Amicus Curiae Brief — Tarahrick Terry, Petitioner v. United States
Supreme Court briefFeb 19, 2021
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No. 20-5904
IN THE
Supreme Court of the United States
_________________________________________________
TARAHRICK TERRY,
Petitioner,
v.
UNITED STATES,
Respondent.
____________________________________________________________________________________________________
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
____________________________________________________________________________________________________
BRIEF FOR AMICUS CURIAE
AMERICANS FOR PROSPERITY FOUNDATION
IN SUPPORT OF PETITIONER
————
Michael Pepson
Counsel of Record
AMERICANS FOR PROSPERITY FOUNDATION
1310 N. Courthouse Road, Ste. 700
Arlington, VA 22201
(571) 329-4529
mpepson@afphq.org
Counsel for Amicus Curiae
February 19, 2021
i
TABLE OF CONTENTS
Table of Authorities……………………………………...ii
Brief of Amicus Curiae in Support of Petitioner ...…...1
Interest of Amicus Curiae..…….…………………….….1
Summary of Argument….………………………….…...4
Argument………………….………………………….…...6
I.
Section 404 Provides a Chance at a Second
Chance—Not a Get-Out-of-Jail-Free Card.…...6
A. Section 404 Relief is Discretionary………..…...6
B. Section 404 Authorizes District Courts to Apply
the Section 3553(a) Factors Afresh, Taking Into
Account Post-Sentencing Conduct and Efforts
at Rehabilitation………………………………..10
C. The Government’s Reading of Section 404 is
Difficult to Square with the Section 3553(a)
Factors…………………………..………………..14
II.
Section 404 Covers 21 U.S.C. § 841(b)(1)(C)
Crack Offenders……………...……………..…..19
A. The Government’s Interpretation of Section
404 is so Arbitrary as to Raise Equal Protection
Questions……………………………...……..…..20
B. The Rule of Lenity and Constitutional
Avoidance Canon Resolve Any Lingering
Doubts in Favor of Petitioner……....……..…..25
Conclusion..……………….………………………….….28
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Bifulco v. United States,
447 U.S. 381, 387 (1980) ....................................... 26
Bond v. United States,
572 U.S. 844 (2014) ............................................... 19
Cannon v. Univ. of Chi.,
441 U.S. 677 (1979) ............................................... 22
Chapman v. United States,
500 U.S. 453 (1991) ......................................... 21, 22
Clark v. Suarez Martinez,
543 U.S. 371 (2005) ............................................... 27
Dillon v. United States,
560 U.S. 817 (2010) ................................................. 9
Dorsey v. United States,
567 U.S. 260 (2012) ..................................... 9, 23, 24
Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades
Council, 485 U.S. 568 (1988) ................................ 28
FCC v. Beach Commc’ns,
508 U.S. 307 (1993) ............................................... 21
Gideon v. Wainwright,
372 U.S. 335 (1963) ................................................. 3
iii
Glover v. United States,
531 U.S. 198 (2001) ................................................. 7
Kelley v. United States,
140 S. Ct. 1565 (2020) ........................................... 19
Ladner v. United States,
358 U.S. 169 (1958) ............................................... 27
McNally v. United States,
483 U.S. 350 (1987) .............................................. 27
Opati v. Republic of Sudan,
140 S. Ct. 1601 (2020) ............................................. 8
Pepper v. United States,
562 U.S. 476 (2011) ............................................... 11
Pinkerton v. United States,
328 U.S. 640 (1946) ............................................... 20
Rosales-Mireles v. United States,
138 S. Ct. 1897 (2018) ............................................. 7
Taylor v. United States,
495 U.S. 575 (1990) ............................................... 26
United States v. Beamus,
943 F.3d 789 (6th Cir. 2019) ................................ 12
United States v. Bendolph,
409 F.3d 155 (3d Cir. 2005) (en banc) ................... 7
iv
United States v. Benson,
No. 08-135, 2020 U.S. Dist. LEXIS
241722 (E.D. Tenn. Dec. 23, 2020) ...................... 13
United States v. Boulding,
960 F.3d 774 (6th Cir. 2020) ............................ 8, 12
United States v. Brooker,
976 F.3d 228 (2d Cir. 2020) .................................. 10
United States v. Davis,
139 S. Ct. 2319 (2019) ........................................... 26
United States v. Davis,
423 F. Supp. 3d 13 (W.D.N.Y. 2019) .................... 14
United States v. Day,
No. 1:05-cr-460-AJT-1, 2020 U.S.
Dist. LEXIS 133586 (E.D. Va. July
23, 2020) ................................................................. 26
United States v. Easter,
975 F.3d 318 (3d Cir. 2020) .................................. 12
United States v. Fields,
No. 08-11, 2020 U.S. Dist. LEXIS
102769 (N.D. Ind. June 11, 2020) ........................ 13
United States v. Granderson,
511 U.S. 39 (1994) ................................................. 26
United States v. Gravatt,
953 F.3d 258 (4th Cir. 2020) ................................ 10
v
United States v. Hardnett,
417 F. Supp. 3d 725 (E.D. Va. 2019) ..................... 8
United States v. Hogsett,
982 F.3d 463 (7th Cir. 2020) ................................ 19
United States v. Holman,
No. 5:04-964, 2020 U.S. Dist. LEXIS
167604 (D.S.C. Sep. 10, 2020) .............................. 26
United States v. Hudson,
967 F.3d 605 (7th Cir. 2020) .......................... 11, 13
United States v. Martin,
No. 03-CR-795 (ERK), 2019 U.S.
Dist. LEXIS 103559 (E.D.N.Y. June
20, 2019) ................................................................. 26
United States v. McDonald,
No. 09-268, 2020 U.S. Dist. LEXIS
133592 (W.D. Pa. July 28, 2020).......................... 26
United States v. Medina,
No. 05-58, 2019 U.S. Dist. LEXIS
137521 (D. Conn. July 17, 2019) .................... 12, 13
United States v. Mehmeti,
No. 09-CR-00165 (ILG), 2020 U.S.
Dist. LEXIS 92505 (E.D. N.Y. 2020) ..................... 8
United States v. Mitchell,
No. 19-1984, 2020 U.S. App. LEXIS
32726 (6th Cir. Oct. 16, 2020) .............................. 11
vi
United States v. Moore,
975 F.3d 84 (2d Cir. 2020) ...................................... 8
United States v. Morales,
No. 3:94-cr-112 (SRU), 2020 U.S.
Dist. LEXIS 151584 (D. Conn. Aug.
20, 2020) ........................................................... 11, 17
United States v. Rose,
379 F. Supp. 3d 223 (S.D.N.Y. 2019) ................... 11
United States v. Ruffin,
No. 17 CR 136 (VM), 2020 U.S. Dist.
