In a notice submitted to the US Supreme Court on Monday, acting Solicitor General Elizabeth Prelogar stated that the US Department of Justice (DOJ) has reconsidered its position with regard to whether possession of a small amount of cocaine base with intent to distribute constitutes a “covered offense” under Section 404 of the First Step Act of 2018.
In January the court granted certiorari in Terry v. United States. Federal public defender Michael Caruso argued in his petition that the case should be heard because of the circuit split regarding the interpretation of what constitutes a “covered offense” under the First Step Act.
The First Step Act was signed by former president Donald Trump in December 2018. It was the “culmination of several years of congressional debate about what Congress might do to reduce the size of the federal prison population while also creating mechanisms to maintain public safety.” The Act included several changes to federal sentencing guidelines: mandatory minimum sentences for certain drug offenses were reduced, the “safety valve” scope was expanded, the stacking provisions under 18 USC § 924(c) were eliminated, and the provisions of the 2010 Fair Sentencing Act were made retroactive.
Although many concede that the 2018 law was a necessary step in reducing lengthy federal sentences and improving prison conditions, others argue that the DOJ has interpreted the act “in a way that would keep more crack cocaine offenders behind bars.” In his petition, Caruso argued that, because Section 404 of the act made Section 2 retroactive by granting district courts discretion to impose reduced sentences for those with a “covered offense,” the ensuing circuit split on the issue of whether the lowest-level crack offenders sentenced under the Fair Sentencing Act have a “covered offense” demands a clear, unified answer.
In 2008, Tarahrick Terry pleaded guilty to one count of possession with intent to distribute 3.9 grams of crack cocaine. His sentence was increased to more than 15 years due to the fact that he was convicted twice on drug charges when he was a minor. The US Court of Appeals for the Eleventh Circuit, agreeing with the district court, ruled that Terry’s offense was not covered under the act because the amount of crack was under 5 grams. The circuit court reasoned that this amount was “covered under another section of the law—one that wasn’t explicitly changed by the reforms—that allows for a 30-year maximum sentence in cases of prior convictions.”
In her notice to the Supreme Court filed Monday, Prelogar wrote:
Following the change in Administration, the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that the petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.
In response to the acting solicitor general’s letter, assistant federal public defender Andrew Adler responded that, while the petitioner “appreciates the United States’ new position … that belated reversal should not delay the Court’s resolution of the question presented. For reasons of fairness and efficiency, Petitioner urges the Court to resolve the question presented this Term, as the Court originally intended.”
The Supreme Court is scheduled to hear oral arguments in the case on April 20.