Amicus Curiae Brief — Leoncio Perez, Petitioner v. United States
Supreme Court briefJun 30, 2023
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No. 22-7794
IN THE
Supreme Court of the United States
LEONCIO PEREZ,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
BRIEF OF THE NATIONAL ASSOCIATION
OF FEDERAL DEFENDERS AS AMICUS
CURIAE SUPPORTING PETITIONER
Michael Holley
Co-chair, Amicus
Committee
Joanna Munson Perales
Member, Amicus Committee
NATIONAL ASSOCIATION OF
FEDERAL DEFENDERS
Shelley Fite*
Davina T. Chen
National Sentencing
Resource Counsel
FEDERAL PUBLIC AND
COMMUNITY
DEFENDERS
22 E. Mifflin St., #1000
Madison, WI 53703
(608) 234-0883
Shelley_Fite@fd.org
*Counsel of Record for Amicus Curiae
i
TABLE OF CONTENTS
Page
INTEREST OF THE AMICUS CURIAE ............... 1
INTRODUCTION ................................................... 2
ARGUMENT ........................................................... 4
I. The Eleventh Circuit’s exclusion of preApprendi defendants from the ordinary § 404
analysis is erroneous and illogical ................... 4
II. Outside the Eleventh Circuit, no § 404
distinction has been drawn between those
convicted before or after Apprendi, and
individuals in Mr. Perez’s situation were able to
obtain relief—and mostly did obtain relief—
long ago. .......................................................... 11
CONCLUSION ...................................................... 22
ii
TABLE OF AUTHORITIES
Page(s)
Supreme Court and Court of
Appeals Cases
Apprendi v. New Jersey,
530 U.S. 466 (2000)...................... 2–11, 13, 15–17
Concepcion v. United States,
142 S. Ct. 2389 (2022)............................2, 4, 7–10
Dorsey v. United States,
567 U.S. 260 (2012)....................................... 4, 12
Edwards v. United States,
523 U.S. 511 (1998)........................................... 12
Jackson v. United States,
143 S. Ct. 72 (2022) ........................................... 5
Petition, Perez v. United States, 22-7794
(U.S. June 12, 2023) ......................................... 10
Terry v. United States,
141 S. Ct. 1858 (2021).....................2, 4–8, 12, 15
Br. of Amicus Curiae by Invitation of the
Court, Terry v. United States, 2021 WL
2313640 (U.S. Apr. 13, 2021) ............................. 7
United States v. Boulding,
960 F.3d 774 (6th Cir. 2020) .......................13, 14
iii
United States v. Broadway,
1 F.4th 1206 (10th Cir. 2021) ........................... 15
United States v. Clowers,
62 F.4th 1377 (11th Cir. 2023) ......................... 10
United States v. Coleman,
66 F.4th 108 (3d Cir. 2023) .............................. 16
United States v. Davis, 961 F.3d 181 (2d
Cir. 2020) .......................................................... 14
United States v. Harper, 2023 WL
3166351 (11th Cir. May 1, 2023) ....................... 3
United States v. Ingram, 2023 WL
3493112 (11th Cir. May 17, 2023) .................... 3
United States v. Jackson,
58 F.4th 1331 (11th Cir. 2023) ..................2, 5, 16
United States v. Jackson,
945 F.3d 315 (5th Cir. 2019) ............................ 14
United States v. Jackson,
964 F.3d 197 (3d Cir. 2020) .............................. 14
United States v. Jackson,
995 F.3d 1308 (11th Cir. 2021)........................... 6
United States v. Jones,
962 F.3d 1290 (11th Cir. 2020)................5–10, 16
United States v. McDonald,
944 F.3d 769 (8th Cir. 2019) ............................ 15
iv
United States v. Perez, 2023 WL 2534713
(11th Cir. Mar. 16, 2023) .................................... 2
United States v. Robinson,
9 F.4th 954 (8th Cir. 2021) ............................... 16
United States v. Shaw,
957 F.3d 734 (7th Cir. 2020) .......................14–17
Gov. Stat’t of Position, United States v.
Tidwell, et al., 19-2235, dkt. 27 (7th
Cir. May 12, 2020) ............................................ 17
United States v. Watts,
519 U.S. 148 (1997)........................................... 12
United States v. White,
807 F. App’x 375 (5th Cir. 2020) ...................... 16
United States v. White,
984 F.3d 76 (D.C. Cir. 2020) ........................15, 16
United States v. Wirsing,
943 F.3d 175 (4th Cir. 2019) ............................ 14
Order, United States v. Young,
19-2520 (7th Cir. Apr. 28, 2020)....................... 16
v
Statutes and Sentencing Guidelines
1 U.S.C. § 109 ........................................................... 8
18 U.S.C. § 3006A .................................................... 1
21 U.S.C. § 841 .............................. 4–8, 10–14, 16–21
Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (2010).............. 1–5, 7–15
First Step Act of 2018, § 404, Pub. L. No.