LEXIS 63231 (S.D.N.Y. Apr. 9, 2020) ................... 8
United States v. Rumely,
345 U.S. 41 (1953) ........................................... 27, 28
United States v. Santos,
553 U.S. 507 (2008) ............................................... 27
United States v. Shabani,
513 U.S. 10 (1994)....................................................... 27
United States v. Smith,
954 F.3d 446 (1st Cir. 2020) ........................... 19, 23
United States v. Spells,
No. 19-3205-cr, 2020 U.S. App.
LEXIS 35201 (2d Cir. Nov. 6, 2020) ...................... 8
United States v. Vigneau,
473 F. Supp. 3d 31 (D.R.I. 2020) ...................... 9, 16
vii
United States v. Wiltberger,
18 U.S. 76, 5 Wheat. 76 (1820)............................. 26
United States v. White,
984 F.3d 76 (D.C. Cir. 2020) ..................... 11, 12, 19
United States v. Woodson,
962 F.3d 812 (4th Cir. 2020) .......................... 19, 22
United States v. Young,
No. 02-078, 2020 U.S. Dist. LEXIS
217894 (E.D. Tenn. Nov. 20, 2020) ...................... 14
Yates v. United States,
574 U.S. 528 (2015) ................................... 19, 25, 26
Statutes
18 U.S.C. § 3553(a) ............................................ passim
18 U.S.C. § 3553(a)(1) ..................................... 10, 11, 14
18 U.S.C. § 3553(a)(2)(A)............................................ 17
18 U.S.C. § 3553(a)(2)(B)............................................ 16
18 U.S.C. § 3553(a)(2)(C)............................................ 17
18 U.S.C. § 3582(c)........................................................ 9
18 U.S.C. § 3582(c)(1)(A) ............................................ 10
21 U.S.C. § 841(b)(1)(A)(iii)........................................ 23
21 U.S.C. § 841(b)(1)(C)................. 5, 23, 24, 25, 26, 28
viii
21 U.S.C. § 844 ............................................................ 24
Fair Sentencing Act § 2(a), Pub. L. No.
111-220, 124 Stat. 2372, 2372 (2010) ............ 22, 23
First Step Act, § 404, Pub. L. No. 115391, 132 Stat. 5194, 5222 (2018).................. passim
Rules
Sup. Ct. Rule 37.3 ......................................................... 1
Other Authorities
Antonin Scalia & Bryan Garner,
Reading Law (2012) .............................................. 25
Charles Koch with Brian Hooks,
Believe in People: Bottom-Up Solutions
for a Top-Down World (2020) ..................... 2, 15, 19
Ivan J. Dominguez, et al.,
NACDL and Charles Koch Foundation
Mark the One-Year Anniversary of the
First Step Act with the NACDL First
Step Act Resource Center,
44 Champion 10 (2020) ........................................... 2
Marc Mauer,
Long Term Sentences: Time to
Reconsider the Scale of Punishment,
87 UMKC L. Rev. 114 (2018) ................... 15, 16, 17
ix
Office of the Inspector General, U.S. DOJ,
The Impact of an Aging Inmate
Population on the Federal Bureau of
Prisons (Rev. Feb. 2016) ....................................... 15
Sarah E. Ryan,
Judicial Authority Under the First Step
Act: What Congress Conferred Through
Section 404,
52 Loy. U. Chi. L.J. 67 (2020) .............................. 13
Sarah French Russell,
Second Looks at Sentences Under the
First Step Act,
32 Fed. Sent. R. 76 (2019) ................................ 9, 10
Shon Hopwood,
The Effort to Reform the Federal
Criminal Justice System,
128 Yale L.J. F. 791 (2019)..................................... 1
Shon Hopwood,
Second Looks & Second Chances,
41 Cardozo L. Rev. 83 (2019) ....................... passim
Tarra Simmons,
Transcending the Stigma of a Criminal
Record: A Proposal to Reform State Bar
Character and Fitness Evaluations,
128 Yale L.J. F. 759 (2019)..................................... 2
U.S. DOJ, Federal Prison System FY 2019
Performance Budget ............................................. 18
1
BRIEF OF AMICUS CURIAE
IN SUPPORT OF PETITIONER
Under Supreme Court Rule 37.3(a), Americans for
Prosperity Foundation (“AFPF”) respectfully submits
this amicus curiae brief in support of Petitioner.1
INTEREST OF AMICUS CURIAE
Amicus curiae AFPF is a 501(c)(3) nonprofit
organization committed to educating and training
Americans to be courageous advocates for the ideas,
principles, and policies of a free and open
society. Some of those key ideas are the separation of
powers and constitutionally limited government. As
part of this mission, it appears as amicus curiae before
federal and state courts.
AFPF is part of a transpartisan coalition of
organizations that advocate for a broad array of
consensus-based criminal justice reforms, such as the
First Step Act (“FSA”), Pub. L. No. 115-391,132 Stat.
5194 (2018).
As Professor Shon Hopwood has
explained, “with the efforts of the criminal justice
reform community pushing from all sides of the
political aisle, Congress finally broke the logjam and
passed meaningful reform” via the FSA. Shon
Hopwood, The Effort to Reform the Federal Criminal
Justice System, 128 Yale L.J. F. 791, 817 (2019).
1 All parties have consented to the filing of this brief.
Amicus
states that no counsel for a party authored this brief in whole or
in part and that no person other than amicus or its counsel made
any monetary contributions intended to fund the preparation or
submission of this brief.
2
“Republicans and Democrats worked together to pass
. . . [this] historic bill that eliminated some of the
worst injustices in the federal criminal justice system.
The First Step Act makes it possible for thousands of
people with criminal records to rejoin society and start
to realize their potential.” Charles Koch with Brian
Hooks, Believe in People: Bottom-Up Solutions for a
Top-Down World, 224 (2020). “Because of provisions
in the law, as of the one-year anniversary of its
passage [in December 2019], more than 3,000
incarcerated individuals have been released, and
more than 2,000 had their sentences reduced.” Ivan J.
Dominguez, et al., NACDL and Charles Koch
Foundation Mark the One-Year Anniversary of the
First Step Act with the NACDL First Step Act Resource
Center, 44 Champion 10 (2020).
AFPF supports the FSA and strongly believes in
second chances—everyone has a gift and something to
offer to society, people can change, and incarcerated
persons who do not pose a danger to public safety and
have paid their debt to society deserve to have a
chance to rejoin their families and communities and
become contributing members of society. Examples
abound of individuals who despite being incarcerated
have managed to grow from whatever mistakes they
made, overcome obstacles, and use their unique
experiences and gifts to benefit society. See Believe in
People, 109–116, 205–06, 214–16; Shon Hopwood,
Second Looks & Second Chances, 41 Cardozo L. Rev.
