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Date: 08-23-2021
Case Style:
United States of America v. JAMES REED, AKA FATS, BYRON COBB, AKA COBB, THEODORE HUFFMAN, JAMAR
PAUL, AKA CROOK, CHRISTOPHER HUFF, SHELTRICE RHODES, CURTIS MOSS,
NORMA THOMPSON,
Defendants,
MARTELL JORDAN, AKA TELLY,
Defendant-Appellan
Case Number: 19-3620-cr
Judge: JOSEPH F. BIANCO
Court: United States Court of Appeals
for the Second Circuit
Plaintiff's Attorney: TIFFANY H. LEE, Assistant United States
Attorney, for James P. Kennedy, Jr.,
United States Attorney for the Western
District of New York
Defendant's Attorney:
Description:
New York, NY - Criminal defense lawyer represented defendant with a dual-object conspiracy in which he was found to have conspired to possess with intent to distribute, and to distribute, (a) 5 kilograms or more of powder cocaine and (b) 50 grams or more of cocaine base (“crack cocaine”) charges.
Defendant-Appellant Martell Jordan appeals from the October 18, 2019
order of the United States District Court for the Western District of New York
(Arcara, J.), denying his motion for a reduced sentence pursuant to Section 404 of
the First Step Act of 2018. As relevant to this appeal, Jordan was convicted of a
dual-object conspiracy in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A),
in which he was found to have conspired to possess with intent to distribute, and
to distribute, (a) 5 kilograms or more of powder cocaine and (b) 50 grams or more
of cocaine base (“crack cocaine”). At the time of Jordan’s sentencing, this
conspiracy conviction, along with Jordan’s prior conviction for a felony drug
offense, subjected him to a statutory mandatory minimum sentence of 20 years’
imprisonment. The district court sentenced Jordan to 300 months’ imprisonment,
which (following a retroactive amendment to the United States Sentencing
Guidelines) it later reduced to 254 months—14 months above the statutory
mandatory minimum for Jordan’s dual-object conspiracy conviction.
Congress enacted the Fair Sentencing Act of 2010 to reduce the statutory
penalties for certain offenses involving crack cocaine, which were
disproportionately high when compared to sentences for offenses involving
4
powder cocaine. In particular, Section 2 of the Fair Sentencing Act increased the
amount of crack cocaine necessary to trigger the statutory penalties provided in
federal drug statute provisions 21 U.S.C. §§ 841(b)(1)(A) and 841(b)(1)(B). Then,
in 2018, Congress enacted the First Step Act, which gave retroactive effect to the
Fair Sentencing Act. Jordan thereafter filed a motion to reduce his sentence
pursuant to the First Step Act, seeking retroactive application of the Fair
Sentencing Act, arguing, inter alia, that his sentence on his dual-object conspiracy
conviction was eligible for a sentence reduction. The district court denied Jordan’s
motion, concluding that he was not eligible for relief under the First Step Act
because his dual-object conspiracy conviction was based not only on a crack
cocaine object, but also on a powder cocaine object, which precluded his conviction
from being classified as a “covered offense” under that Act.
As a result, the principal issue on appeal is whether Jordan’s multi-object
conspiracy conviction, based upon both a crack cocaine object and a powder
cocaine object, qualifies as a “covered offense” eligible for a sentence reduction
under Section 404 of the First Step Act. In light of the statutory language in Section
404, we hold that Jordan’s multi-object conspiracy conviction, with a crack cocaine
object that included a drug-quantity element triggering the statutory penalties set
5
forth in 21 U.S.C. § 841(b)(1)(A), qualifies as a “covered offense” eligible for a
sentence reduction pursuant to the First Step Act. Accordingly, we VACATE the
order of the district court and REMAND the case for further proceedings
consistent with this opinion.
BACKGROUND
On January 22, 2008, a grand jury returned a superseding indictment
charging Jordan with, among other offenses, one count of conspiring to possess
with intent to distribute, and to distribute, (a) 5 kilograms or more of powder
cocaine and (b) 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). On April 22, 2008, a jury found Jordan guilty of this
dual-object conspiracy count and three other counts.1 At the time of Jordan’s
sentencing in 2009, the dual-object conspiracy conviction imposed a statutory
mandatory minimum sentence of 10 years’ imprisonment under 21 U.S.C.