115-391, 132 Stat. 5194
(2018)…............. .................................1–11, 13–17
USSG §2D1.1.......................................................... 12
District Court Cases
Opinion and Order, Kemper v. United
States, 92-cr-13, dkt. 132 (W.D. Tex.
July 24, 2019) .................................................. 17
Order, United States v. Angulo-Lopez,
91-cr-220, dkt. 1359 (W.D. Okla. Dec.
24, 2019) ............................................................ 18
United States v. Baxter, 2019 WL 5681189
(S.D.W.V. Oct. 31, 2019) ................................... 20
United States v. Bowman,
2020 WL 470284 (S.D.N.Y. Jan. 29, 2020) ....... 18
vi
Decision and Order, United States v.
Brough, 98-cr-222, dkt. 176 (E.D. Wis.
Dec. 11, 2019) .................................................... 20
Order, United States v. Brown, 95-cr-144,
dkt. 119 (E.D.N.C. Oct. 31, 2019) ..................... 20
Order, United States v. Bullock, 95-cr-296,
dkt. 946 (E.D. Penn. Nov. 29, 2021) ................. 21
Order, United States v. Coakley, 96-cr-26,
dkt. 178 (E.D.N.C. Aug. 29, 2019) .................... 17
Order, United States v. Cook, 95-cr-89,
dkt. 405 (E.D. Tenn. Jan. 31, 2020) ................. 18
Order, United States v. Daniels, 93-cr-130,
dkt. 159 (E.D.N.C. June 26, 2020) .................. 18
United States v. Fairly, 2022 WL 3999885
(E.D. Cal. Sept. 1, 2022) ................................... 19
Order, United States v. Fells, 4-cr-46, dkt.
724 (E.D.N.C. Dec. 17, 2020) ............................ 20
Order, United States v. Felton, 93-cr-123,
dkt. 286 (E.D.N.C. Nov. 19, 2019) ................... 18
Order, United States v. Henderson, 97-cr74, dkt. 707 (W.D. Wis. Jan. 11, 2021)............. 20
Order, United States v. Herrera, 92-cr-209,
dkt. 209 (W.D. Okla. Jan. 10, 2020) ................. 18
vii
Memorandum, United States v. Hill, 96-cr399, dkt. 635 (D. Md. Apr. 30, 2020) ................ 18
Order, United States v. Hodge,
96-cr-54, dkt. 194 (E.D.N.C. Sept. 12,
2019) .................................................................. 17
Order, United States v. Hunter,
97-cr-20027, dkt. 106 (C.D. Ill. July 20,
2022) .................................................................. 21
United States v. Jackson, 2020 WL
3639904 (S.D. Ill. July 6, 2020) ........................ 20
Order, United States v. Johnson,
94-cr-64, dkt. 808 (W.D. Okla. Mar. 29,
2021) .................................................................. 20
Order, United States v. Jones,
96-cr-111, dkt. 384 (W.D. Tex. Sept. 26,
2019) .................................................................. 18
Memorandum, United States v. Jones, 96cr-399, dkt. 623 (D. Md. Feb. 24, 2020)............ 18
Opinion, United States v. Knight, 98-cr-3,
dkt. 288 (W.D. Penn. Jan. 27, 2021) ................ 19
United States v. Miller, 2019 WL 7811312
(E.D. Mo. Dec. 17, 2019) ................................... 20
Order, United States v. Morton, 96-cr-51,
dkt. 245 (E.D.N.C. Aug. 1, 2019) ...................... 19
viii
Order, United States v. Novene, 91-cr-115,
dt. 168 (E.D. Tenn. Jan. 11, 2021) ................... 19
United States v. Palmer, 2023 WL
2265255 (D.D.C. Feb. 28, 2023)........................ 19
Order, United States v. Pone, 93-cr-40,
dkt. 802 (E.D. Penn. Oct. 22, 2020).................. 19
United States v. Reed, 2020 WL 5790430
(S.D. Ill. Sept. 28, 2020).................................... 20
United States v. Richardson, 2020 WL
1942433 (W.D. La. Apr. 22, 2020) .................... 20
United States v. Robinson, 2021 WL
5958356 (D. Neb. Dec. 16, 2021) ...................... 19
Am. Judg’t, United States v. Robinson, 98cr-60, dkt. 606 (E.D. Wis. Feb. 13,
2020) .................................................................. 18
Order,United States v. Rooks, 95-cr-89,
dkt. 407 (E.D. Tenn. Apr. 29, 2020) ................. 18
Decision and Order, United States v.