83, 84–88 (2019); Tarra Simmons, Transcending the
Stigma of a Criminal Record: A Proposal to Reform
State Bar Character and Fitness Evaluations, 128
Yale L.J. F. 759 (2019).
3
After all, “[c]haracter is not static, people change,
and the law must recognize this reality.” Hopwood, 41
Cardozo L. Rev. at 119. Many incarcerated persons
have the potential to make significant contributions
to our society. Indeed, landmark Supreme Court
precedent has flowed from pro se cert petitions. See,
e.g., Gideon v. Wainwright, 372 U.S. 335 (1963). The
world should not be deprived of untapped talent just
because the judiciary’s hands are tied from looking at
the merits of an individual plea for leniency many
years after a sentence was first imposed.
Draconian sentencing schemes untethered to the
four traditional rationales for punishment—
retribution, incapacitation, rehabilitation, and
deterrence—lead to cruel, unjust penalties for
individual defendants, harm their families, damage
communities, and undermine the legitimacy of our
criminal justice system, all at taxpayer expense.
Instead, judges should have discretion to treat
incarcerated persons as individuals, not just numbers,
and ensure their sentences are proportionate to their
offenses, particularly with respect to non-violent
malum prohibitum offenses. Backend sentencing
reforms, like the FSA, that allow courts to account for
an incarcerated person’s efforts at rehabilitation
while determining whether a sentence reduction is
warranted are not only sound public policy but a
moral imperative.
To be sure, the FSA is just that—a first step
toward criminal justice reform. AFPF supports
further transpartisan consensus- and evidence-based
efforts to build on the success of the FSA. Congress
can, and should, do more to address the twin problems
4
of
overincarceration
and
overcriminalization,
including by ending the failed War on Drugs, ending
mandatory minimums, and granting judges greater
sentencing discretion. Congress should not purport to
permit federal agencies to engage in the
constitutionally dubious practice of criminalizing
innocuous conduct via regulations. The public policy
decisions Congress enacted in the text of the FSA
should not be narrowed or tinkered with by the other
branches of government.
SUMMARY OF ARGUMENT
The question presented here is whether Section
404 of the FSA grants low-level crack offenders
sentenced before August 3, 2010 the ability to ask a
district court to exercise its discretion to reduce their
sentences in accordance with the 2010 Fair
Sentencing Act, which partially addressed the crackto-powder cocaine sentencing disparity. In other
words, this case is about whether individuals who
have languished in prison for committing low-level
crack offenses deserve a chance at a second chance
more than a decade after they were originally
sentenced. We believe the answer must be “yes.”
It bears noting that nothing in Section 404 requires
district courts to grant sentence reductions in
inappropriate cases, such as where an incarcerated
person would pose a danger to the community. No one
questions that this is a feature, not a bug, of Section
404. There are circumstances where a prisoner
eligible to file a motion for a reduced sentence under
Section 404(b) is not an appropriate candidate for
relief based on individual circumstances and conduct
while incarcerated. But Section 404 does allow
5
federal courts to take a second look at sentences
imposed over a decade ago under an unjust, draconian
penalty scheme that has since been repealed. And
Section 404 grants district courts the discretionary
option of reducing the sentences of deserving
individuals—those whose continued incarceration is
unsupported by a legitimate penological justification.
Yet under the government’s reading, Section 404
narrowly carves out from eligibility to petition for this
relief offenders sentenced under 21 U.S.C.
§ 841(b)(1)(C) for low-level crack offenses, while
granting relief to crack kingpins and crack offenders
sentenced for simple possession. The government
suggests, without textual evidence, that Congress
intended to draw this counterintuitive distinction
because the FSA was solely meant to benefit those
sentenced under mandatory-minimum provisions.
That cannot be, and is not, the law. This is so for
the reasons Petitioner ably explains, see Pet. Br. 14–
34, as the FSA’s plain language, structure, and history
squarely foreclose such a construction. This
revisionist history also ignores that Section 2 of the
Fair Sentencing Act itself targeted crack-to-powder
cocaine sentencing disparities by raising the
threshold quantities needed to trigger the mandatory
minimums, which were left intact. Indeed, it would
be difficult to conceive of a rational basis for surgically
carving out of Section 404 of the FSA a select group of
low-level offenders, while granting relief to those who
were convicted of both more and less serious crimes of
the exact same nature. At the least, this would raise
difficult questions whether such a construction might
implicate the equal protection component of the Due
6
Process Clause of the Fifth Amendment. It would also
flip the rule of lenity on its head.
Therefore, even if the text of Section 404 did not
unambiguously resolve this case, any lingering doubts
should be resolved in favor of Petitioner and those
similarly situated, consistent with principles of lenity,
constitutional avoidance, and common sense.
ARGUMENT
I.
SECTION 404 PROVIDES A CHANCE AT A SECOND
CHANCE—NOT A GET-OUT-OF-JAIL-FREE CARD.
A. Section 404 Relief is Discretionary.
While this Court is not in the business of setting
public policy, it bears mentioning that the decision
below both misconstrues the statute and frustrates
Congress’s efforts to implement consensus- and
evidence-based transpartisan measures to partially
address the overincarceration epidemic plaguing the
federal criminal justice system. The decision below is
contrary to the commonsense policy decisions
Congress has made. And for no good reason.
All that is at issue here is whether federal district
courts’ hands are tied to exercise discretion on a caseby-case basis to reduce sentences for a finite, everdwindling universe of individuals society has all but
7
given up on.2 And only a subset of these individuals
should receive a reduced sentence. But that does not
mean that this subset of incarcerated persons that
Section 404 was intended to benefit—who have been
incarcerated for over a decade—do not deserve to have
a court take a second look at their sentence, taking
into account post-sentencing conduct. Cf. United
States v. Bendolph, 409 F.3d 155, 177 (3d Cir. 2005)
(en banc) (Nygaard, J., concurring in part and
dissenting in part) (“I constantly counsel myself and
my law clerks that somewhere in the mass of . . . pro
se habeas petitions, there is another Clarence Earl
Gideon, or one of the other faceless names for whom
we do issue the Great Writ. Searching for those
meritorious petitions is not only our duty, it is one of
our most important.”). Allowing these individuals to
languish in prison even one more day than they
should is simply wrong. See Glover v. United States,
531 U.S. 198, 203 (2001); see also Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1907 (2018) (“prospect
of additional time behind bars is not some theoretical
or mathematical concept” and “has exceptionally
severe consequences for the incarcerated individual
and for society” (citations omitted)).
