United States v. Johnson

• Decision Date: 05 June 2020
• Docket Number: August Term, 2019,No. 19-874,19-874
• Citation: United States v. Johnson, 961 F.3d 181 (2nd Cir. 2020)
• Parties: UNITED STATES of America, Appellant, v. Matthew F. JOHNSON, Barrett B. Johnson, Shawn S. Johnson, Corey J. Rivers, Raheim Howell, Jennifer M. Gourley, Andrea Perkins, Kevin L. Glowacki, Richard D. Farnham, Sr., John A. Lee, Mark L. Burdick, David J. Thompson, Leroy W. Nupp, Jr., Mark W. Decker, Anna M. Benjamin, Scott Peters, Jimi Lin Gourley, Ryan V. Potter, Lori A. Carrow, Beth L. Saifakas, Defendants, Monae Davis, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

961 F.3d 181

UNITED STATES of America, Appellant,

v.Matthew F. JOHNSON, Barrett B. Johnson, Shawn S. Johnson, Corey J. Rivers, Raheim Howell, Jennifer M. Gourley, Andrea Perkins, Kevin L. Glowacki, Richard D. Farnham, Sr., John A. Lee, Mark L. Burdick, David J. Thompson, Leroy W. Nupp, Jr., Mark W. Decker, Anna M. Benjamin, Scott Peters, Jimi Lin Gourley, Ryan V. Potter, Lori A. Carrow, Beth L. Saifakas, Defendants,Monae Davis, Defendant-Appellee.

No. 19-874

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: March 20, 2020

Decided: June 5, 2020

Daniel J. Kane, Attorney, Appellate Section(Matthew S. Miner, Deputy Assistant Attorney General, and Brian A. Benczkowski, Assistant Attorney General, on the brief), Criminal Division, United States Department of Justice, Washington, DC; Tiffany H. Lee, Assistant United States Attorney, Joseph M. Guerra, III, First Assistant United States Attorney, James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellant United States of America.

Marybeth Covert, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-AppelleeMonae Davis.

Before: Katzmann, Chief Judge, WESLEY and BIANCO, Circuit Judges.

Katzmann,Chief Judge:

This case requires us to interpret Congress's latest effort to address the longstanding disparity in federal statutory penalties for crack and powder cocaine offenses.Monae Davis was convicted after pleading guilty to one count of conspiracy to possess with intent to distribute and to distribute "50 grams or more" of crack cocaine.In his plea agreement, Davis conceded that his "relevant conduct" involved at least 1.5 kilograms of crack cocaine, but this larger quantity was not reflected in either his indictment or judgment of conviction.At the time, given Davis's prior drug felony conviction, a conspiracy conviction involving 50 grams or more of crack cocaine mandated a statutory penalty range of 20 years to life in prison.Accordingly, on August 26, 2009, the district court sentenced Davis to the minimum of 20 years, to be followed by 10 years of supervised release.

One year later, President Obama signed into law the Fair Sentencing Act of 2010.As relevant here, Section 2 of the Fair Sentencing Act increased from 50 to 280 grams the amount of crack cocaine necessary to trigger the statutory penalty range that had applied to Davis.But the Fair Sentencing Act was not retroactive to defendants who, like Davis, had been sentenced before its passage.That situation persisted until, several years later, President Trump signed into law the First Step Act of 2018.Section 404 of the First Step Act authorizes district courts to reduce sentences they previously imposed for a "covered offense," which the statute defines as "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act ..., that was committed before August 3, 2010."

Davis moved for a sentence reduction pursuant to Section 404, but the government opposed his motion.The government argued that Davis was ineligible for Section 404 relief because his relevant conduct involved at least 1.5 kilograms of crack cocaine, a quantity that would have triggered the same penalty range both before and after the passage of the Fair Sentencing Act.According to the government, that meant that Davis had not originally been sentenced for a "covered offense" within the meaning of Section 404.The district court rejected that argument, concluding that "it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act."United States v. Davis , 423 F. Supp. 3d 13, 16(W.D.N.Y.2019).Exercising its discretion, the district court then reduced Davis's sentence to time served and eight years’ supervised release.Id. at 17–18.