Sallis, 98-cr-60, dkt. 603 (E.D. Wis.
Sept. 17, 2019) .............................................19–20
Order, United States v. Slaughter, 97-cr13, dkt. 110 (E.D.N.C. June 6, 2019) ............... 19
Order, United States v. Smith, 88-cr-519,
dkt. 178 (E.D. Penn. Nov. 18, 2020) ................. 19
ix
Order, United States v. Williams, 97-cr142, dkt. 688 (E.D.N.C. Aug. 28, 2020) ............ 19
Order, United States v. Williams, 98-cr30080, dkt. 81 (C.D. Ill. July 31, 2020) ............ 20
United States v. Wyche, 2023 WL 130825
(D.D.C. Jan. 9, 2023) ........................................ 19
INTEREST OF AMICUS CURIAE1
The National Association of Federal Defenders
(NAFD), formed in 1995, is a nationwide, volunteer
organization made up of attorneys who work for
federal public defender offices and community defender organizations authorized under the Criminal
Justice Act, 18 U.S.C. § 3006A.
NAFD members have particular expertise and
interest in the subject matter of this litigation. After
the First Step Act of 2018 became law, Federal
Public and Community Defenders handled the
overwhelming majority of motions under § 404 of
that Act, which provided relief to thousands of
individuals sentenced for crack-cocaine offenses
under mandatory-minimum sentences that had
been lowered (previously, only prospectively) by the
Fair Sentencing Act of 2010.
Our membership keenly understands that the
Eleventh Circuit’s rule at issue here is untenable: it
requires a discrete subset of individuals to serve out
mandatory life sentences, although individuals
within that subset would be permitted to obtain
relief in any other circuit. And we immediately
perceive the injustice: the characteristics that
distinguish this subset are that the individuals
within it have been in prison the longest, and had
sentencing
proceedings
with
the
fewest
constitutional protections.
1 No counsel for any party has authored this brief in whole
or in part, and no entity or person other than amicus and its
counsel has made any monetary contribution intended to fund
the preparation or submission of this brief. Respondent and
Petitioner received timely notice of the filing of this brief.
2
INTRODUCTION
This case is about § 404 of the First Step Act of
2018, which made the Fair Sentencing Act of 2010
retroactive—creating a remedy for individuals
sentenced under the repudiated 100-to-one ratio for
penalizing crack- versus powder-cocaine offenses.
This Court has addressed § 404 twice before, in
Terry v. United States, 141 S. Ct. 1858 (2021), and
Concepcion v. United States, 142 S. Ct. 2389 (2022).
Before this Court decided either Terry or
Concepcion, the Eleventh Circuit adopted a rule that
applies differently depending on whether the § 404
movant was originally sentenced before or after this
Court decided Apprendi v. New Jersey, 530 U.S. 466
(2000). That rule, which categorically disqualifies
certain pre-Apprendi defendants from relief,
contradicts both Terry and Concepcion. Indeed, the
rule is not just wrong under this Court’s precedents,
it is illogical. Yet on remand from this Court after
Concepcion, the Eleventh Circuit determined that it
would not change course. United States v. Perez,
2023 WL 2534713 (11th Cir. Mar. 16, 2023) (relying
upon United States v. Jackson, 58 F.4th 1331 (11th
Cir. 2023)).
The Eleventh Circuit’s rule, as applied to preApprendi defendants, is offensive to any concept of
fairness. This brief attempts to break down the rule
to help this Court understand how it operates, how
it is wrong, and how it condemns a discrete group of
individuals who were sentenced under the old 100to-one ratio to life imprisonment. Then the brief
explains that these same individuals could get relief
3
in any other circuit, with citation to dozens of cases
in which federal courts outside of the Eleventh
Circuit have afforded relief to individuals who are
situated similarly to the petitioner in this case.
This amicus brief is filed for Leoncio Perez, but
we ask the Court to also consider it when taking up
the certiorari petitions of five other individuals:
Warren Lavell Jackson, No. 22-7728 (U.S.)
Pinkney Clowers, III, No. 22-7783 (U.S.)
Jamie Williams (submitted, no number yet)2
Michael G. Harper (to be filed)3
Bobby Lee Ingram, No. (to be filed)4
The number of individuals who would be
impacted by this Court’s action in these cases is
relatively small but the impact on them is profound.5
The Eleventh Circuit’s notion that a person is
categorically excluded from § 404’s retroactive relief
mechanism based on the fact that they are serving
the longest sentences, and had the least fair
sentencing proceedings, cannot be maintained.
2 See United States v. Williams, 2023 WL 2155039 (11th
Cir. Feb. 22, 2023).
3 See United States v. Harper, 2023 WL 3166351 (11th Cir.
May 1, 2023).