It is important to understand that Section 404 of
the FSA does not require federal district courts to
2 The government agrees that “the question presented concerns
only the antecedent issue of eligibility for a sentence reduction.
The First Step Act makes any sentence reduction for a covered
offense discretionary[.]” BIO 28. Underscoring the absence of
floodgates concerns here if this Court reverses the decision
below, the government itself has highlighted “the shrinking set
of defendants to whom the question could be relevant.” BIO 23.
8
reduce sentences. See FSA § 404(b), 132 Stat. at 5222
(“A court . . . may . . . impose a reduced sentence[.]”
(emphasis added));3 see also id. § 404(c) (“Nothing in
this section shall be construed to require a court to
reduce any sentence[.]”).
Section 404 thereby
preserves the district courts’ gatekeeping function,
ensuring that federal judges retain the ability to
protect the public when necessary. Accordingly,
federal district courts regularly deny Section 404(b)
motions on the merits where there is evidence that an
offender continues to pose a danger to society, has a
history of serious violent conduct, has not pursued
rehabilitation, or in other appropriate cases.4 And
even where federal district courts elect to grant some
relief, retain discretion to determine the appropriate
scope of sentence modifications.5 But cf. United States
v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020) (“While
district courts have wide discretion in the [FSA]
context, the resentencing decision must be
procedurally reasonable and supported by a
sufficiently compelling justification.”).
3 Cf. Opati v. Republic of Sudan, 140 S. Ct. 1601, 1609 (2020)
(“[T]he word ‘may’ clearly connotes discretion.” (cleaned up)).
4 See, e.g., United States v. Moore, 975 F.3d 84, 92–93 (2d Cir.
2020) (affirming denial of Section 404(b) motion based on
defendant’s post-conviction disciplinary record); United States v.
Spells, No. 19-3205-cr, 2020 U.S. App. LEXIS 35201 (2d Cir. Nov.
6, 2020) (same); United States v. Ruffin, No. 17 CR 136 (VM),
2020 U.S. Dist. LEXIS 63231, at *8–9 (S.D.N.Y. Apr. 9, 2020);
United States v. Mehmeti, No. 09-CR-00165 (ILG), 2020 U.S.
Dist. LEXIS 92505 (E.D.N.Y. May 26, 2020).
5 See, e.g., United States v. Hardnett, 417 F. Supp. 3d 725, 743–
46 (E.D. Va. 2019).
9
This is consistent with Section 404’s plain text and
structure. Section 404 was not meant to provide a getout-of-jail-free card for inmates who have shown a
pattern of continuing to commit violent acts or other
significant disciplinary infractions while in prison, or
who were also convicted of other serious violent acts,
merely because by happenstance they were also
convicted of a “covered offense.”6
But Section 404 does provide a procedural
mechanism that partially addresses at least two
interrelated problems with the federal sentencing
regime: shameful sentencing disparities that
disproportionately and arbitrarily impact certain
communities, see also Dorsey v. United States, 567
U.S. 260 (2012), as well as the general inability of
federal district courts to do anything to modify unjust
sentences (including but not limited to those driven by
mandatory minimums) to account for changes in the
law and, perhaps more importantly, changes in the
defendant’s character evidencing rehabilitation.
Generally, federal district “court[s] may not modify
a term of imprisonment once it has been imposed[.]”
18 U.S.C. § 3582(c); see also Dillon v. United States,
560 U.S. 817, 824 (2010). As a result, prior to the
FSA’s enactment in 2018, “in federal cases, judges
rarely had the chance to take a second look at the
prison sentences they (or their colleagues) imposed.”
6 The FSA’s
full title underscores the Act’s emphasis on both
rehabilitation and protecting public safely. See United States v.
Vigneau, 473 F. Supp. 3d 31, 2020 U.S. Dist. LEXIS 129768, at
*5 (D.R.I. 2020) (noting full title: “Formerly Incarcerated Reenter
Society Transformed Safely Transitioning Every Person Act”).
10
Sarah French Russell, Second Looks at Sentences
Under the First Step Act, 32 Fed. Sent. R. 76 (2019).
The problem with this “truth-in-sentencing” regime is
that federal district courts generally lack discretion to
modify sentences on the back-end to account for
defendants’ rehabilitation, even though rehabilitation
is one of the four traditional justifications for
punishment and incorporated into the Section 3553(a)
factors. See id.; 18 U.S.C. § 3553(a)(1).
The FSA partially solved this problem in at least
two respects. First, the FSA amended 18 U.S.C.
§ 3582(c)(1)(A) to allow inmates to directly petition
federal district courts for compassionate release after
exhausting administrative remedies. See United
States v. Brooker, 976 F.3d 228, 233 (2d Cir. 2020);
Hopwood, 41 Cardozo L. Rev. at 100–111. Second,
Section 404 grants incarcerated persons sentenced for
“covered offenses” the ability to petition for a reduced
sentence. See FSA § 404(b), 132 Stat. at 5222.
B. Section 404 Authorizes District Courts to
Apply the Section 3553(a) Factors Afresh,
Taking Into Account Post-Sentencing
Conduct and Efforts at Rehabilitation.
So long as an incarcerated person was sentenced
in connection with a “covered offense,” 7 Section 404
The weight of authority suggests that Section 404 relief should
be available in cases involving hybrid convictions. See United
States v. Gravatt, 953 F.3d 258, 264 (4th Cir. 2020) (“If Congress
intended for the Act not to apply if a covered offense was
7
11
provides a procedural vehicle to seek a reduced
sentence based, in part, on post-sentencing
rehabilitative conduct. See, e.g., United States v. Rose,
379 F. Supp. 3d 223, 233 (S.D.N.Y. 2019) (“The text of
the First Step Act, read in conjunction with other
sentencing statutes, requires the Court to consider all
relevant facts, including developments since the
original sentence.”). Cf. United States v. White, 984
F.3d 76, 2020 U.S. App. LEXIS 40546, at *28–31 (D.C.
Cir. 2020) (district court erred by failing to consider
post-incarceration rehabilitation efforts). This makes
sense because, as this Court has explained, “evidence
of postsentencing rehabilitation may be highly
relevant to several of the Section 3553(a) factors that
Congress has expressly instructed district courts to
consider at sentencing. For example, evidence of
postsentencing rehabilitation may plainly be relevant
to ‘the history and characteristics of the defendant.’”
Pepper v. United States, 562 U.S. 476, 491 (2011)
(quoting 18 U.S.C. § 3553(a)(1)).8
combined with an offense that is not covered, it could have
included that language. But it did not.”); United States v.
Hudson, 967 F.3d 605, 611 (7th Cir. 2020); United States v.