§ 841(b)(1)(A). However, because Jordan had a prior conviction for a “felony drug
1 The four counts of conviction were as follows: (1) Count One—conspiring to possess
with intent to distribute, and to distribute, 5 kilograms or more of powder cocaine and 50 grams
or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); (2) Count
Two—possessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A); (3) Count Three—possessing in excess of 5 grams of crack
cocaine, in violation of 21 U.S.C. § 844(a); and (4) Count Four—possessing a firearm in furtherance
of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1).
6
offense,” he was subject to an increased mandatory minimum sentence of 20 years’
imprisonment. 21 U.S.C. § 841(b)(1)(A) (2009). In addition, based on Jordan’s
offense conduct and his criminal history, the Sentencing Guidelines provided for
an advisory Guidelines range of 235 to 293 months’ imprisonment, which was
adjusted to 240 to 293 months due to the 20-year statutory mandatory minimum
sentence required for Jordan’s dual-object 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, to be
followed by a 10-year term of supervised release.2
The following year, Congress enacted the Fair Sentencing Act of 2010 in
order “[t]o restore fairness to Federal cocaine sentencing.” Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372. As relevant to Jordan’s sentence, Section 2
of the Act increased the amount of crack cocaine necessary to trigger the statutory
penalties for certain crack cocaine offenses in 21 U.S.C. §§ 841(b)(1)(A)
and 841(b)(1)(B). This change effectively reduced the penalties for those crack
2 In connection with the total sentence, the district court sentenced Jordan to the following
concurrent terms of imprisonment and supervised release: 300 months’ imprisonment, to be
followed by 10 years of supervised release, on Counts One and Two; 240 months’ imprisonment,
to be followed by 3 years of supervised release, on Count Three; and 60 months’ imprisonment,
to be followed by 3 years of supervised release, on Count Four.
7
cocaine offenses, and correspondingly reduced the substantial disparity between
the penalties for such offenses and the penalties for federal drug offenses involving
powder cocaine. See Fair Sentencing Act § 2, 124 Stat. at 2372 (increasing the
amount of crack cocaine necessary to trigger the statutory penalties provided in 21
U.S.C. § 841(b)(1)(A)(iii) from 50 grams to 280 grams and the statutory penalties
provided in 21 U.S.C. § 841(b)(1)(B)(iii) from 5 grams to 28 grams). However, the
Fair Sentencing Act was not made retroactive to sentences imposed before its
enactment, and, thus, Jordan was unable to benefit from Section 2 at the time of
the Act’s passage.
Section 8 of the Fair Sentencing Act also granted the United States
Sentencing Commission emergency authorization to “promulgate the guidelines,
policy statements, or amendments provided for in [the Fair Sentencing Act]” by
making “conforming amendments to the Federal sentencing guidelines.” Fair
Sentencing Act § 8, 124 Stat. at 2374. Pursuant to this authority, the Sentencing
Commission issued Amendment 782, which took effect in 2014 and 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.
See U.S.S.G., Supp. to App. C, Amend. 782. In contrast to the Fair Sentencing Act,
8
Amendment 782 was made retroactive. See U.S.S.G., Supp. to App. C, Amend.
788.
Following the passage of Amendment 782, on May 30, 2017, Jordan filed a
pro se motion requesting a sentence reduction under 18 U.S.C. § 3582(c)(2). See 18
U.S.C. § 3582(c)(2) (providing that a court may modify a term of imprisonment if
“a sentencing range . . . has subsequently been lowered by the Sentencing
Commission . . . , if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”). On October 15, 2018, the district court
granted Jordan’s motion and reduced his sentence to 254 months’ imprisonment,
still 14 months above the mandatory minimum sentence applicable to Jordan’s
dual-object conspiracy conviction.
Later that year, Congress enacted the First Step Act of 2018, which, in
relevant part, provides for retroactive application of the Fair Sentencing Act for
any “covered offense” pursuant to Section 404. See First Step Act of 2018 § 404(a),
Pub. L. No. 115-391, 132 Stat. 5222. 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), along with a counseled supplemental memorandum in support of
his motion. See 18 U.S.C. § 3582(c)(1)(B) (“[T]he court may modify an imposed
9
term of imprisonment to the extent otherwise expressly permitted by statute.”).
The government opposed the motion.