4 See United States v. Ingram, 2023 WL 3493112 (11th Cir.
May 17, 2023).
5 In addition to the cases with certiorari petitions listed
above, NAFD is aware of several related cases that are pending
in the Eleventh Circuit and many more cases where the
defendant could get relief in the district court when and if this
Court reverses in the cases with pending petitions.
4
ARGUMENT
I.
The Eleventh Circuit’s exclusion of preApprendi defendants from the ordinary
§ 404 analysis is erroneous and illogical.
Section 404 of the First Step Act presents a twostep process. First, the court determines eligibility:
whether the individual is serving a sentence for a
“covered offense”—that 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.” Then, for an individual who
meets this eligibility test, the court has discretion to
“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.”
This Court addressed step one in Terry and step
two in Concepcion. Under Terry, eligibility is a
straightforward, bright-line test that is based on the
statute of conviction: if an individual was sentenced
under one of the pre-Fair Sentencing Act sentencing
ranges applicable to crack offenses—21 U.S.C.
§ 841(b)(1)(A)(iii) and (b)(1)(B)(iii)—then he is
eligible for relief; if not, then he is not. 141 S. Ct. at
1863.6 In Concepcion, the Court held that for
individuals who are eligible for relief, the district
court enjoys broad discretion in determining
6 Pre-Fair Sentencing Act, the quantity thresholds were
50 grams for § 841(b)(1)(A)(iii) and 5 grams for
§ 841(b)(1)(B)(iii). Now the thresholds are, respectively, 280
grams and 28 grams. Dorsey v. United States, 567 U.S. 260,
269 (2012)
5
whether to grant relief and by how much. 142 S. Ct.
at 2401–04.
The Eleventh Circuit’s § 404 analysis, which was
developed in United States v. Jones, 962 F.3d 1290
(11th Cir. 2020), cert. granted, judgment vacated sub
nom. Lavell Jackson v. United States, 143 S. Ct. 72
(2022), and opinion reinstated on reconsideration
sub nom. United States v. Jackson, 58 F.4th 1331
(11th Cir. 2023), might at first glance appear to be
consistent with these opinions. But on closer
inspection, as applied to pre-Apprendi defendants, it
contradicts both.7
The Eleventh Circuit in Jones described “covered
offense” much as this Court would in Terry, holding
that it is based solely on statutory elements; “[a]nd
the specific elements . . . that matter for eligibility
under the First Step Act are the two drug-quantity
elements
in
sections
841(b)(1)(A)(iii)
and
(b)(1)(B)(iii)”—that is, 50 grams and 5 grams. Jones,
962 F.3d at 1301.
Then the Eleventh Circuit explained that before
exercising discretion at § 404’s second step, the court
would have to calculate the post-Fair Sentencing Act
statutory penalty range. And the problem arose here
because the Eleventh Circuit held that for preApprendi
defendants—and
pre-Apprendi
defendants only—the statutory range is not based on
7 The effect of Apprendi on § 841 offenses was to require
that a quantity allegation that increases the mandatory
sentencing range (for crack cocaine, 5 or 50 grams before the
Fair Sentencing Act; 28 or 280 grams after) be alleged in the
indictment and proven to a jury or admitted by plea.
6
statutory elements. Instead, it is based on whatever
total drug quantity the district court found at
sentencing. Jones, 962 F.3d at 1303–04. This is true
even though only 50 grams of any factual-finding
would have related to the statutory range; any
finding over 50 grams could only relate to the
guideline range, or perhaps the court’s sentencing
discretion, but not to the statutory range.
Thus for a post-Apprendi defendant in the
Eleventh Circuit, consistent with Terry, elements
control: A person convicted of a crack offense under
the highest sentencing range, § 841(b)(1)(A)(iii),
based on the old 50-gram threshold, is understood to
now come within the § 841(b)(1)(B)(iii) range—no
matter what quantity of cocaine his offense was
found to involve at sentencing. Jones, 962 F.3d at
1304–05.8 But for a pre-Apprendi defendant, there’s
a special rule: factual-findings unrelated to any
statutory element control. Id. at 1304.
The practical result of this distinction between
pre- and post-Apprendi defendants is an
unwarranted—and as applied to individuals serving
mandatory life sentences, a breathtaking—disparity
even within the Eleventh Circuit. See United States
v. Jackson, 995 F.3d 1308, 1316 (11th Cir. 2021)
(Martin, J., dissenting from the denial of rehearing
en banc). A district court has broad discretion to
reduce the sentence of any and all post-Apprendi
defendants sentenced for crack under the old 100-toone ratio. For these defendants, the mandatoryIn exercising discretion under § 404, the court can, of
course, consider the total quantity, along with other factors.
