United States v. Willis

Decision Date30 September 2019
Docket Number CRIMINAL ACTION NO. 04-269-16,CRIMINAL ACTION NOS. 06-205-3 & 06-207-1,CRIMINAL ACTION NO. 07-205-2
Citation417 F.Supp.3d 569
Parties UNITED STATES of America v. Howard WILLIS United States of America v. Derek Russell United States of America v. Samuel Freeman
CourtU.S. District Court — Eastern District of Pennsylvania

Andrea Foulkes, David E. Troyer, Frank A. Labor, III, Bernadette McKeon, United States Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM

KEARNEY, District Judge

Three men presently serving mandatory minimum sentences for possession and distribution of crack cocaine ask us to reduce their sentences because Section 404 of the First Step Act of 2018 allows district court judges to reduce crack cocaine mandatory minimum sentences based on the specific quantity. The men do not ask us to reduce their sentences for extraordinary and compelling reasons after first requesting relief from the Bureau of Prisons under Section 603 of the First Step Act. They instead argue we should interpret Section 404 of the First Step Act as making them eligible for reducing the mandatory minimums regardless of the quantity of crack cocaine involved in their conviction because Congress recognized the disparity in mandatory minimums between persons sentenced for crack cocaine as opposed to powder cocaine in 2010 but did not retroactively apply the new crack cocaine ranges for those sentenced before August 3, 2010. We must interpret the potential retroactivity provided in Section 404 of the First Step Act by comparing their sentences to persons sentenced for the same amount of crack cocaine after the Fair Sentencing Act of 2010. After analyzing the statutory text and legislative intent, we find the reduced mandatory minimum sentences in the Fair Sentencing Act may retroactively apply to those sentenced before August 3, 2010 if the actual amount of crack cocaine is either established in the indictment or in filed documents confirms eligibility. We will not find all charges are eligible based solely on the indictment's recital of the minimum amount then necessary for the mandatory minimum sentence. If we know the amount of crack cocaine in the conviction, why should we not sentence at this amount? We would do so for those sentenced after August 3, 2010.

Applying this standard, we deny the three men's motions for reduced sentences based on the mandatory minimums after August 3, 2010. Messrs. Willis and Freeman are not eligible for resentencing under Section 404. Mr. Russell is serving a life sentence for powder cocaine and nothing in Section 404 of the First Step Act changes this sentence.

I

In the 1986 Anti-Drug Abuse Act, Congress set "mandatory minimum penalties of [five] and [ten] years applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense."1 The Act set five and ten year mandatory minimum penalties for crack cocaine and powder cocaine drug offenses but "treated crack cocaine crimes as far more serious."2 To trigger the Act's ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A), an offender must have possessed fifty or more grams of crack cocaine compared to 5,000 or more grams of powder cocaine.3 The five-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B) applied to offenders possessing at least five but less than fifty grams of crack cocaine and offenders possessing at least 500 but less than 5,000 grams of powder cocaine.4 The amount of crack or powder cocaine possessed relative to punishment "produc[ed] a 100-to-1 crack-to-powder ratio."5

During the next two decades, the United States Sentencing Commission, along with law enforcement and political bodies, "strongly criticized Congress' decision to set the crack-to-powder mandatory minimum ratio at 100-to-1."6 The Sentencing Commission, concerned with the disparate sentences between powder cocaine and crack cocaine offenses and the discriminatory impact of the sentencing disparity, issued four separate reports urging Congress to reduce the ratio and to raise the quantity of crack cocaine triggering mandatory minimum sentences.7 On August 3, 2010, Congress accepted the Commission's recommendation in the Fair Sentencing Act.8

The Fair Sentencing Act of 2010 reduced the mandatory minimum sentencing disparity for powder cocaine and crack cocaine from 100-to-1 to 18—to—1 by increasing the amount of crack cocaine triggering a mandatory minimum sentence.9 The 2010 Act applied to sentences after August 3, 2010. Section 2(a) increased the crack cocaine amounts triggering the ten-year mandatory minimum from fifty grams to 280 grams.10 Section 2(a) also increased the five-year mandatory minimum threshold from five grams to twenty-eight grams.11 Section 3 eliminated the mandatory minimum for simple possession of crack cocaine.12 While this radically changed the sentences for those sentenced on or after August 3, 2010, the Fair Sentencing Act did not affect those sentenced before August 3, 2010 because it did not direct courts to apply the quantity thresholds retroactively.

