For the Defense - Vol. 6, Issue 2 - 35

issue this term in Terry v. United States.18
In March,
following the recent change in administration,
the government reversed its position on whether
(b)(1)(C) offenses were " covered offenses, " and
the Court has appointed amicus curiae to brief and
argue in support of the judgment. The matter is set
to be argued on May 4, 2021. The government's
changed position in Terry may signal a willingness
in DOJ to reconsider its default " not eligible "
positions in dual-object conspiracy cases as well
as in continuing criminal enterprise offenses,
particularly if, as with the § 841(b)(1)(C) cases, the
tide of court decisions continues to come down on
the other side.
Speaking of the Continuing Criminal Enterprise
statute, open questions also remain as to cases
arising under 21 U.S.C. § 848,19
with only one Circuit
and a mix of district courts reaching different
conclusions so far.20
Section 848(b) is most clearly a
" covered offense " under Section 404, because the
statutory range is modified from 20 years to life
(21 U.S.C. § 848(a)) to mandatory life under subsection
(b) based on a finding controlled by another
covered offense, § 841(b)(1)(B).21
The other two
provisions, §§ 848(a) and (e), pose a more complex
issue. The answers will likely turn on whether courts
find that § 848 is an indivisible statute, modified as
a whole through its incorporation of drug penalty
provisions, whether each subdivision is a modified
penalty provision of a substantive offense defined
at § 848(c), or with respect to § 848(e), the murder
in furtherance provision, whether the § 841(b)(1)(A)
requirement is a temporal element satisfied at
the time of commission of the offense or a nowmodified
sentencing enhancement provision.22
The only Circuit to have weighed in thus far, the
Sixth Circuit in United States v. Snow held that a
conviction under § 848(e) is not a covered offense.23
Depending on the structure of the final sentence, a
sentencing package argument may also provide an
avenue to reduce the sentence on a CCE count, even
if the court does not deem it a covered offense.24
Scope of Relief and the Exercise of Discretion
Once it is determined that a defendant was
convicted of a covered offense, a sentencing
court may revisit the sentence, regardless of
whether the now modified statutory range had
any impact on the sentence imposed or whether
the Sentencing Guidelines range has changed.
Whether to grant relief is a matter of discretion
for the district court. In United States v. Easter,
the Third Circuit held that as with any imposition
of sentence, the court must consider the relevant
statutory sentencing factors and any arguments
Although the vast majority of First Step Act
eligible
incarcerated
defendants have been
identified, some work remains to be done.
Defendants currently on supervised release
for crack offenses, who may not be aware of
the retroactive legislation, may be eligible for
a supervision term reduction. So too,
in the
event of a violation of supervised release, some
underlying crack offenses will no longer qualify
as Class A felonies, thus reducing the advisory
range for grade A violations. Even in cases
where the Guidelines range is not affected, a
Vol. 6, Issue 2 l For The Defense 35
Lastly of note, in United States v. Hart, the Third
Circuit held that the limitation in Section 404(c), that
" no court shall entertain a motion if the sentence
was previously imposed or previously reduced
in accordance with ... the Fair Sentencing Act of
2010, " is not jurisdictional and may be waived by
the government.30
The Court found the text " shall
not entertain " inconclusive, and the context and
remedial purpose indicative of a non jurisdictional
statute. Hart may have useful application as the
many varieties of Section 404 issues are decided
around the country and subsequent motions
need to be filed, or in cases where the equities
of a case make the government inclined to waive
the limitation. Hart also applies more broadly in
affirming that the enabling statute, 18 U.S.C.
§ 3582, is likewise not jurisdictional.31
Conclusion
put forth by the parties.25
This includes the ability
to grant variances from the Guidelines range
even when none was granted before, and may
be based on post-sentencing rehabilitation.26
Easter additionally held that Section 404 does not
allow for a plenary resentencing, in other words,
subsequent changes in the law (such as offenses
since held not to be career offender predicates),
do not apply.27
The Court is again set to address the plenary
sentencing issue in United States v. Murphy,
a case in which the district court declined to
reevaluate the drug quantity found at sentencing
or recalculate defendant's Guidelines without a
career offender enhancement, despite one of the
predicates no longer qualifying. The court instead
granted a variance to the non-career offender
Guidelines range. The question before the Court
is whether the district court erred in leaving the
no longer applicable career offender designation
in place.28
By and large, however, courts have held
that Section 404 does not allow for a plenary
resentencing.29
For the Defense - Vol. 6, Issue 2

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