On October 18, 2019, the district court denied Jordan’s motion. The district
court observed that Jordan’s dual-object 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 that he
received without considering the new statutory penalties associated with the crack
cocaine object. The district court thus reasoned that the dual-object conspiracy
was not a “covered offense” as contemplated by the First Step Act. As a result, the
district court concluded that Jordan was not entitled to relief under the First Step
Act, as the Fair Sentencing Act could not be applied retroactively to reduce
Jordan’s sentence on his non-covered, dual-object conspiracy offense.3
This appeal followed. The government initially submitted a brief in which
it argued, as it did in the district court, that Jordan’s dual-object conspiracy
conviction was not a “covered offense” under the First Step Act. However,
3 Although the district court did not analyze whether Counts Two and Three (also
involving crack cocaine offenses) were “covered offenses” under the First Step Act, those
questions were rendered moot by the fact that the district court had determined that Jordan was
not eligible for a sentence reduction on Count One and had previously imposed the sentences on
Counts Two and Three to run concurrently to the 254-month sentence on Count One. In other
words, a sentence reduction only on Counts Two and Three could not affect the overall 254-month
sentence without a reduction on Count One.
10
following oral argument, the government submitted a supplemental brief in which
it advised the Court that it had changed its position and now agreed with Jordan.
In particular, the government explained:
Although the government had previously argued otherwise, it has
since reexamined its position and determined, in light of the emerging
consensus in published decisions of the courts of appeals and the
United States Supreme Court’s recent decision in Terry v. United
States, 141 S. Ct. 1858 (2021), that a conspiracy to traffic crack cocaine
in violation of 21 U.S.C. § 841(b)(1)(A)(iii) is a covered offense even if
another object of the conspiracy triggered the same statutory penalty
range. Because Jordan was sentenced for a covered offense, the
district court was authorized—but not required—to reduce his
sentence “as if sections 2 and 3 of the Fair Sentencing Act . . . were in
effect at the time the covered offense was committed.” First Step Act
§ 404(b). This Court should remand for the district court to determine
whether a sentence reduction is appropriate.
Gov’t Suppl. Br. at 1.
DISCUSSION
Section 404 of the First Step Act provides that “[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.” First Step Act § 404(b), 132 Stat. at 5222 (emphasis added).
Section 404 defines “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
11
Sentencing Act of 2010.” First Step Act § 404(a), 132 Stat. at 5222. Jordan argues
on appeal that the district court legally erred in holding that his multi-object
conspiracy conviction was not a “covered offense” under Section 404 and in
concluding that his sentence on that conviction was therefore not eligible for a
sentence reduction under the First Step Act. To resolve this issue, we ask whether
Jordan’s multi-object conspiracy conviction constituted a “violation of a Federal
criminal statute, the statutory penalties for which were modified by Section 2 or 3
of the Fair Sentencing Act.” First Step Act § 404(a), 132 Stat. at 5222. We review
this question of statutory interpretation de novo. United States v. Johnson, 961 F.3d
178, 186 (2d Cir. 2020).
As set forth below, we hold 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” under Section 404 that is eligible for a sentencing reduction,
even when the other objects of the conspiracy (involving different controlled
substances) triggered statutory penalties that were not modified and thus the
applicable minimum and maximum penalties for the conspiracy offense remain
unchanged. In doing so, we join every other circuit to have addressed this issue,
12
each one reaching this same conclusion. See United States v. Spencer, 998 F.3d 843
(8th Cir. 2021); United States v. Winters, 986 F.3d 942, 948 (5th Cir. 2021); United
States v. Taylor, 982 F.3d 1295, 1301 (11th Cir. 2020); United States v. Gravatt, 953
F.3d 258 (4th Cir. 2020).
Jordan was convicted by a jury of a multi-object conspiracy—specifically, of
conspiring to possess with intent to distribute, and to distribute, both 50 grams or
more of crack cocaine and 5 kilograms or more of powder cocaine, in violation of
federal criminal statute 21 U.S.C. § 846. The statutory penalty for his conspiracy
offense is determined by utilizing the penalties that would apply to the
commission of the objectives of the conspiracy. See 21 U.S.C. § 846 (“Any person
who attempts or conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the offense, the commission
of which was the object of the attempt or conspiracy.”). Therefore, the statutory
penalty for Jordan’s multi-object conspiracy offense is set forth in 21 U.S.C. § 841
(providing the penalties for, among other violations, the “manufactur[ing],
distribut[ing], or dispens[ing], or possess[ing] with intent to manufacture,
distribute, or dispense, a controlled substance,” including crack cocaine and
powder cocaine).
13
As relevant here, Section 2 of the Fair Sentencing Act adjusted the statutory
penalties for 21 U.S.C. § 841 by raising the quantity thresholds of crack cocaine
necessary to trigger the statutory penalties provided in 21 U.S.C. § 841(b)(1)(A)(iii)
from 50 grams to 280 grams, and the statutory penalties provided in 21 U.S.C.