Mitchell, No. 19-1984, 2020 U.S. App. LEXIS 32726, at *8-9 (6th
Cir. Oct. 16, 2020) (Stranch, J., concurring) (“[O]ur sister circuits
that have considered it have uniformly found defendants with
hybrid convictions eligible for First Step Act relief.”).
8 To be sure, there are instances where post-sentencing
rehabilitative conduct may not outweigh the severity of the
underlying criminal conduct apart from the “covered offense.”
See, e.g., United States v. Morales, No. 3:94-cr-112 (SRU), 2020
U.S. Dist. LEXIS 151584, at *15 (D. Conn. Aug. 20, 2020)
(denying § 404(b) motion on the merits based on defendant’s
multiple murder convictions).
12
In other words, Section 404 does not operate
mechanistically to automatically reduce sentences but
rather offers a chance at a second chance—a second
look—which is all that Mr. Terry is asking for. See
also United States v. Beamus, 943 F.3d 789, 792 (6th
Cir. 2019) (“The First Step Act ultimately leaves the
choice whether to resentence to the district court’s
sound discretion.”). Section 404 allows courts to apply
the § 3553(a) factors afresh, as well as take into
account what the defendant has done after being
sentenced to rehabilitate him or herself and make
amends. See also White, 2020 U.S. App. LEXIS 40546,
at *27–28 (“Every circuit court that has examined the
issue has held that a district court may, or must,
consider the 18 U.S.C. § 3553(a) sentencing factors[,]
. . . includ[ing] consideration of the defendant’s postsentencing behavior.” (citations omitted)). Indeed,
“the First Step Act contemplates a baseline of process
that must include,” among other things, “renewed
consideration of the 18 U.S.C. § 3553(a)
factors[.]”Boulding, 960 F.3d at 784–85; see also
United States v. Easter, 975 F.3d 318, 323 (3d Cir.
2020) (“The text of both § 3582(c)(1)(B) and § 404(b) of
the First Step Act support the holding that when
deciding a motion for a reduced sentence pursuant to
the First Step Act, a District Court must consider the
§ 3553(a) factors.”).
This is a feature, not a bug. As one federal district
court persuasively explained:
A sentencing court must sentence
the defendant, not the crime . . . . When
resentencing is permitted by statute,
allowing a court to look only at the
covered offense, and not the entirety of
13
the circumstances, undermines the great
responsibility
a
sentencing
court
undertakes—to impose a fair sentence
upon the defendant.
United States v. Medina, No. 05-58, 2019 U.S. Dist.
LEXIS 137521, at *15–16 (D. Conn. July 17, 2019)
(cleaned up). See also United States v. Hudson, 967
F.3d 605, 611 (7th Cir. 2020) (“Sentences for covered
offenses are not imposed in a vacuum, hermetically
sealed off from sentences imposed for non-covered
offenses. Nor could they be.”).9
Thus, Section 404 does not operate as a get-out-ofjail-free card, automatically granting reduced
sentences. But by providing defendants like Mr. Terry
a chance at a second chance, Section 404 authorizes
courts to reduce disproportionate and fundamentally
unjust sentences in appropriate cases. See, e.g.,
United States v. Benson, No. 08-135, 2020 U.S. Dist.
LEXIS 241722, at *14 (E.D. Tenn. Dec. 23, 2020)
(reducing sentence to time served and three years
supervised release “[i]n light of defendant’s postsentencing conduct and his seemingly low risk of
recidivism”); United States v. Fields, No. 08-11, 2020
U.S. Dist. LEXIS 102769, at *11–13 (N.D. Ind. June
9 The Circuits are divided on the extent to which Section 404
grants courts discretion to engage in plenary resentencing. See
Sarah E. Ryan, Judicial Authority Under the First Step Act:
What Congress Conferred Through Section 404, 52 Loy. U. Chi.
L.J. 67, 92–109 (2020); Pet. for a Writ of Certiorari, Bates v.
United States, 20-535 (filed Oct. 20, 2020). This Court should
grant cert in Bates to resolve this related Circuit split.
14
11, 2020) (similar); United States v. Young, No. 02078, 2020 U.S. Dist. LEXIS 217894, at *14 (E.D. Tenn.
Nov. 20, 2020); United States v. Davis, 423 F. Supp.
3d 13, 17 (W.D.N.Y. 2019).
C. The Government’s Reading of Section 404
is Difficult to Square with the Section
3553(a) Factors.
A proper textual construction of Section 404(a) to
extend to Mr. Terry and those similarly situated is not
only consistent with the FSA’s plain language but also
provides a mechanism to better align their sentences
with the Section 3553(a) factors.10 This is at least a
small step toward better tethering certain sentences
to the four traditional justifications for imposing
punishment in the first place: rehabilitation,
deterrence, retribution, and incapacitation.
First, imposition of a new sentence allows a court
to take into account what, if any, steps an
incarcerated person has taken to rehabilitate while in
prison. See also 18 U.S.C. § 3553(a)(1) (“The court . .
. shall consider . . . the history and characteristics of
the defendant[.]”). Someone like Mr. Terry who has
been incarcerated for over a decade may well be a very
different person today. After all, he was arrested
when he was only 19 years old, and his sentence was
dramatically enhanced based on two drug-related
convictions when he was a minor. See Pet. Br. 10–11.
Since then, he has earned his GED as well as
Section 3553(a) requires courts to impose “a sentence
sufficient, but not greater than necessary” based on
consideration of statutorily specified factors. 18 U.S.C. § 3553(a).
10
15
completed substance abuse coursework, and, by all
indications, has strong family support and a job lined
up, as he studied for his commercial truck driving
license. See Dist. Ct. Dkt. No. 47 at 7–9 & Ex. 1.
Incarcerated persons who have made mistakes
(even many or very bad mistakes) in their teenage
years or early twenties often, though not always, are
able to change for the better over time, and when they
are in their thirties or forties have addressed the
issues that led them to make those mistakes. See Marc
Mauer, Long Term Sentences: Time to Reconsider the
Scale of Punishment, 87 UMKC L. Rev. 114 (2018)
(discussing “aging out” of crime). 11 Put simply, they
have long ago learned their lesson, and continued
incarceration would have no rehabilitative benefit.
Indeed, as Professor Hopwood has observed: “Several
studies have concluded that more prison time doesn’t
equal more success; longer terms of imprisonment do
not reduce the likelihood of reoffending. . . . Long
sentences of incarceration can actually increase crime
because incarceration is criminogenic[.]” Hopwood, 41
Cardozo L. Rev. at 93. “By imprisoning so many people
for so long, we’ve made it harder for them to develop
skills and find employment after their release—
controlling, rather than empowering, or at least
rehabilitating, them.” Believe in People, 211.