On appeal, the sole question before us is whether Davis was originally sentenced for a "covered offense" and is therefore eligible for relief under Section 404 of the First Step Act.For the reasons that follow, we conclude that he was.The definitional language "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 ... of the Fair Sentencing Act" conditions eligibility on a defendant's statute of conviction, not the defendant's "actual" conduct.Because the district court imposed a sentence for Davis's violation of, inter alia , 21 U.S.C. § 841(b)(1)(A)(iii), and because Section 2 of the Fair Sentencing Act changed the penalties associated with that statute, we conclude that Davis was sentenced for a "covered offense" and is therefore eligible for discretionary relief under Section 404 of the First Step Act.

BACKGROUND

In May 2009, Monae Davis pleaded guilty to one count of a grand jury indictment charging him with conspiring to violate the federal drug laws by possessing with intent to distribute and distributing crack cocaine.In doing so, Davis admitted to each element of the charged offense, including that "at least 50 grams" of crack cocaine "was reasonably foreseeable to [him] as being within the scope of the [conspiracy]."App'x 74–75.Apart from admitting to each element of the charged offense, Davis also admitted "for the limited purpose of complying with Rule 11(b)(3)" of the Federal Rules of Criminal Procedure that "the amount involved in [his] relevant conduct" was "[a]t least 1.5 kilograms but less than 4.5 kilograms."Id. at 75.¹

The district court accepted Davis's plea.Because a conspiracy to violate the federal drug laws triggers the "same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy,"21 U.S.C. § 846, Davis's conviction subjected him to the statutory penalties set forth in 21 U.S.C. § 841(b)(1)(A), which mandated a minimum sentence of 10 years’ imprisonment and a maximum of life imprisonment for any person who "manufacture[s], distribute[s], ... or possess[es] with intent to ... distribute ... 50 grams or more" of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii)(2006).In Davis's case, subsection (b)(1)(A) mandated an even higher penalty — 20 years to life — because Davis had a prior drug felony conviction.Id.§ 841(b)(1)(A)(2006).

On August 26, 2009, the district court sentenced Davis to 20 years of imprisonment and 10 years of supervised release.In doing so, the district court described its chosen sentence as "[t]he best that I can do ... out of respect and consideration for everything else that I know about in this particular case about [Davis]."App'x 120.Davis appealed the sentence, and we affirmed.United States v. Johnson , 425 F. App'x 66(2d Cir.2011)(summary order);see alsoDavis v. United States , 643 F. App'x 19(2d Cir.2016)(summary order).

A year after Davis was sentenced, President Obama signed into law the Fair Sentencing Act of 2010, Pub. L. No. 111-220,124 Stat. 2372.The Fair Sentencing Act marked the culmination of a decades-long effort to address what had been a 100-to-1 disparity between the amounts of crack and powder cocaine required to trigger the mandatory statutory penalties in 21 U.S.C. § 841(b)(1).SeeDorsey v. United States , 567 U.S. 260, 266-70, 132 S.Ct. 2321, 183 L.Ed.2d 250(2012).As relevant here, Section 2 of the Fair Sentencing Act increased the threshold quantities of crack cocaine required to trigger each of Section 841(b)(1) ’s mandatory statutory penalty ranges.SeeFair Sentencing Act § 2(a), 124 Stat.at 2372.That provision's effect is illustrated here by excerpting the relevant portions of 21 U.S.C. § 841 as they existed at the time of Davis's offense, with the Fair Sentencing Act's modifications overlaid:

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving —

.... (iii) 50 280 grams or more of a mixture or substance ... which contains cocaine base;

....

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life....If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment....

21 U.S.C. § 841(2006), as modified byFair Sentencing Act § 2(a)(1), 124 Stat.at 2372.²Those revisions were not retroactive, however, for defendants like Davis who were sentenced before the Act's passage on August 3, 2010.SeeDorsey , 567 U.S. at 273, 132 S.Ct. 2321.

On December 21, 2018, President Trump signed into law the First Step Act of 2018, Pub. L. No. 115-391,132 Stat. 5194.This appeal turns on Section 404 of the First Step Act, which addressed the retroactive application of the Fair Sentencing Act's reforms.Section 404 provides as follows:

SEC. 404.APPLICATION OF FAIR SENTENCING ACT.

(a) DEFINITION OF COVERED OFFENSE.— In this section, the term "covered offense" means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ..., that was committed before August 3, 2010.

(b)DEFENDANTS PREVIOUSLY SENTENCED.— A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if

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