§ 841(b)(1)(B)(iii) from 5 grams to 28 grams. Fair Sentencing Act § 2, 124 Stat. at
2372. Conversely, the Fair Sentencing Act did not change the quantity thresholds
of powder cocaine necessary to trigger the statutory penalties provided in 21
U.S.C. § 841(b). See id.
Thus, it stands to follow that had Jordan been convicted for a conspiracy
under 21 U.S.C. § 846 involving only crack cocaine, that conspiracy offense would
qualify as a “covered offense” and would be eligible for a sentence reduction
under the First Step Act because the statutory penalties associated with that
offense were plainly “modified” by Section 2 of the Fair Sentencing Act. It is also
clear and undisputed that had Jordan been convicted of a conspiracy under 21
U.S.C. § 846 involving just powder cocaine, that conspiracy offense would not
qualify as a “covered offense” and would be ineligible for a sentence reduction
under the First Step Act because the statutory penalties associated with that
offense were not “modified” by Section 2 of the Fair Sentencing Act. Less clear,
14
however, are the circumstances presented here—that is, how Section 404 applies
to Jordan’s multi-object conspiracy offense, because it is based upon both an object
involving crack cocaine (which is covered when charged as a separate offense) and
an object involving powder cocaine (which is not covered when charged as a
separate offense).
In United States v. Johnson, 961 F.3d 181 (2d Cir. 2020), we analyzed and
interpreted the statutory language in Section 404. As noted above, Section 404 of
the First Step Act limits eligibility for a sentence reduction to a “covered offense”
and defines that term 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.”
First Step Act § 404(a), 132 Stat. at 5222. In Johnson, we employed various tools of
statutory interpretation, including a “combination of the ‘nearest reasonable
referent’ canon and the ‘anti-surplusage’ canon,” to resolve which offenses could
qualify under Section 404 as a “covered offense.” 961 F.3d at 189. Using these
interpretive tools, we determined that the phrase “Federal criminal statute,” and
not the phrase “violation of a Federal criminal statute,” was the antecedent of the
limiting clause, “the statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act.” Id. at 189. As a result, we ultimately concluded that
15
Section 404 “delineate[d] its coverage by reference to a category of statutory offenses
for which defendants might be sentenced, not the virtually infinite set of specific
actions that might give rise to those sentences.” Id. at 190 (emphasis added). In
other words, “if the statutory penalties associated with a particular ‘Federal
criminal statute’ were modified by Section 2 or 3 of the Fair Sentencing Act, then
any defendant sentenced for violating that ‘Federal criminal statute’ ha[d] been
sentenced for a ‘covered offense,’” and would be eligible for relief under Section
404(b). Id. at 189–90. Thus, under Johnson’s categorical approach, convictions for
statutory offenses involving crack cocaine associated with 21 U.S.C.
§§ 841(b)(1)(A)(iii), 841(b)(1)(B)(iii), and 844—whose penalty provisions were
modified by the Fair Sentencing Act—are “covered offenses” that trigger eligibility
for a sentence reduction under the First Step Act. Id. at 185 n.2, 190–91.
More recently, in Terry v. United States, the Supreme Court addressed the
statutory language in Section 404(a) in holding that offenses under 21 U.S.C.
§ 841(b)(1)(C), which do not trigger a mandatory minimum and whose statutory
penalties were not modified by the Fair Sentencing Act, are not “covered offenses”
that are eligible for a sentencing reduction under the First Step Act. 141 S. Ct. 1858,
1862–64 (2021). In reaching this decision, the Supreme Court did not adopt our
16
view expressed in Johnson that the “statutory penalties” limiting clause referenced
only the phrase “Federal criminal statute”; rather, the Supreme Court held that
“‘statutory penalties’ references the entire, integrated phrase ‘a violation of a
Federal criminal statute.’” Terry, 141 S. Ct. at 1862 (quoting Section 404(a)).
