Fifth Circuit joins others saying offense of conviction, not claims about underlying conduct, determines eligibility for retroactive relief under FIRST STEP Act

A helpful reader made sure I did not miss a notable opinion from a Fifth Circuit panel yesterday in US v. Jackson, No. 19-20346 (5th Cir. Dec. 16, 2019) (available here).  The defendant in Jackson ultimately loses in his battle to benefit from the Fair Sentencing Act retroactivity provision of the FIRST STEP Act, but in so doing the Fifth Circuit addresses an important eligibility war that has been ranging in courtrooms nationwide.  Here is part of the panel's discussion:

The first inquiry in evaluating a motion under section 404 is whether the defendant has a “covered offense.”  See FSA, § 404(a).  The FSA defines such an 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.” Id.

The government’s view of the meaning of “covered offense” is less than clear.  At the district court, the government appeared to contend that Jackson’s offense wasn’t covered because the presentence investigation report (“PSR”) found him responsible for 402.2 grams of crack, meaning that he exceeded even the new 280-gram requirement.  But the government’s briefing on appeal seems to concede that Jackson’s offense is covered.

In other cases, the government has contended that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.”  United States v. White, 2019 WL 3228335, at *2 (S.D. Tex. July 17, 2019) (quotation marks removed).  On that theory, if the jury convicts on a count requiring a showing of fifty or more grams, but the PSR later finds that, say, 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.  See id.

That approach doesn’t comport with the ordinary meaning of the statute, however.  As stated above, a “covered offense” is “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.” FSA, § 404(a) (emphasis added). The “penalties clause” is the portion in italics. For the government’s approach from previous cases to work, the penalties clause must modify “violation,” not “Federal criminal statute.” But for at least three reasons, the better reading is that it modifies “Federal criminal statute.”  It follows that whether an offense is “covered” depends only on the statute under which the defendant was convicted....

We thus conclude that whether a defendant has a “covered offense” under section 404(a) depends only on the statute under which he was convicted.  If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”  The only other circuits to have confronted these arguments agree.

Via Law http://www.rssmix.com/