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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