8
7
minimum previously set by § 841(b)(1)(A)(iii) will
always be reduced—from 10 years, 20 years, or life
(depending on whether the government filed a notice
related to prior convictions) to either 5 or 10 years.
And all § 404 movants will have already served a
sentence longer than 10 years.
But many pre-Apprendi defendants are stuck at
the pre-Fair Sentencing Act mandatory-minimum—
even if that minimum is life—based on factualfindings made at sentencing for purposes other than
calculation of the statutory range.
As applied to pre-Apprendi defendants, Jones’s
rule is contrary to both Terry and Concepcion:
Terry. In Terry, this Court held that whether a
defendant was sentenced for a covered offense is a
bright-line test that depends on whether the Fair
Sentencing Act changed his crack-based statutory
sentencing range. 141 S. Ct. at 1863.9 And the Court
clarified that because 50 grams—the old
§ 841(b)(1)(A)(iii) threshold—now falls within
§ 841(b)(1)(B)(iii), the Fair Sentencing Act did in fact
change the range for all offenses under
9 This is based solely on the elements of the offense. As the
court-appointed amicus in Terry explained, in an analysis that
the Court adopted, “[s]ection 2 of the Fair Sentencing Act
modified statutory penalties for certain § 841(b)(1) offenses
because the elements of the pre-Act violation, after August 3,
2010, establish a conviction under a different subsection with
different statutory penalties.” Br. of Amicus Curiae by
Invitation of the Court, Terry v. United States, 2021 WL
2313640, *17 (U.S. Apr. 13, 2021); see also id. at *16 (“As any
upper-level law student knows, an offense is defined by its
elements.”).
8
§ 841(b)(1)(A)(iii). Id. (“The statutory penalties thus
changed for all subparagraph (A) and (B)
offenders.”). Thus, under Terry, the Eleventh Circuit
is plainly wrong in holding that a person can be
found to have been sentenced for a “covered offense”
based on the pre-Fair Sentencing Act elements of
§ 841(b)(1)(A)(iii) but then categorically disqualified
from relief based on the notion that he still falls
within § 841(b)(1)(A)(iii).
Concepcion. Because the Eleventh Circuit’s
special rule for pre-Apprendi defendants is
ostensibly about the second step of the § 404 process,
it also implicates Concepcion. In Concepcion, this
Court held that if an individual was convicted of a
“covered offense,” the district court enjoys broad
discretion to reduce his sentence with “only two
limitations” (under § 404(c)) not relevant here. 142
S. Ct. at 2401–02. This leaves no room for the
Eleventh Circuit’s rule disqualifying many preApprendi defendants from relief.
Also, this Court in Concepcion explained that
§ 404’s “as if” clause does not limit the application of
that provision; it simply overcomes the saving
statute at 1 U.S.C. § 109, which would otherwise
prohibit retroactive application. 142 S. Ct. at 2402.
The Eleventh Circuit’s special rule for pre-Apprendi
defendants conflicts with this aspect of Concepcion,
too: that court in Jones explained that it was § 404’s
“as if” clause that required its special rule—that “as
if” required a court to decide a § 404 motion filed by
a pre-Apprendi defendant as if it were deciding that
motion post-Fair Sentencing Act but somehow still
pre-Apprendi. See Jones, 962 F.3d at 1303–04.
9
Indeed, not only does Concepcion’s discussion of
the “as if” clause foreclose this interpretation,
Concepcion clarifies that caselaw arising after
sentencing can be a reason to grant relief. At § 404
step two, a court may consider a post-sentencing
change in law (like Apprendi) in determining
whether to grant relief as a matter of discretion, and
by how much. 142 S. Ct. at 2404. This is the very
opposite of a rule that bars relief based on the fact
that a person was sentenced before a positive change
in law like Apprendi.
The Eleventh Circuit’s rule for pre-Apprendi
defendants is not just legally wrong, it is also
illogical. Eligibility for § 404 relief draws a clear
temporal line, but that line separates those
sentenced before the Fair Sentencing Act and those
sentenced after; there’s nothing related to this
Court’s decision in Apprendi. Indeed, anyone
sentenced pre-Apprendi is necessarily on the
“eligible” side of the temporal line that § 404 does
draw, since Apprendi was decided a decade before
Congress passed the Fair Sentencing Act.