Notwithstanding this difference in interpreting the language of
Section 404(a), the Terry Court also concluded, as we did in Johnson, that eligibility
should be determined by utilizing a categorical approach based upon the statutory
penalties for the offense of conviction, rather than the nature of the offense conduct
in a particular case. Indeed, in rejecting the argument that the Fair Sentencing Act
modified the statutory penalties for an offense under 21 U.S.C. § 841(b)(1)(C), the
Supreme Court made clear (as we did in Johnson) that statutory penalties had
changed for all crack cocaine offenders under 21 U.S.C. §§ 841(b)(1)(A)(iii) and
841(b)(1)(B)(iii). Terry, 141 S. Ct. at 1863 (“The statutory penalties . . . changed for
all subparagraph (A) and (B) offenders.” (emphasis added)). The rationale
underlying that conclusion was that the Fair Sentencing Act changed the quantity
thresholds for crack cocaine in 21 U.S.C. §§ 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii),
which effectively “modified” the statutory penalties associated with the drugquantity element of a defendant’s crack cocaine offense insofar as that offense
17
triggered the mandatory minimums in those provisions. Terry, 141 S. Ct. at 1862–
63 (discussing the drug quantities under 21 U.S.C. §§ 841(b)(1)(A)(iii) and
841(b)(1)(B)(iii) as an element of the offense that had been “plainly ‘modified’” by
the Fair Sentencing Act (quoting Section 404(a))).
An application of Terry’s approach here supports the conclusion that
Jordan’s multi-object conspiracy offense (involving 50 or more grams of crack
cocaine) is a “covered offense” under Section 404 because the statutory penalty
associated with the drug-quantity element of the crack cocaine object under 21
U.S.C. § 846 was undoubtedly modified by Section 2 of the Fair Sentencing Act.
See Fair Sentencing Act § 2, 124 Stat. at 2372. To explain, Jordan’s conviction on
the conspiracy count, as it related to the crack cocaine conspiracy object, included
(as delineated in the superseding indictment) a violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A)—the last of which provides the statutory penalties for
his violation under 21 U.S.C. § 846—given the jury’s finding that the conspiracy
involved at least 50 grams of crack cocaine.
Section 2 of the Fair Sentencing Act increased the quantity threshold of crack
cocaine set forth in 21 U.S.C. § 841(b)(1)(A)(iii) necessary to trigger the statutory
penalties associated with the drug-quantity element of Jordan’s crack cocaine
18
conspiracy object. Thus, Jordan was convicted under a conspiracy count for
violating a statute whose penalty—set forth in 21 U.S.C. § 841(b)(1)(A)(iii)—was
modified by the First Step Act. See Fair Sentencing Act § 2(a)(1), 124 Stat. at 2372
(amending 21 U.S.C. § 841(b)(1)(A)(iii)). That triggers the “covered offense”
definition of the First Step Act, and the statutory text in Section 404 does not
require for eligibility any further inquiry regarding any other statutory penalties
implicated on that count due to the other objects of the multi-object conspiracy
offense.4 Thus, the fact that Count One also involved an object related to powder
cocaine, whose statutory penalties were not modified, does not preclude the
triggering of eligibility under the “covered offense” definition in Section 404. See,
e.g., Taylor, 982 F.3d at 1300 (“[T]he ‘statutory penalties for’ a drug-trafficking
offense include all the penalties triggered by every drug-quantity element of the
offense, not just the highest tier of penalties by any one drug-quantity element.”);
Winters, 986 F.3d at 949 (concluding that “the straightforward, unforced
interpretation of the statutory text is that if Section 2 or 3 of the Fair Sentencing
4 Except, as explained in greater detail below, we do look to the statutes implicated by the
other objects of a multi-object conspiracy offense in order to determine whether the statutory
mandatory minimum sentences required on the other objects of the offense would preclude a
sentence reduction under the First Step Act. See United States v. Echeverry, 978 F.3d 857, 859 (2d
Cir. 2020).
19
Act modified the statutory penalties for at least one object of a multi-object
conspiracy, ‘the statutory penalties’ for that conspiracy offense ‘were modified by’
the Fair Sentencing Act, and the conspiracy satisfies Section 404(a) of the First Step
Act. This remains true regardless of whether the modified penalty supplies the
mandatory minimum that is actually imposed. The ‘statutory penalties’ have to
be considered modified when any statutory penalty for one of the offenses
included in a count of conviction has been changed”).
Put simply, under the text of the First Step Act, a multi-object conspiracy
offense is a “covered offense” if either 21 U.S.C. § 841(b)(1)(A)(iii) or
841(b)(1)(B)(iii) was triggered by the drug-quantity element of an object of that
conspiracy offense. Reaching a contrary conclusion—on the theory that a multiobject conspiracy offense like Jordan’s also implicates the statutory penalties
associated with a powder cocaine object, which were not modified by the Fair
Sentencing Act—requires an extra-textual limitation to the plain language
provided in Section 404. See, e.g., Gravatt, 953 F.3d at 264 (reasoning that “nothing
in the text of the [First Step] Act require[s] that a defendant be convicted of a single
violation of a federal criminal statute whose penalties were modified by section 2
or section 3 of the Fair Sentencing Act,” and that Congress did not include
20
language directing “the Act not to apply if a covered offense was combined with
an offense that is not covered” (emphasis added)).
