reckless or negligent driver who, late to work, decides to run a red light and hits a pedestrian whom he did not see has not “used physical force against the person of another,” rather, he has consciously disregarded a real risk, thus endangering others. He did not train his car at the pedestrian understanding he will run him over. The reckless driver does not, therefore, come within the elements clause.

    Leocal v. Ashcroft

    In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that offenses requiring only a negligent mens rea fell outside a statutory definition relevantly identical to ACCA’s elements clause. That definition, codified at 18 U.S.C. § 16(a) is for the term “crime of violence.” Section 16(a) states that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

    The Court explained in Leocal that a “crime of violence” suggests a category of “violent, active crimes that cannot be said naturally to include negligent offenses.” That when read against the words “use of force,” the “against” phrase (which the Court held as a “critical aspect” of the definition) “suggests a higher degree of intent” than (at least) negligence” (Id. at 9).

    The Court’s logic likewise applies in this case regarding recklessness. It is the pairing of volitional action with the word “against” that produces its oppositional or directed meaning and excludes recklessness from the statute.

    Context and Purpose

    Furthermore, the Court held that context and purpose remove any doubts regarding the elements clause’s meaning. In Leocal and Johnson v. U.S. the Court’s decisions construed the definitions of “crime of violence” and “violent felony” to mark out a narrow category of violent, active crimes. Those crimes “are best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk” such as murder and rape as opposed to drunk driving.

    The classification of reckless crimes as “violent felonies” does not comport with ACCA’s purpose. ACCA sets out to identify and address “the sort of offender who, when armed, might deliberately point the gun and pull the trigger” (Begay, 553 U.S. at 146). The Act discharges that goal by looking to a person’s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes poses an uncommon danger of “using a gun deliberately to harm a victim. (Id. at 145.) However blameworthy, reckless or negligent conduct is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms” (Id. at 147). The Supreme Court therefore reversed the judgment, and remanded the case for further proceedings.