For the Defense - Vol. 6, Issue 2 - 34

Under Section 404, with limited exceptions as
set forth below, any defendant sentenced for a
crack offense prior to the FSA can petition for a
reduction in sentence.7
This includes a reduction in
terms of supervised release, as minimums for both
imprisonment and supervision terms decrease
through the § 841(b) statutory subdivisions.
Section 404, broadly written, contains only two
explicit limitations. A court may not entertain a
motion if 1) the defendant was already sentenced
under sections 2 and 3 of the FSA, or 2) if a previous
motion under Section 404 was " denied after a
complete review of the motion on the merits. " 8
Unlike prior efforts to remediate the effects of
harsh crack cocaine sentences through retroactive
Federal Sentencing Guideline amendments,
Section 404 does not limit relief to those whose
Guidelines range or even overall statutory range
is reduced, nor does it limit the extent of any
reduction in sentence other than to the modified
statutory range ( " as if sections 2 and 3 of the
Fair Sentencing Act of 2010 were in effect " ).9
Accordingly, Section 404 makes those who were
sentenced at pre-2010 mandatory minimum
sentences now able to benefit from applicable
Guideline ranges which previously fell below the
mandatory minimum, as well as prior retroactive
Guideline amendments. Career offenders, who
were never eligible for retroactive Guideline
amendment reductions, are now eligible to
seek a reduction in sentence and, thanks to
reduced statutory ranges, may now have reduced
applicable Guideline ranges.10
But as one would anticipate, the 2018 legislation
brought with it several questions regarding
eligibility and the scope of relief available.
Questions of Eligibility
Questions of eligibility under the First Step Act
center on the meaning of " covered offense. " The
first issue of eligibility quickly became apparent
in cases where the relevant conduct quantity
of crack found at sentencing exceeded the new
statutory range thresholds i.e., a defendant who
was charged and convicted of possessing with
intent to distribute five grams or more of crack
but was found to possess 28 grams or more
(the new threshold quantity) at sentencing. The
answer turned on the interpretation of " covered
offense " and " 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. " 11
issued its decision in United States v. Jackson,
34 For The Defense l Vol. 6, Issue 2
holding that § 404(a) eligibility is categorical, and
that the term " statutory penalties " referred to the
penalty subsections in in § 841(b) applicable to the
offense charged, not to the penalties applicable
to a defendant's relevant or actual conduct.12
Consequently, only the quantity element of
conviction determines eligibility, while actual
quantity may be considered at the discretionary
reduction stage by the district court.
While the Jackson decision established that
eligibility for Section 404 relief turns on whether
the statutory penalties for the offense charged
were modified, it did not address how this
interpretation of " covered offense " would apply
in cases involving dual-object conspiracies: cases in
which defendants are convicted of conspiracy to
distribute more than one controlled substance, only
one of which is crack and has a modified statutory
range. The Third Circuit is expected to resolve
the issue, now a Circuit split, very soon in United
States v. Mack.13
In Mack, Judge Hayden in the
District of New Jersey found that the defendants'
dual-object conspiracy convictions were covered
offenses and granted reductions in sentence.14
The
government appealed, and the case was argued in
February 2021. The Court will need to decide if a
dual-object count must be viewed as establishing
dual penalties for the two distinct offenses, one
of which is modified, or a single statutory range
which has not been modified due to the non-crackcontrolled
substance. In the meantime, whether
a dual-object conspiracy motion will be decided,
and how it will be decided, varies by district. In
the District of New Jersey, cases have continued
to move forward with district court judges largely
following Mack.15
In the Eastern and Western
Districts of Pennsylvania, cases are generally being
held pending Mack, but at least one district court
has held that dual-object conspiracy offenses are
not covered, whereas in the Middle District, at
least one district court has reached the opposite
conclusion.16
A second issue of eligibility remains for those
charged under the third sentencing tier, 18 U.S.C.
§ 841(b)(1)(C), which formerly applied to those
convicted of less than 5 grams of crack, and now
applies to less than 28 grams of crack: whether
the (b)(1)(C) penalties were modified by the FSA.
In United States v. Birt,17
the Third Circuit held
In July 2020, the Third Circuit
that Section (b)(1)(C) was not modified by the
FSA because the defendant's offense remained
subject to exact same statutory penalty, in that
case up to 20 years. Also, the subject of a Circuit
split, however, the future of the Birt decision is
uncertain. The Supreme Court is set to address the

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

For the Defense - Vol. 6, Issue 2 - 1
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