11 See also Office of the Inspector General, U.S. DOJ, The Impact
of an Aging Inmate Population on the Federal Bureau of Prisons,
i, iii (Rev. Feb. 2016) (finding that “aging inmates are more costly
to incarcerate than their younger counterparts due to increased
medical needs” and that “the rate of recidivism of aging inmates
is significantly lower”).
16
Second, it is hard to see how allowing Mr. Terry
and those similarly situated to continue to languish in
prison based on an outdated sentencing scheme long
ago repealed would in any way have a deterrent effect.
Cf. 18 U.S.C. § 3553(a)(2)(B) (requiring consideration
of “the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct”). As a
federal district court recently observed in the
compassionate-release context, there is “an everincreasing body of research that questions the
effectiveness of imprisoning convicted defendants for
a period greater than reasonably necessary.” United
States v. Vigneau, 473 F. Supp. 3d 31, 2020 U.S. Dist.
LEXIS 129768, at *17 (D.R.I. July 21, 2020) (citing
Mauer, 87 UMKC L. Rev. at 114 (collecting
governmental and non-governmental works on the
minimal effect of long federal prison sentences)). It is
increasingly evident that “lengthy prison terms for
federal offenses have become counterproductive for
promoting public safety”; “punitive sentences add
little to the deterrent effect of the criminal justice
system; and mass incarceration diverts resources
from program and policy initiatives that hold the
potential for greater impact on public safety.” Mauer,
87 UMKC L. Rev. at 121. Indeed, “economists and
scholars are increasingly clear that there is little
convincing evidence that at today’s margins in the US,
increasing the frequency or length of sentences deters
aggregate crime.” Hopwood, 41 Cardozo L. Rev. at 98.
Third, as to incapacitation, true enough, in some
cases, where, for example, a defendant with a “covered
offense” has shown a recent propensity toward
engaging in misconduct and violence while
incarcerated, federal judges have discretion to take
17
into account any further need to incapacitate a truly
dangerous defendant in determining whether to grant
a sentence reduction. See 18 U.S.C. § 3553(a)(2)(C)
(requiring consideration of need “to protect the public
from further crimes of the defendant”). And, as
discussed above, not every Section 404(b) motion
involving a “covered offense” should be granted. “But
to the extent that incarceration is imposed primarily
for incapacitation, judges and policymakers should be
cognizant that each successive year of incarceration is
likely to produce diminishing returns for public
safety.” Mauer, 87 UMKC L. Rev. at 122. And again,
Section 404 provides a mechanism for judges to take
this consideration into account on the back end,
factoring in post-incarceration conduct, on a case-bycase basis and deny Section 404(b) motions in
appropriate cases to protect the public.
Fourth, courts must consider “the need for the
sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide
just punishment for the offense[.]” 12 18 U.S.C.
§ 3553(a)(2)(A). But the retributive purpose of
punishment can also be addressed on a case-by-case
basis. See Morales, 2020 U.S. Dist. LEXIS 151584, at
*15 (denying Section 404(b) motion despite
defendant’s rehabilitative efforts, in light of severity
of underlying criminal conduct). And it is hard to see
While some period of incarceration was warranted in Mr.
Terry’s case, by all appearances the sentence he received was
anything but just, particularly given that the enhancements that
rendered his Guidelines range substantially higher were drug
offenses he committed as a minor. See Pet. Br. 10–11. And he
was caught with less than four grams of crack. Pet. App. 8a n.3.
12
18
how that justification would apply here to bar less
culpable low-level crack offenders from relief that is
available to more culpable crack kingpins.
More broadly, as Professor Hopwood has observed:
It is difficult, if not impossible, to
determine who, after having been
convicted of a serious crime, has the
capacity to become rehabilitated and
redeemed. . . .
There is little reason to continue
warehousing people who have been
adequately punished by serving long
sentences, and who are no longer a
danger to society. The social costs to the
families left behind, the loss of human
capital and productivity, and the need to
give people a second chance at
redemption all favor identifying [these]
people . . . and releasing them.
Hopwood, 41 Cardozo L. Rev. at 119. This resonates
here and captures a core theme of the FSA as a whole.
On top of these societal costs caused by the problem of
overincarceration, it is also a waste of resources.13
13 See U.S. DOJ, Federal Prison System FY 2019 Performance
Budget, at 2 (FY 2016 chart showing that cost per inmate ranges
between over $20,000 per year to well above $60,000 per year,
depending
on
nature
of
facility),
https://www.justice.gov/jmd/page/file/1034421/download.
19
“We all benefit when people are given a second look
at an opportunity for a second chance.” Hopwood, 41
Cardozo L. Rev. at 119–120. “About 95 percent of
those who are incarcerated will be released, and it’s in
everyone’s interest that they be able to succeed, rather
than blocked from contributing.” Believe in People,
211. But fortunately, Mr. Terry’s interpretation of
Section 404 is not merely good public policy that
Congress should enact, it is good public policy that
Congress did enact, as reflected in the statute’s plain
language and structure. That should end the matter.
II.
SECTION 404 COVERS 21 U.S.C. § 841(B)(1)(C)
CRACK OFFENDERS.
The government has mistakenly advocated for a
cramped reading of Section 404 to add atextual
limitations that are foreclosed by its plain text.14 This
Court should reject the government’s reading of
Section 404 as a straightforward matter of statutory
interpretation. See Pet. Br. 14–34. See also United
States v. Woodson, 962 F.3d 812 (4th Cir. 2020);
United States v. Smith, 954 F.3d 446 (1st Cir. 2020);
United States v. Hogsett, 982 F.3d 463 (7th Cir. 2020).
Cf. White, 984 F.3d 76, 2020 U.S. App. LEXIS 40546,
at *18–19. There is no evidence, textual or otherwise,
that Congress cryptically and illogically excluded a
subclass of low-level crack dealers, while granting
relief to both more culpable and less culpable crack
offenders, all of whom were sentenced prior to the
14 Oddly, the government also advocates for sweepingly broad
interpretations of criminal statutes. See, e.g., Kelly v. United
States, 140 S. Ct. 1565 (2020); Yates v. United States, 574 U.S.
528, 536 (2015); Bond v. United States, 572 U.S. 844, 862 (2014).
20
enactment of the Fair Sentencing Act. The point of
Section 404, after all, was to grant district courts
discretion to remedy arbitrary sentencing disparities.
For the reasons set forth in Petitioner’s principal
brief, this should not be a close case, and the
Government’s atextual interpretation of Section 404
should be rejected.
However, even if it were
otherwise, and the Government’s reading of Section
404 was at all plausible, application of the traditional
tie-breaker canons of lenity and constitutional
avoidance resolve any doubts in favor of Petitioner.