To be sure, a conspiracy to distribute multiple controlled substances is still
a single offense, as to which a defendant will receive one sentence that covers the
entire multi-object conspiracy. See Braverman v. United States, 317 U.S. 49, 54 (1942).
However, that single offense contains, as separate elements, all the statutory
penalties applicable to the particular controlled substances that are charged as
separate objects in that one offense. See generally United States v. Adams, 448 F.3d
492, 500 (2d Cir. 2006) (“[W]e have held that a Section 846 conspiracy involving
any of the enhancement-penalty provisions of Section 841(b)(1), includes the
additional element of quantity.” (citing United States v. Thomas, 274 F.3d 655, 663
(2d Cir. 2001))). Thus, if the statutory penalties for any one of those drug-quantity
elements was modified by Section 2 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 drug-quantity element for a non-crack-related object of the
conspiracy. See Winters, 986 F.3d at 948 (“In the case of a multi-object offense, the
argument that eligibility requires that there be a change in the statutory range
21
resulting from considering all objects of the conspiracy is adding language to what
Congress stated in simple terms.”); accord Spencer, 998 F.3d at 846.
Other pre-Terry circuit decisions, utilizing the same statutory interpretation
of Section 404(a) later employed by the Supreme Court in Terry, also concluded
that the multi-object conspiracy offense at issue here is a “covered offense” under
the First Step Act. For example, in United States v. Jones, the Eleventh Circuit
disagreed with our approach in Johnson and, consistent with the Supreme Court’s
subsequent decision in Terry, held that “[t]he better reading” of Section 404(a) “is
that the penalties clause modifies the whole phrase ‘violation of a Federal criminal
statute.’” 962 F.3d 1290, 1298 (11th Cir. 2020) (quoting Section 404(a)). Despite the
differing statutory construction, the Eleventh Circuit reached the same result as
we did in Johnson—namely, it adopted the categorical approach, holding that a
“covered offense” “refers to the crack-cocaine offenses for which [21 U.S.C.
§§ 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii)] provide the [statutory] penalties.” Id. at
1300; see also id. (explaining that the Eleventh Circuit’s “interpretation [of Section
404(a)] leads to the same end result as the interpretation by [its] sister circuits,”
including the end result of our decision in Johnson).
22
In Taylor, the Eleventh Circuit, relying upon its statutory analysis in Jones to
address the precise issue here involving a multi-object conspiracy, concluded that
such a conspiracy involving a crack cocaine object with a drug-quantity element
under 21 U.S.C. § 841(b)(1)(A)(iii) constituted a “covered offense” under the First
Step Act, “even if the movant ultimately would be subject to the same statutory
sentencing range as a consequence of another drug-quantity element of the
offense.” Taylor, 982 F.3d at 1301. More specifically, the court explained:
[The movant’s] offense was conspiring to possess with intent to
distribute at least 5 kilograms of powder cocaine and at least 50 grams
of crack cocaine. Before the Fair Sentencing Act, those drug quantities
satisfied the drug-quantity elements in § 841(b)(1)(A)(ii) (powder
cocaine) and (A)(iii) (crack cocaine), both of which triggered the
highest tier of penalties, including a sentence of imprisonment for ten
years to life. After the Fair Sentencing Act, the powder-cocaine
element of the offense triggered the same ten-to-life penalty, but the
crack-cocaine element triggered a different, lower category of
penalties. [The movant’s] offense was “a violation of a Federal
criminal statute, the statutory penalties for which were modified by
section 2” of the Fair Sentencing Act, and he committed his offense
before the Fair Sentencing Act became effective. That means his
offense is a covered offense. And the First Step Act gives a movant
like [the one here] who was sentenced for a covered offense the
opportunity to make his case for a reduction in his sentence.
Id.; accord Spencer, 998 F.3d at 845. As the reasoning in Taylor demonstrates,
notwithstanding that we parsed Section 404(a)’s language in Johnson in a manner
different from the Supreme Court in Terry, the categorical approach that we used
23
in Johnson and that the Supreme Court adopted in Terry is entirely consistent with
our holding here.
The government initially contended that our decision in United States v.
Echeverry, 978 F.3d 857 (2d Cir. 2020), supports its view that Jordan’s multi-object
conspiracy conviction is not eligible for a sentence reduction under Section 404.
