Terry v. United States

• Decision Date: 14 June 2021
• Docket Number: No. 20-5904,20-5904
• Citation: 210 L.Ed.2d 108,141 S.Ct. 1858
• Parties: Tarahrick TERRY, Petitioner v. UNITED STATES
• Court: U.S. Supreme Court

141 S.Ct. 1858

210 L.Ed.2d 108

Tarahrick TERRY, Petitioner

v.UNITED STATES

No. 20-5904

Supreme Court of the United States.

Argued May 4, 2021

Decided June 14, 2021

Elizabeth B. Prelogar, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Respondent.

Justice THOMAS delivered the opinion of the Court.

In 1986, Congress established mandatory-minimum penalties for cocaine offenses. If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence. Congress set the quantity thresholds far lower for crack offenses than for powder offenses. But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold. The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence. The question here is whether crack offenders who did not trigger a mandatory minimum qualify. They do not.

I

In the mid-1980s, the United States witnessed a steep surge in the use of crack cocaine, and news of high-profile, cocaine-related deaths permeated the media. Witnesses before Congress, and Members of Congress themselves, believed that a "crack epidemic" was also fueling a crime wave. Crack, they said, was far more addictive and dangerous than powder cocaine; it was cheaper and thus easier to obtain; and these and other factors spurred violent crime.¹

In response to these concerns, Congress quickly passed a bill with near unanimity.² The new law created mandatory-minimum penalties for various drug offenses, and it set much lower trigger thresholds for crack offenses. The Act included two base penalties that depended on drug quantity: a 5-year mandatory minimum (triggered by 5 grams of crack or 500 grams of powder) and a 10-year mandatory minimum (triggered by 50 grams of crack or 5 kilograms of powder). 100 Stat. 3207–2, 3207–3. The Act also created a third penalty—possession with intent to distribute an unspecified amount of a schedule I or II drug—that did not treat crack and powder offenses differently, did not depend on drug quantity, and did not include a mandatory minimum. Id., at 3207–4.

Petitioner was convicted under this Act and subjected to the third penalty. In exchange for the Government dropping two firearm charges, petitioner pleaded guilty in 2008 to possession with intent to distribute an unspecified amount of crack. At sentencing, the District Court determined that his offense involved about 4 grams of crack, a schedule II drug. See 21 U.S.C. § 812 ; 21 CFR § 1308.12 (2006). It also determined that petitioner was a career offender under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual § 4B1.1(b) (Nov. 2008) (USSG). The career-offender Guidelines controlled because they recommended a higher sentence than the drug-quantity Guidelines. Ibid. The District Court sentenced petitioner to 188 months, the bottom of the career-offender Guidelines range.

All this occurred while Congress was considering whether to change the quantity thresholds for crack penalties. In 1995, the Sentencing Commission issued a report to Congress stating that it thought the 100-to-1 ratio was too high. In particular, it stressed that the then-mandatory Guidelines helped make the ratio excessive because the Guidelines, which were not yet in effect when Congress created the ratio, addressed some of Congress' concerns about crack. Addressing those concerns through both the ratio and the Guidelines, the Commission said, "doubly punished" offenders. United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 195–197 (Feb. 1995). Separately, although the Commission thought that it was reasonable to conclude that "crack cocaine poses greater harms to society than does powder cocaine," it determined that the ratio overstated the difference in harm. Ibid. Finally, the Commission noted that persons convicted of crack offenses were disproportionately black, so a ratio that was too high created a "perception of unfairness" even though there was no reason to believe "that racial bias or animus undergirded the initiation of this federal sentencing law." Id., at 153–154, 192. Members of Congress responded to this and similar reports. For example, Senators Sessions and Hatch introduced legislation in 2001 to lower the ratio to 20 to 1. S. 1874, 107th Cong., 1st Sess. Representative Jackson-Lee led a similar effort in the House, but would have created a 1-to-1 ratio. H. R. 4545, 110th Cong., 1st Sess. (2007).