Eight years later, President Trump signed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or the "First Step Act" of 2018,13 allowing courts to retroactively apply the Fair Sentencing Act's crack cocaine reductions to those sentenced before August 3, 2010.14 The disputed languages in the First Step Act provides "[a] court that imposed a sentence for a covered offense may ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed."15 Section 404(a) of the First Step Act defines a "covered offense" 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 of 2010, that was committed before August 3, 2010."16

Section 603 of the First Step Act offers defendants a separate opportunity to decrease their sentence. Section 603 of the First Step Act modifies 18 U.S.C.A. § 3582, specifically 18 U.S.C.A. § 3582(c)(1)(A). The modification allows defendants, after they exhaust "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," to move the court themselves to reduce the terms of their imprisonment.17 A court may, under 18 U.S.C.A. § 3582(c)(1)(A)(i) find "extraordinary and compelling reasons" warranting a reduction in the defendant's sentence.18

Many persons sentenced under the Anti-Drug Abuse Act's original 100-to-1 crack cocaine ratio are now beginning to challenge their sentences under the First Step Act's retroactivity provision in Section 404. We do not observe many challenges under Section 603.19 Nevertheless, faced with Section 404 challenges, courts must look to Section 404 to determine a challenger's eligibility for resentencing. One aspect of eligibility is explicit: only persons sentenced before August 3, 2010 are entitled to relief. But the other aspect of eligibility—the meaning of a "covered offense," which is the key phrase Congress uses to afford judicial discretion—is less clear. So far, district courts have interpreted "covered offense" differently, resulting in diverging outcomes for whether a person is eligible for resentencing on a crack cocaine offense.

II

United States District Courts do not uniformly interpret the Section 404(a)'s definition of "covered offense."20 The split is based on different interpretive approaches to whether the dependent clause of Section 404(a)"the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010"—modifies "violation" or "a Federal criminal statute."

One approach, termed the "indictment controls theory," interprets "a Federal criminal statute" to modify the dependent clause "the statutory penalties for which were modified...."21 Under this reading, courts look to the indictment to determine whether the grand jury returned an indictment against the offender under the Anti-Drug Abuse Act's crack cocaine provisions in Section 841(b)(1)(A) or Section 841(b)(1)(B). If the grand jury charged the defendant with "[fifty] grams or more" or "[five] grams or more" of crack cocaine in the indictment, then the defendant is eligible for resentencing if sentenced before August 3, 2010 because the retroactively applied Fair Sentencing Act "modified" the quantities triggering the mandatory minimum for these offenses. A similar approach, termed "statute of conviction," interprets the definition similarly but finds "covered offense" applies to a conviction under pre-Fair Sentencing Act mandatory minimums for crack cocaine offenses.

The other approach, termed the "offense controls theory," interprets Section 404(a)'s dependent clause to modify the word "violation"; this approach reads "violation" to signify actual conduct—i.e. , the amount of crack cocaine involved in the underlying criminal proceedings. The only persons with "covered offenses" who can benefit from the First Step Act under this reading are those who possessed an amount of crack cocaine reduced from the ten to five year minimum (between 280 grams and five grams), removed from the five-year statutory minimum (between twenty-eight and five grams), or removed from the mandatory minimum for simple possession (between five grams and one gram).

The person challenging his sentence has typically asked us to apply the indictment controls theory because it more readily provides a way for the judge to consider a resentence. The United States, when contesting these motions for sentence reductions, has generally asked us to apply the offense controls theory as it is more restrictive about which persons are eligible for a possible sentence reduction before a judge considers the sentencing factors of 18 U.S.C. § 3553.

A

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