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Circuit Rejects Government’s Narrow Interpretation of the First Step Act of 2018

In United States v. Davis, the Second Circuit (Katzmann, Wesley, Bianco) affirmed the district court’s order granting the defendant’s motion for a reduced sentence under Section 404 of the First Step Act of 2018.  The government had appealed the order, arguing that eligibility for Section 404 relief turns on a defendant’s actual conduct as opposed to the statutory offense for which a defendant was sentenced.  The Court disagreed and issued a decision that brings the Second Circuit in line with at least six other circuit courts that have issued precedential opinions in the last year with similar holdings.  It is reassuring to see the Circuit rule in a way that reinforces the protections offered by the First Step Act, over the government’s objections in this case.

Background

Davis pleaded guilty in May 2009 to one count of conspiracy to violate the federal drug laws by possessing with intent to distribute and distributing crack cocaine.  In connection with that plea, Davis admitted to the elements of the charged offense, including that “at least 50 grams” of crack cocaine was reasonably foreseeable as being within the scope of the conspiracy.  In addition, for the limited purpose of complying with the requirements of Federal Rule of Criminal Procedure 11(b)(3), Davis also admitted that the drug quantity involved in his relevant conduct was at least 1.5 kilograms but less than 4.5 kilograms.  Davis was subject to the mandatory minimum penalties of 21 U.S.C. § 841(b)(1)(A) and, because of a prior drug felony conviction, Davis was ultimately sentenced to a 20-year term of imprisonment, which was the applicable mandatory minimum.

A year after sentencing, President Obama signed into law the Fair Sentencing Act of 2010.  Section 2 of that law increased the threshold quantity of crack cocaine required to trigger the mandatory statutory penalty ranges set forth in 21 U.S.C. § 841(b)(1).  As relevant to Davis’s conviction, the minimum quantity of cocaine base necessary to trigger the statute’s mandatory minimum sentence provisions increased from 50 grams to 280 grams.  The 2010 Act provided no relief for Davis, however, as it was not retroactive for defendants who were sentenced before August 3, 2010.

In December 2018, President Trump signed into law the First Step Act of 2018.  Section 404 of that law authorizes a sentencing court to impose a reduced sentence, in its discretion, based on a retroactive application of Sections 2 and 3 of the Fair Sentencing Act.  Only defendants who were convicted of a “covered offense” are eligible for that discretionary relief.  Section 404 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.”

In February 2019, Davis moved for a reduced sentence under Section 404 of the First Step Act.  The government opposed, arguing (i) that the penalties for Davis’s offense of conviction were not modified by the Fair Sentencing Act because his “actual conduct” involved at least 1.5 kilograms of narcotics (i.e., more than the new 280 gram threshold set forth in the Fair Sentencing Act), and (ii) that Davis’s indictment would have alleged 280 grams or more of cocaine base had the Fair Sentencing Act been in effect at the time Davis committed his crime.  The district court granted Davis’s motion and reduced his term of imprisonment to time served.  In doing so, the district court held that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.”  The district court reasoned that because Davis was convicted for a violation of 21 U.S.C. § 846 as it relates to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851, and because the penalties associated with those statutes were modified by Section 2 or Section 3 of the Fair Sentencing Act, Davis had been sentenced for a “covered offense” under the First Step Act.  The government appealed.

The Court’s Analysis

The Court’s analysis concerned a narrow question of statutory interpretation regarding the antecedent of the limiting clause in Section 404 of the First Step Act: “the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act.”  Davis argued that the term “Federal criminal statute” was the antecedent, whereas the government argued that it was the complete phrase “violation of a Federal criminal statute.”

Relying on the so-called anti-surplusage canon, the Court held that the term “Federal criminal statute” was the antecedent of the limiting clause in Section 404.  It reasoned that the term could serve no purpose except as the antecedent of the limiting clause because the only “violations” affected by Sections 2 and 3 of the Fair Sentencing Act are those violations associated with “federal criminal statutes.”  According to the Court, “reading ‘violation of a Federal criminal statute’ as the antecedent would thus attribute no meaning to Congress’s decision to include the words ‘of a Federal criminal statute’ in the definition of ‘covered offense.’”

The Court found further support for its holding in Section 404’s phrase “the statutory penalties . . . were modified by section 2 or 3 of the Fair Sentencing Act.”  The Court noted that Sections 2 and 3 of the Fair Sentencing Act did not apply to Davis and other defendants who were sentenced prior to August 3, 2010, meaning that the penalties for those defendants’ “actual conduct” were not modified by Section 2 or 3 of the Fair Sentencing Act.  According to the Court, Section 404 would therefore be “a dead letter” if the government’s “actual conduct” interpretation of Section 404 were accepted.

The Court also rejected the government’s assertion that Davis’s interpretation of Section 404 would create unfair sentence disparities among defendants depending on the timing of their sentences.  In advancing this argument, the government sought to compare Davis to a similarly situated hypothetical defendant who was charged and convicted for the same conduct after passage of the Fair Sentencing Act, positing that this hypothetical defendant would not be eligible for relief under Section 404.  In response, the Court noted that the Fair Sentencing and First Step Acts were meant to eliminate unwarranted sentencing disparities, but not necessarily all sentencing disparities.  The Court opined that it would not be consistent with the purpose of either law to “level down” by withholding the opportunity for a reduced sentence from everyone alike.  Although the government argued that the Court’s interpretation could lead to an “unwarranted procedural windfall” for defendants like Davis, the Court observed that Section 404 relief was ultimately discretionary, and a district judge may exercise its discretion to deny relief to a previously sentenced defendant where appropriate.  Finally, the Court rejected the government’s contention that Davis’s indictment would have alleged 280 grams or more of cocaine base had the Fair Sentencing Act been in place at the time when he was charged.  The Court noted that this was “only an assumption,” stating that there is “more standing between a particular defendant and a particular sentence than the government’s charging decision.”

Commentary

The Davis decision is significant and broadens the number of defendants who may be eligible to apply for a sentence reduction under Section 404 of the First Step Act, an outcome that aligns with decisions already issued by many other sister circuits.  Depending on the statute of conviction and the specific allegations in the indictment, Davis demonstrates how sentencing courts may be able to take back some of the discretion that they had lost in connection with sentencing decisions for defendants previously sentenced to mandatory minimum sentences for violating 18 U.S.C. § 841.  As seen here, Davis ultimately served a prison term of about 10 years in connection with conduct that still currently carries a mandatory minimum sentence of 20 years imprisonment (in those cases in which the government elects to file a prior felony information under 21 U.S.C. § 851, which the government is not required to do and only files in certain cases). 

While Congress and the Sentencing Commission have implemented several reforms in the past decade to reduce the lengthy prison sentences associated with drug crimes, we will have to wait and see whether additional reforms will be pursued and enacted in the coming years.  The First Step Act, after all, was meant only to be a first step in the direction of comprehensive sentencing and criminal justice reform.