Two years after petitioner was sentenced, these attempts to change the ratio came to fruition. In the Fair Sentencing Act of 2010, 124 Stat. 2372, note following 21 U.S.C. 801, Congress reaffirmed its view that the triggering thresholds should be lower for crack offenses, but it reduced the 100-to-1 ratio to about 18 to 1. It did so 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. § 2(a), 124 Stat. 2372. These changes did not apply to those who had been sentenced before 2010.

The Sentencing Commission then altered the drug quantity table used to calculate Guidelines ranges. USSG § 2D1.1(c). The Commission decreased the recommended sentence for crack offenders to track the statutory change Congress made. It then made the change retroactive, giving previous offenders an opportunity for resentencing. Courts were still constrained, however, by the statutory minimums in place before 2010. Many offenders thus remained sentenced to terms above what the Guidelines recommended. Congress addressed this issue in 2018 by enacting the First Step Act. This law made the 2010 statutory changes retroactive and gave courts authority to reduce the sentences of certain crack offenders.

Petitioner initially sought resentencing under the new, retroactive Guidelines. But because his sentence was based on his recidivism, not his drug quantity, his attempt was unsuccessful. After Congress enacted the First Step Act, petitioner again sought resentencing, this time contending that he falls within the category of crack offenders covered by that Act. The District Court denied his motion, and the Eleventh Circuit affirmed, holding that offenders are eligible for a sentence reduction only if they were convicted of a crack offense that triggered a mandatory minimum. 828 Fed.Appx. 563 (2020) (per curiam ). We granted certiorari. 592 U.S. ––––, 141 S.Ct. 975, 208 L.Ed.2d 511 (2021).

On the day the Government's brief was due, the United States informed the Court that, after the change in administration, it would no longer defend the judgment. Because of the timeline, the Court rescheduled argument, compressed the briefing schedule, and appointed Adam K. Mortara as amicus curiae to argue in support of the judgment. He has ably discharged his responsibilities.

II

An offender is eligible for a sentence reduction under the First Step Act only if he previously received "a sentence for a covered offense." § 404(b), 132 Stat. 5222. The Act defines " ‘covered offense’ " as "a violation of a Federal criminal statute, the statutory penalties for which were modified by" certain provisions in the Fair Sentencing Act. § 404(a), ibid. Here, "statutory penalties" references the entire, integrated phrase "a violation of a Federal criminal statute." United States v. Jones , 962 F.3d 1290, 1298 (CA11 2020). And that phrase means "offense." Black's Law Dictionary 1300 (11th ed. 2019) ("A violation of the law"). We thus ask whether the Fair Sentencing Act modified the statutory penalties for petitioner's offense. It did not.

The elements of petitioner's offense are presented by two subsections of 21 U.S.C. § 841. Subsection (a) makes it unlawful to knowingly or intentionally possess with intent to distribute any controlled substance. Subsection (b) lists additional facts that, if proved, trigger penalties.

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-to-40 years, in addition to financial penalties and supervised release. And 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).

Petitioner was convicted of the third offense—subparagraph (C). Before 2010, the statutory penalties for that offense were 0-to-20 years, up to a $1 million fine, or both, and a period of supervised release.³ After 2010, these statutory penalties remain exactly the same. The Fair Sentencing Act thus did not modify the statutory penalties for petitioner's offense.

Petitioner's offense is starkly different from the offenses that triggered mandatory minimums. The Fair Sentencing Act plainly "modified" the "statutory penalties" for those. It did so by increasing the triggering quantities from 50 grams to 280 in subparagraph (A) and from 5 grams to 28 in subparagraph (B). Before 2010, a person charged with the original elements of subparagraph (A)—knowing or intentional possession with intent to distribute at least 50 grams of crack—faced a prison range of between 10 years and life. But because the Act increased the trigger quantity under subparagraph (A) to 280 grams, a person charged with those original elements after 2010 is now subject to the more lenient...