A. The Government’s Interpretation of
Section 404 is so Arbitrary as to Raise
Equal Protection Questions.
As a thought experiment, consider the implications
of the government’s interpretation of Section 404(a)
through the lens of equal protection. By way of
analogy, the government’s position that the FSA
treats low-level crack dealers worse than crack
kingpins would be as if the felony-murder doctrine not
only exposed the get-away driver from an armed
robbery gone wrong to the same liability as the robber
who killed someone, but would perversely treat the
get-away driver worse than the shooter. Or consider
the Pinkerton doctrine:15 even if one accepts that
doctrine’s premise, it would seem odd to expose a
person tangentially involved in a conspiracy to worse
criminal consequences than the ringleaders who
committed the majority of the overt acts. That makes
no sense. The extent to which the government’s
15 See generally Pinkerton v. United States, 328 U.S. 640 (1946).
21
preferred construction of Section 404(a) is at odds
with the statutory text, context, and structure, and in
tension with common sense, is underscored when the
implications are explored through this lens.
If Section 404(a) of the FSA is construed to apply
to more serious crack distribution offenses but not the
most minor crack distribution offenses, there is a
serious question whether such a construction might
implicate the Fifth Amendment Due Process Clause’s
equal protection component.16 See generally Chapman
v. United States, 500 U.S. 453, 464–65 (1991). While
the Due Process Clause precludes imposition of
punishment based on entirely arbitrary distinctions,
a federal sentencing statute survives an equal
protection challenge so long as “Congress had a
rational basis for its choice of penalties.” Id. at 465.
That is not a demanding standard. Nor should it be.
“[E]qual protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative choices,”
and “a statutory classification that neither proceeds
along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal
protection challenge if there is any reasonably
conceivable state of facts that could provide a rational
basis for the classification.” FCC v. Beach Commc’ns,
508 U.S. 307, 313 (1993).
Accordingly, this Court has found imposition of
harsher sentences based upon distribution of larger
16 AFPF is not suggesting that the government’s interpretation
of Section 404 would necessarily rise to the level of a
constitutional violation. Rather, AFPF seeks to underscore why
the most natural reading of the statute supports Petitioner.
22
quantities of drugs passes muster under the rational
basis test. See Chapman, 500 U.S. at 465 (“Congress
had a rational basis for its choice of penalties for LSD
distribution. . . . It assigns more severe penalties to the
distribution of larger quantities of drugs.” (emphasis
added)). And this Court has suggested Congress may,
consistent with the equal protection component of the
Due Process Clause, assign the same penalties for
possession of any quantity of drug, eschewing any
individual culpability analysis. See id. at 466–67. But
that is not the distinction drawn here under the
government’s interpretation, which would treat
offenders sentenced under the 1986 Anti-Drug Abuse
Act’s penalty scheme for distributing greater
quantities of crack more favorably than the lowest
level offenders caught with smaller quantities.
In an effort to explain away this anomalous result,
the government suggests the rationale for Section
404’s disparate treatment of lower-level crack
offenders was that the FSA solely concerned
individuals sentenced to mandatory minimums. See
BIO 12–14. But that makes no sense. To begin with,
“Congress did not limit the First Step Act to statutes
imposing mandatory minimums or to offenders
sentenced to mandatory minimums.” Woodson, 962
F.3d at 817.17 If it were otherwise, this would mean
Congress is presumed to legislate against the backdrop of
existing law. See Cannon v. Univ. of Chi., 441 U.S. 677, 698–99
(1979). Sections 2 of the Fair Sentencing Act, which is referenced
in Section 404(a), was not aimed at mandatory minimums per se
but rather partially remedying the 100:1 crack-to-powder cocaine
17
23
that the most culpable crack kingpins sentenced
under 21 U.S.C. § 841(b)(1)(A)(iii) would be eligible for
relief, while low-level dealers sentenced under 21
U.S.C. § 841(b)(1)(C) would not. And as the First
Circuit put it: “[W]e think it most unlikely that
Congress intended to deny sentencing relief to
defendants guilty of distributing small quantities of
crack cocaine while allowing relief for those
defendants guilty of distributing larger amounts
whose original sentences were not driven by the
mandatory minimum.” Smith, 954 F.3d at 451.
Such an anomalous result is even more
counterintuitive given that Section 404 does not
operate mechanistically to automatically reduce
crack-related penalties to post-Fair Sentencing Act
levels even for defendants whose sentences were
driven by mandatory minimum penalties. Instead, it
unshackles the district courts to holistically apply the
Section 3553(a) factors, taking into account postsentencing conduct. After all, Section 404(b) relief is
discretionary: a district court “may . . . impose a
reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 . . . were in effect at the time
the covered offense was committed.” FSA § 404(b).
sentencing disparities. Hence, its title: “Cocaine Sentencing
Disparity Reduction.” See Fair Sentencing Act § 2(a), Pub. L. No.
111-220, 124 Stat. 2372, 2372 (2010). Tellingly, Section 2 did not
alter or eliminate any of the mandatory minimum penalties in
21 U.S.C. § 841(b)(1) but instead only raised the quantities
necessary to trigger those penalties. See Dorsey, 567 U.S. at 269.
24
Buttressing this conclusion, Section 404 also
applies to the least serious crack offense of simple
possession.18 Therefore, to accept the government’s
conclusion that 21 U.S.C. § 841(b)(1)(C) is not a
“covered offense,” one must conclude—without any
textual evidence—that a statute granting relief to
more culpable and less culpable offenders but
somehow singling out a middle category of low-level
dealers reflects a rational choice. It doesn’t.
It is hard to conceive of a more arbitrary
distinction. Why would Congress enact a statute that
swept broadly enough to grant relief to crack
kingpins, on the one hand, and crack users, on the
other, but narrowly excised low-level crack dealers? It
makes no sense for Congress to have silently singled
out a random subset of lower-level crack offenders to
bar from a chance to even petition the courts to take a
second look at their sentences through the lens of the
Section 3553(a) factors. And why would it do so in
such a cryptic fashion, diverging sharply from the
traditional approach to assigning harsher penalties
based on possession of greater quantities of drugs?
Whether this approach would rise to the level of an
equal protection violation under the rational basis
standard is far from clear. There is no need to reach
this question, as the Government’s cramped reading
18 Section 3 of the Fair Sentencing Act did eliminate the 5-year
mandatory minimum for simple possession in violation of 21
U.S.C. § 844(a). See Dorsey, 567 U.S. at 269. But this simply
reflects Congress’s decision to partially remedy the crack-topowder cocaine sentencing disparity, and is not evidence that
Section 404 cuts off relief for those sentenced under 21 U.S.C. §
841(b)(1)(C).