As the government now concedes, however, Echeverry is distinguishable on its
facts and has no application here. Like Jordan, Echeverry was convicted on a
conspiracy charge with multiple objects, including a crack cocaine object and two
other non-crack cocaine objects (powder cocaine and heroin). Id. at 858–59.
However, unlike the instant case, the district court originally sentenced Echeverry
to the mandatory minimum sentence required by his two non-crack cocaine objects.
Id. at 859.
Under these circumstances, we held that because “[t]he First Step Act
permits a district court to reduce a sentence only to the extent that the sentence
could have been lower if sections 2 and 3 of the Fair Sentencing Act were in effect
at the time the covered offense was committed,” Echeverry was “ineligible for First
Step Act relief.” Id. (alteration and internal quotation marks omitted); accord
Winters, 986 F.3d at 951 (“A district court lacks authority to reduce a sentence that
24
is already at the statutory floor. Section 404(b) does not provide discretion for
resentencing if the movant’s current sentence is the statutory minimum penalty
under the Fair Sentencing Act. A sentence shorter than the statutory minimum
could not be imposed ‘as if’ the Fair Sentencing Act was in effect.”); Jones, 962 F.3d
at 1303 (“If the movant’s sentence would have necessarily remained the same had
the Fair Sentencing Act been in effect, then the district court lacks the authority to
reduce the movant’s sentence. Any reduction the district court would grant would
not be ‘as if’ the Fair Sentencing Act had been in effect. That is, the First Step Act
does not permit a reduction when the Fair Sentencing Act could not have
benefitted the movant.”).
As described above, the crucial distinction between Echeverry and our case
is that, whereas Echeverry’s sentence was already at the statutory mandatory
minimum for his non-crack cocaine objects and his sentence could not be reduced
regardless of the Fair Sentencing Act’s modifications to crack cocaine penalties,
Jordan’s sentence, at 254 months’ imprisonment, is 14 months above the statutory
minimum for his non-crack cocaine object and can be reduced. Therefore, even
under Echeverry, Jordan’s overall sentence for his multi-object conspiracy offense
is eligible for reduction under Section 404 because it “could have been lower if
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sections 2 and 3 of the Fair Sentencing Act were in effect at the time the covered
offense was committed.” Echeverry, 978 F.3d at 859 (internal citations omitted).
We do recognize that in an unpublished decision, United States v. Lott, 830
F. App’x 365 (2d Cir. 2020), we held that a multi-object conspiracy based upon both
a crack cocaine object and a powder cocaine object did not qualify as a “covered
offense” as contemplated by Section 404. However, we are not bound by Lott, as
it is an unpublished summary order, and we believe that Lott was incorrectly
decided. Accord Winters, 986 F.3d at 950. Relying on our decision in Echeverry, we
concluded in Lott that a pro se defendant was not eligible for a sentence reduction
because he was “convicted of conspiring to distribute both [crack] cocaine . . . and
powder cocaine,” and thus “the penalties for his participation in a drug conspiracy
were not modified by the Fair Sentencing Act.” Lott, 830 F. App’x at 367.
However, in relying on Echeverry, we did not expressly consider whether the
defendant in Lott had received a sentence above the statutory mandatory
minimum, and if his sentence could be reduced, as we did in Echeverry. As a result,
to the extent Lott can be read to categorically exclude such multi-object
conspiracies from Section 404 coverage, we decline to follow that holding and
resolve any uncertainty with our decision today by concluding that multi-object
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conspiracies, involving a crack cocaine object triggering the statutory penalties in
21 U.S.C. § 841(b)(1)(A)(iii) or § 841(b)(1)(B)(iii), categorically qualify as “covered
offense[s]” under Section 404, as long as the sentence imposed on the conspiracy
offense is not already at the statutory mandatory minimum and therefore
ineligible for any reduction.
Before changing its position, the government warned that such a holding
would “yield[] illogical results.” Gov’t Br. at 13. That argument was based on the
view that it would be paradoxical that a defendant who was charged with and
convicted of conspiracy involving only a powder cocaine offense would not be
eligible for First Step Act relief, and yet a second defendant who was charged with
and convicted of more—a conspiracy involving both a powder cocaine offense and
a crack cocaine offense, would be eligible for a sentence reduction. We disagree
with such an argument. Our approach, consistent with the statutory text, is logical
and entirely consistent with Section 404’s underlying purpose.
