First Step Act doesn’t cover CCE conviction

Where the defendant pled guilty to continuing a criminal enterprise, or CCE, involving drugs under 21 U.S.C. §§ 848(a) and (c), the court held, in an issue of first impression, that the conviction was not a covered offense under the First Step Act of 2018, or FSA.

Background

In July 1994, Jerrell Antonio Thomas pled guilty to CCE and money laundering. The district court sentenced Thomas to 420 months’ incarceration on the CCE offense and to 240 months’ incarceration for money laundering, to be served concurrently.

On April 12, 2019, Thomas filed a motion to reduce his sentence pursuant to § 404 of the FSA, which the district court denied on grounds that Thomas’s convictions were not covered offenses. On appeal, Thomas argues that his CCE offense, under 21 U.S.C. §§ 848(a) and (c), is a covered offense under the FSA because Congress amended the crack cocaine drug weight required to trigger a mandatory life sentence under § 848(b).

Analysis

In Terry v. United States, 141 S. Ct. 1858 (2021), the Supreme Court clarified that the central question district courts must ask is “whether the Fair Sentencing Act modified the statutory penalties for petitioner’s offense.” In making this determination, the focus of the court’s inquiry is “on the statutory penalties for petitioner’s offense, not the statute or statutory scheme.” This case presents an issue of first impression: whether a petitioner convicted under §§ 848(a) and (c) may seek relief under the FSA.

Thomas first argues that because his CCE conviction was predicated on his offenses for distributing crack cocaine, in violation of §§ 841(a)(1) and 846, his CCE offense is a covered offense as the act modified the statutory penalties for the drug offenses. Thus, Thomas argues that eligibility under the FSA requires only showing that the act “modified the statutory penalties applicable to a violation of a federal criminal statute established as part of the offense of conviction.”

Though the act did modify the penalties for Thomas’s predicate violations under §§ 841(a)(1) and 846, Thomas’s statutory penalty range for violating §§ 848(a) and (c) remained the same before and after the FSA—20 years to life imprisonment, a fine and a term of supervised release. Thus, because Thomas is serving a sentence for violating §§ 848(a) and (c), his offense is not a covered offense under the FSA.

Furthermore, in interpreting § 848, the Supreme Court has clarified that a jury “must unanimously agree not only that the defendant committed some ‘continuing series of violations’ but also that the defendant committed each of the individual ‘violations’ necessary to make up that ‘continuing series.’” This court has further clarified that the underlying factual allegations to satisfy the “continuing series of violations” element does not alter the statutory penalty range depending on whether crack was involved or on the quantity of crack involved. Accordingly, though Thomas’s conviction for §§ 848(a) and (c) required a finding that he committed a continuing series of drug violations, the quantity and drug type of these violations made no difference for sentencing purposes, whereas they would matter to secure a conviction and sentence under § 848(b).

Second, Thomas argues that because the act modified the penalties for § 848(b), and because he could have faced an enhanced minimum life sentence based on his

indictment incorporating his crack cocaine offenses, he is eligible for relief. Specifically, because he was sentenced before Apprendi v. New Jersey, 530 U.S. 466 (2000), Thomas argues that the government could have obtained a mandatory life sentence enhancement by a preponderance of the evidence standard, met by the incorporating the crack cocaine offenses into the CCE count.

Though, some district courts have adopted his argument, Thomas, however, faces two insurmountable challenges. First, Terry rejected this court’s approach in United States v. Woodson, 962 F.3d 812 (4th Cir. 2020), and, so, Thomas’s approach here is also foreclosed. Second, while a petitioner sentenced under § 848(b) would be eligible for resentencing under the act, Thomas is still ineligible for relief because he was convicted and sentenced pursuant to §§ 848(a) and (c). Thus, the possibility that he could have been sentenced under § 848(b) is irrelevant because what matters for the court’s FSA inquiry is whether the act modified the statutory penalties for his offense.

Affirmed.

United States v. Thomas, Case No. 20-6234, May 3, 2022. 4th Cir. (per curiam), from EDVA at Norfolk (Doumar). Frances H. Pratt for Appellant. Richard Daniel Cooke for Appellee. VLW 022-2-116. 17 pp.