25
of Section 404(a) is contrary to the statute’s plain
language, structure, purpose, and context, and should
be rejected on that basis. But if Congress wanted to
draw this arbitrary distinction, it should be expected
to have clearly said so. It did not.19
B. The Rule of Lenity and Constitutional
Avoidance Canon Resolve Any Lingering
Doubts in Favor of Petitioner.
This case should be resolved in Petitioner’s favor
based on a straightforward reading of the text,
structure, and context of Section 404. But to the
extent there are lingering doubts as to why the
Government’s interpretation of the FSA should be
rejected, both the rule of lenity and the constitutional
avoidance canon weigh in favor of interpreting Section
404 to extend to sentences imposed pursuant to 21
U.S.C. § 841(b)(1)(C).
To the extent Section 404 is sufficiently ambiguous
to be plausibly interpreted to curiously excise 21
U.S.C. § 841(b)(1)(C) from the definition of “covered
offense,” that reading should be rejected under the
19 Section 404(c) of the FSA is
titled “LIMITATIONS,” FSA §
404(c), 132 Stat. 5194 at 5222. See also Yates, 574 U.S. at 552
(Alito, J., concurring in the judgment) (“Titles can be useful
devices to resolve doubt about the meaning of a statute.” (cleaned
up)). It carves out circumstances ineligible for relief under
Section 404(b), yet it makes no mention of 21 U.S.C. §
841(b)(1)(C). See FSA § 404(c), 132 Stat. 5194 at 5222. See also
Antonin Scalia & Bryan Garner, Reading Law 107 (2012) (“The
expression of one thing implies the exclusion of others[.]”). The
district court appears to have recognized that Section 404(c) does
not apply here. See Pet. App. 10a n.6.
26
rule of lenity. “[A]mbiguity concerning the ambit of
criminal statutes should be resolved in favor of
lenity.” Yates, 135 S. Ct. at 1088 (cleaned up). “[T]his
principle of statutory construction applies not only to
interpretations of the substantive ambit of criminal
prohibitions, but also to the penalties they impose.”
Bifulco v. United States, 447 U.S. 381, 387 (1980); see,
e.g., United States v. Granderson, 511 U.S. 39, 56–57
(1994); see Taylor v. United States, 495 U.S. 575, 596
(1990). The rule of lenity thus applies with full force
to Section 404 to the extent there is any doubt or
ambiguity as to whether pre-August 3, 2010 crack
offenders sentenced under 21 U.S.C. § 841(b)(1)(C)
have a “covered offense.” 20
Under the rule of lenity, “ambiguities about the
breadth of a criminal statute should be resolved in the
defendant’s favor. That rule is ‘perhaps not much less
old than’ the task of statutory ‘construction itself.’”
United States v. Davis, 139 S. Ct. 2319, 2333 (2019)
(quoting United States v. Wiltberger, 18 U.S. 76, 5
Wheat. 76, 95 (1820) (Marshall, C. J.)).
20 Numerous federal district courts have also found the rule of
lenity applicable to the FSA. See, e.g., United States v. Day, No.
1:05-cr-460-AJT-1, 2020 U.S. Dist. LEXIS 133586, at *19 n.20
(E.D. Va. July 23, 2020) (lenity principle would apply to the FSA);
United States v. McDonald, No. 09-268, 2020 U.S. Dist. LEXIS
133592, at *9 n.2 (W.D. Pa. July 28, 2020); United States v.
Martin, No. 03-CR-795 (ERK), 2019 U.S. Dist. LEXIS 103559, at
*5 (E.D.N.Y. June 20, 2019) (“Multiple district courts
interpreting . . . [§ 404(a)] of the First Step Act have applied the
rule of lenity.”); United States v. Holman, No. 5:04-964, 2020 U.S.
Dist. LEXIS 167604, at *5-6 (D.S.C. Sep. 10, 2020).
27
“This policy of lenity means that the Court will not
interpret a federal criminal statute so as to increase
the penalty that it places on an individual when such
an interpretation can be based on no more than a
guess as to what Congress intended.” Ladner v.
United States, 358 U.S. 169, 178 (1958). Thus, “when
there are two rational readings of a criminal statute,
one harsher than the other, [courts] are to choose the
harsher only when Congress has spoken in clear and
definite language.” McNally v. United States, 483 U.S.
350, 359–60 (1987). As Justice Scalia explained: “This
venerable rule not only vindicates the fundamental
principle that no citizen should be . . . subjected to
punishment that is not clearly prescribed. It also
places the weight of inertia upon the party that can
best induce Congress to speak more clearly and keeps
courts from making criminal law in Congress’s stead.”
United States v. Santos, 553 U.S. 507, 514 (2008).
Buttressing this conclusion is the doctrine of
constitutional avoidance, which often works in a
synergistic tandem with the rule of lenity to counsel
toward a constitutionally permissible reading of a
criminal statute.21 Under the avoidance canon, “what
Congress has written . . . must be construed with an
21 “The rule of lenity
. . . applies only when, after consulting
traditional canons of statutory construction, . . . [the Court is] left
with an ambiguous statute.” United States v. Shabani, 513 U.S.
10, 17 (1994). Likewise, “[t]he canon of constitutional avoidance
comes into play only when, after the application of ordinary
textual analysis, the statute is found to be susceptible of more
than one construction; and the canon functions as a means of
choosing between them.” Clark v. Suarez Martinez, 543 U.S. 371,
385 (2005).
28
eye to possible constitutional limitations so as to avoid
doubts as to its validity.” United States v. Rumely, 345
U.S. 41, 45 (1953) (cleaned up). “[W]here an otherwise
acceptable construction of a statute would raise
serious constitutional problems, the Court will
construe the statute to avoid such problems unless
such construction is plainly contrary to the intent of
Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988). Applying constitutional avoidance here
would be concordant with lenity.
Application of these venerable background rules
should be unnecessary. As Petitioner ably explains,
see Pet. Br. 14–34, the plain language, context,
structure, purpose, and history of Section 404 shows
that Congress unambiguously mandated that 21
U.S.C. § 841(b)(1)(C) is covered. However, even if it
were otherwise, this Court should nonetheless adopt
an at least equally textually permissible construction,
in line with the U.S. Constitution.
CONCLUSION
For the foregoing reasons, this Court should
reverse the judgment of the court of appeals.
Respectfully submitted,
Michael Pepson
Counsel of Record
AMERICANS FOR PROSPERITY FOUNDATION
1310 N. Courthouse Road, Ste. 700
Arlington, VA 22201
(571) 329-4529
mpepson@afphq.org
Counsel for Amicus Curiae
February 19, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.