That argument fails to consider that, in enacting Section 404, Congress
sought to further address the historical sentencing disparity between offenses
involving crack cocaine and powder cocaine because it had come to view (in the
Fair Sentencing Act) the statutory penalties for crack cocaine offenses as too severe,
27
particularly when compared to the statutory penalties for powder cocaine
offenses. See Dorsey v. United States, 567 U.S. 260, 268–69 (2012). Therefore, in the
First Step Act, Congress sought to provide district courts with the opportunity to
retroactively reduce sentences associated with offenses involving crack cocaine
that may have been unfairly impacted by this historical disparity. Given this
purpose, there would be no reason at all under Section 404 to revisit a pre-Fair
Sentencing Act sentence for a drug crime when the only controlled substance
involved was one other than crack cocaine.
In contrast, Congress clearly intended to provide an opportunity for a
sentence reduction in any case involving crack cocaine offenses triggering the
penalty provisions in 21 U.S.C. § 841(b)(1)(A)(iii) or § 841(b)(1)(B)(iii) because of
the possibility that the district court’s pre-Fair Sentencing Act view of crack
cocaine may have unfairly impacted its sentences on those offenses. There would
have been no logical reason to exclude multi-object conspiracies containing a crack
cocaine object, and other objects involving other controlled substances, from that
broad remedial purpose. In other words, if a district court had imposed a sentence
pre-Fair Sentencing Act for a multi-object conspiracy involving both a crack
cocaine offense and a powder cocaine object implicating these penalty sections,
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Congress undoubtedly wanted to allow the district court in its discretion to reexamine the sentence on that multi-object conspiracy count to determine whether
it was impacted by the pre-Fair Sentencing Act view of the gravity of crack cocaine
crimes in a manner that caused the overall sentence on that multi-object count to
be excessively high.
By way of example, assume a district court judge had sentenced a defendant
prior to the Fair Sentencing Act on a multi-object conspiracy involving exactly 50
grams of crack cocaine and exactly 5 kilograms of powder cocaine. Even after
applying the reduced penalties after the Fair Sentencing Act for certain offenses
involving crack cocaine, the mandatory minimum of 10 years’ imprisonment and
maximum of life on this multi-object conspiracy count would remain the same
because of the unchanged penalties for offenses involving powder cocaine.
Assume further that the district judge’s decision, at the time of the original
sentence, to impose a sentence above (even way above) the 10-year mandatory
minimum, was driven entirely by her pre-Fair Sentencing Act view of the gravity
of crack cocaine offenses and, but for that view, she would have otherwise
imposed a sentence for the multi-object conspiracy count at the 10-year mandatory
minimum. The district judge now realizes that her original sentence was unfair,
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in that her treatment of the crack cocaine object was unwarranted and would
reduce the defendant’s sentence to the 10-year mandatory minimum if given the
opportunity.
This is precisely the type of situation that Section 404 of the First Step Act
was designed to address. The government had initially maintained that the
district judge is prohibited from doing so because of the presence of the powder
cocaine object within the multi-object conspiracy count, even though the
conviction on that object was completely immaterial to the imposition of the higher
sentence due to the crack cocaine object. That position (now abandoned by the
government) is not only inconsistent with the categorial approach in Johnson and
Terry, but is also contrary to the statutory purpose of Section 404.
We emphasize that we do not know in this particular case how Jordan’s
participation in the crack cocaine object played into the district court’s overall
sentencing decision on the multi-object conspiracy count. And, of course, the First
Step Act does not “require a court to reduce any sentence pursuant to this section”
in cases where it does not believe that the original sentence involving a defendant’s
crack cocaine offense warrants a reduction. First Step Act § 404(c), 132 Stat. at 5222.
Instead, our holding on eligibility under the First Step Act simply affords the
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district court the discretion to revisit a sentence on a multi-object conspiracy
involving crack cocaine and reduce that sentence when it deems such a reduction
appropriate in light of all applicable sentencing factors.
In sum, we hold that Jordan’s entire multi-object conspiracy offense under
21 U.S.C §§ 846, 841(a)(1), and 841(b)(1)(A), based in part upon a crack cocaine
object whose statutory penalties were modified by the Fair Sentencing Act,
constitutes a “covered offense” within the meaning of Section 404(a), even though
it contains a separate object for distribution of another controlled substance whose
statutory penalties were not so modified. We therefore conclude that Jordan’s 254-
month sentence on his multi-object conspiracy conviction is eligible for a sentence
reduction under Section 404(b) of the First Step Act.5
Outcome: For the reasons stated, we VACATE the order of the district court and
REMAND the case for further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: