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December 11, 2019

Eighth Circuit panel explains the reach of FIRST STEP Act retroactivity eligibility

A helpful readers made sure I did not miss the helpful opinion from an Eighth Circuit panel today in US v. McDonald, No. 19-1221 (8th Cir. Dec. 11, 2019) (available here) concerning the retroactivity provision of the FIRST STEP Act.  I have not consistently kept up with this part of FIRST STEP jurisprudence, but I am consistently pleased when a circuit opinion seeks to bring simple clarity to a complicated issue.  So, here are a few paragraphs from ole McDonald:   

McDonald’s Count 39 conviction is a “covered offense” under § 404 of the First Step Act because (1) it is a violation of a federal statute; (2) the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act; and (3) it was committed before August 3, 2010.  Consequently, McDonald is eligible for a sentence reduction on Count 39: the district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time of the covered offense was committed.”  First Step Act § 404(b). 

It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base.  But this Guidelines calculation does not change the fact that he was convicted on Count 39 for distributing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii) (1996). The First Step Act applies to offenses, not conduct, see First Step Act § 404(a), and it is McDonald’s statute of conviction that determines his eligibility for relief, see, e.g., United States v. Beamus, No. 19-5533, 2019 WL 6207955, at *3 (6th Cir. Nov. 21, 2019); United States v. Wirsing, No. 19-6381, 2019 WL 6139017, at *9 (4th Cir. Nov. 20, 2019).

The government does not argue that McDonald did not commit a “covered offense.”  Instead, it contends the district court did not abuse its discretion by denying McDonald’s motion because it had already reduced his sentence in 2016.  But the fact that McDonald received a sentence reduction based on a retroactive Guidelines Amendment does not affect his eligibility for a sentence reduction under the First Step Act.  A court considering a motion for a reduced sentence under § 404 of the First Step Act proceeds in two steps.  First, the court must decide whether the defendant is eligible for relief under § 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction.  That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step....

Because McDonald is eligible for a sentence reduction under the First Step Act, we remand for the district court to exercise its discretion whether to grant relief.

December 11, 2019 at 05:16 PM | Permalink

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