The Eleventh Circuit’s explanation for its rule
was that, before Apprendi, unlike now, it was the
judge’s quantity finding at sentencing that decided
the statutory range. Jones, 962 F.3d at 1304. But
although before Apprendi a judge’s quantity finding
decided the statutory range, for crack offenses, that
was only true for five or 50 grams. Before the Fair
Sentencing Act became law, any finding beyond five
or 50 grams was irrelevant to the statutory range; it
10
was relevant only to the guideline range and/or the
judge’s exercise of sentencing discretion.10
The Eleventh Circuit also expressed concern that
treating a judge’s pre-Apprendi fact-finding as nonbinding would require applying Apprendi to the
case, although Apprendi is not retroactively
applicable. Jones, 962 F.3d at 1302. But Apprendi’s
non-retroactivity is irrelevant: whether before or
after Apprendi, until 2010, the statutory threshold
for a crack offense punishable under § 841(b)(1)(A)
was 50 grams. So both before and after Apprendi,
until 2010, a fact-finding of crack beyond 50 grams
was not related to the statutory sentencing range.11
Finally, beyond being wrong and illogical, the
Eleventh Circuit’s special rule for pre-Apprendi
defendants is unjust. Individuals who were
sentenced under § 841(b)(1)(A)(iii) pre-Apprendi
The Eleventh Circuit has recognized this fact but
disregarded it. United States v. Clowers, 62 F.4th 1377, 1383
n.3 (11th Cir. 2023) (“We note that the sentencing court’s drugquantity finding was not needed to determine Jackson's
statutory penalties. . . . But according to the prevailing
understanding of the law at the time, the court’s finding that
Jackson's offense involved 287 grams of crack cocaine ‘could
have been used’ to determine his statutory penalties at
sentencing.”) (quoting Jones, 962 F.3d at 1303). It is unknown
what it means to say that quantity over 50 grams “could have
been used” to determine statutory penalties, although quantity
over 50 grams was irrelevant to statutory penalties.
10
11 Apprendi is relevant to § 404’s step-two analysis in that
a court may consider that decision in determining whether, and
how much, to reduce a sentence. See Petition at 28–29, Perez v.
United States, 22-7794 (U.S. June 12, 2023) (discussing
Concepcion, 142 S. Ct. at 2402, and related circuit cases).
11
have been in prison the longest, and they were
sentenced under the least constitutional procedures.
In other circuits, these longest-serving individuals
got many of the most consequential reductions (lifein-prison to time served). There is no justification for
excluding them altogether from the relief
mechanism that Congress created.
II. Outside the Eleventh Circuit, no § 404
distinction has been drawn between those
convicted before or after Apprendi, and
individuals in Mr. Perez’s situation were
able to obtain relief—and mostly did obtain
relief—long ago.
The Eleventh Circuit’s erroneous, irrational
special rule for § 404 motions filed by pre-Apprendi
defendants is anomalous. If he had been convicted in
any other circuit, Mr. Perez could obtain relief.
When the First Step Act became law, out of the
gate, the most essential legal question was who was
eligible for relief—in § 404 parlance, who was
sentenced for a “covered offense.” This question
arose in various contexts, but perhaps the most
impactful context was what federal defenders
colloquially called the “quantity issue.” The
Eleventh Circuit adopted its special rule for preApprendi § 404 movants in a case that centered on
the quantity issue, so this brief backs up a bit to
provide this Court with some context before sharing
citations from other circuits that illustrate how
anomalous the Eleventh Circuit’s rule is.
12
As this Court is well aware, drug quantity plays
a critical role in federal drug-trafficking cases—in
two ways. First, for certain drug types, specified
quantities trigger elevated statutory penalty ranges.
See § 841(b)(1)(A) & (b)(1)(B). Second, regardless of
the statutory range, drug quantity usually drives
the guideline range. See USSG §2D1.1(a)(5) & (c).
Presentence reports (PSRs) filed in drug-trafficking
cases endeavor to approximate the total drug
quantities involved, using any evidence available.
See Edwards v. United States, 523 U.S. 511, 513–14
(1998) (the court at sentencing calculates the
guideline range based on its own assessment of the
type and quantity of drugs involved, regardless of
jury findings); cf. United States v. Watts, 519 U.S.
148, 157 (1997) (in calculating the guideline range,
a court may consider even conduct of which the
defendant has been acquitted).
The Fair Sentencing Act amended statutory
ranges, not guideline ranges.12 Previously, the
highest range, § 841(b)(1)(A), applied to offenses
involving at least 50 grams of crack. Under the Fair
Sentencing Act, § 841(b)(1)(A) applies only to
offenses involving at least 280 grams of crack.
Dorsey, 567 U.S. at 269.
The quantity issue asked whether § 404
eligibility turned on the statutory quantity (for
§ 841(b)(1)(A) offenses, 50 grams) or on the PSR
In response to the Act, the Sentencing Commission
adjusted guideline ranges. But because the Act’s amendments
to statutory ranges were not retroactive, even when sentences
were reduced under the guideline changes, they could not go
below the statutory floor. See Terry, 141 S. Ct. at 1861.
12
13
quantity (that is, whatever quantity the court found
at sentencing), which can be orders of magnitude
greater. The government argued for the latter: that
a person who was convicted under § 841(b)(1)(A) for
an offense involving at least 50 grams of crack
should be treated as if he had been convicted of a
280-gram offense, if the court at sentencing found
that the drug quantity was at least 280 grams. The
government was not arguing that there was any
temporal distinction, with Apprendi requiring some
§ 404 motions to be evaluated based on the PSR
quantity, while others would be based on the
statutory quantity. The government simply argued
that PSR quantity controlled statutory ranges. See,
e.g., United States v. Boulding, 960 F.3d 774, 778–
79 (6th Cir. 2020) (“The Government asserts that the
case record as a whole should be used to determine
the quantity of drugs involved—including specific
findings made by the original sentencing court, or
those contained within a plea agreement, the trial
record, or presentencing report. And if, tallied
together, that quantity is sufficient to trigger the
statutory penalty under the increased thresholds
imposed by the Fair Sentencing Act, the defendant
would be ineligible for relief under the First Step
Act.”).
Section 404 movants countered that the
government’s position was inconsistent with § 404’s
text, which focuses on whether the penalty for the
statute of conviction was modified by the Fair
Sentencing Act. See, e.g., United States v. Shaw, 957
F.3d 734, 738 (7th Cir. 2020) (describing the
defendants’ “straightforward theory”).
14
Movants decisively won the quantity issue: every
circuit court to consider the issue agreed that
eligibility under § 404 turned only on the statute of
conviction.13 Indeed, the government in late 2020
13 United States v. Davis, 961 F.3d 181, 190 (2d Cir. 2020)
(“[I]t is a defendant’s statutory offense, not his or her ‘actual’
conduct, that determines whether he has been sentenced for a
‘covered offense’ within the meaning of Section 404(a), and is
consequently eligible for relief under Section 404(b).”); United
States v. Jackson, 964 F.3d 197, 206 (3d Cir. 2020) (“Although
Harris and Jackson each possessed more than twenty-eight
grams of crack, Harris pleaded guilty to and Jackson was
convicted of possession of five grams or more under § 841(a)(1),
(b)(1)(B)(iii). We determine if a defendant is § 404 eligible by
looking to his statute of conviction. Here, five grams or more is
less than the current threshold of twenty-eight grams. . . .
Thus, Harris and Jackson can seek discretionary reductions of
their sentences.”); United States v. Wirsing, 943 F.3d 175, 186
(4th Cir. 2019) (“Defendant’s view leads to a simple
interpretation of the statute: he is eligible to seek relief under
the First Step Act because, ‘before August 3, 2010,’ he
‘committed’ a ‘violation’ of 21 U.S.C. § 841(a) and (b)(1)(B)(iii),
and ‘the statutory penalties’ for that statute ‘were modified by’
Section 2 of the Fair Sentencing Act. . . . We agree and adopt
this understanding.”); United States v. Jackson, 945 F.3d 315,
319 (5th Cir. 2019) (explaining that the government’s
approach—if a defendant is convicted “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”—“doesn’t comport
with the ordinary meaning of the statute.”); United States v.
Boulding, 960 F.3d 774, 781 (6th Cir. 2020) (“To the extent it
remains an open question in this circuit, we hold that eligibility
for resentencing under the First Step Act turns on the statute
of conviction alone.”); United States v. Shaw, 957 F.3d 734, 739
(7th Cir. 2020) (“[W]e hold that the statute of conviction alone
determines eligibility for First Step Act relief.”); United States
15
abandoned its earlier position.14 And Terry, as
discussed above, cemented that the circuit courts
were correct: elements, not conduct, controls the
§ 404 eligibility analysis.
Movants mostly won the quantity fight in the
Eleventh Circuit, too—but as discussed, with a
carve-out for individuals sentenced before Apprendi.
The Eleventh Circuit’s determination that preApprendi defendants are subject to a special rule,
which relies on PSR quantity rather than statutory
quantity, is entirely inconsistent with the circuit
v. McDonald, 944 F.3d 769, 772 (8th Cir. 2019) (“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[.]”) (citations omitted); United States v.
Broadway, 1 F.4th 1206, 1213–14 (10th Cir. 2021) (“[T]he
district court should look to the minimum quantity of drugs
associated with an eligible defendant’s offense of conviction,
rather than his underlying conduct, to determine whether the
Fair Sentencing Act would have affected his sentence had it
been in effect at the time of the defendant’s crime. After the
district court does so, it may exercise its discretion to
determine whether to reduce a sentence, which may include
consideration of the § 3553(a) sentencing factors and the
defendant’s underlying conduct.”); United States v. White, 984
F.3d 76, 86 (D.C. Cir. 2020) (“[W]hether an offense is ‘covered’
does not depend on the actual drug amounts attributed to a
defendant, whether by a judge or a jury. Rather, it depends
only on whether the defendant was convicted of an offense with
a statutory penalty range that the Fair Sentencing Act
altered.”).
14 The first circuit court in which the government noted its
change in position was United States v. White, 984 F.3d 76, 85
(D.C. Cir. Dec. 29, 2020) (describing the government’s 28(j)
letter); see also id. at 86 (explaining the government’s
agreement with the defendant’s approach).
16
opinions cited in footnote 13. Most of those cases did
not involve pre-Apprendi defendants—there aren’t
many such defendants still in prison—but two did:
United States v. White, 984 F.3d 76 (D.C. Cir. 2020),
and United States v. Robinson, 9 F.4th 954 (8th Cir.
2021). And other circuits have applied their
elements-only eligibility rule in pre-Apprendi cases
without suggesting Apprendi as a point of
distinction.15 Indeed, as far as NAFD members are
aware, the government has never claimed outside of
the Eleventh Circuit (not even after Jones) that the
fact that a § 404 movant was originally sentenced
pre-Apprendi is a basis for denying relief.16
15 See, e.g., United States v. Coleman, 66 F.4th 108, 111 (3d
Cir. 2023) (explaining that in a pre-Apprendi case it may be
necessary to consult the entire record to determine the statute
of conviction (e.g., § 841(b)(1)(A)(iii) versus (b)(1)(A)(ii)), and
only for that purpose); United States v. Bullock, No. 20-3003,
2021 WL 4145233 (3d Cir. Sept. 13, 2021) (in a pre-Apprendi
case, remanding for consideration of the movant’s request for
reduced supervised release (below the § 841(b)(1)(A) minimum)
where the district court had already reduced the prison
sentence under circuit law holding that “the statute of
conviction, rather than the quantity of crack cocaine involved,
governed eligibility for a reduction of sentence under the First
Step Act”); Order, United States v. Young, 19-2520 (7th Cir.
Apr. 28, 2020) (remanding a pre-Apprendi case under Shaw).
16 See United States v. White, 807 F. App’x 375, 376–77 (5th
Cir. 2020) (pre-Apprendi case, explaining that the
“government’s only attempt to distinguish this case from
Jackson is to note that here, unlike in Jackson, this court
affirmed the district court’s drug quantity calculation on direct
appeal. But ‘whether a defendant has a ‘covered offense’ under
section 404(a) depends only on the statute under which he was
convicted.’”). In a filing in the Seventh Circuit in 2020, the
government conceded that remand was appropriate for § 404
17
Outside the Eleventh Circuit, district courts have
granted relief to dozens of individuals whose
offenses were found at sentencing, pre-Apprendi, to
involve a quantity of crack that exceeds the current
statutory threshold of 280 grams, under analyses
that are incompatible with Jones’s rule for preApprendi cases. Examples of such grants, identified
by NAFD members, are provided in footnotes
accompanying this sentence: first, reductions from
life
sentences17;
then,
from
term-of-years
movants who had been sentenced pre-Apprendi, explaining
that the Seventh Circuit’s quantity-issue opinion, Shaw,
“forecloses the government’s position that defendants in this
consolidated appeal are ineligible for discretionary relief under
§ 404 because their offenses were found to have involved
quantities of crack cocaine that exceeded 280 grams.” Gov.
Stat’t of Position, United States v. Tidwell, et al., 19-2235, dkt.
27 (7th Cir. May 12, 2020) (appeals from the denial of § 404
relief in Northern District of Illinois case no. 93-cr-20024).
17 Opinion and Order, Kemper v. United States, 92-cr-13,
dkt. 132 (W.D. Tex. July 24, 2019) (reducing the mandatory life
sentence to 360 months, with the opening statement: “This
case calls out for justice to be tempered with mercy.”); Order,
United States v. Coakley, 96-cr-26, dkt. 178 (E.D.N.C. Aug. 29,
2019) (reducing the sentence from 360 months—after
commutation from a mandatory life sentence—to 240 months
and reducing the term of supervised release to less than the
§ 841(b)(1)(A) minimum) (for more on the case, see Gov.
Response at dkt. 172); Order, United States v. Hodge, 96-cr-54,
dkt. 194 (E.D.N.C. Sept. 12, 2019) (reducing the sentence from
360 months—after commutation from a mandatory life
sentence—to 316 months and reducing supervised release to
less than the § 841(b)(1)(A) minimum) (for more on the case,
see Gov. Response at dkt. 188); Order, United States v. Jones,
96-cr-111, dkt. 384 (W.D. Tex. Sept. 26, 2019) (reducing the
mandatory life sentence to time served); Order, United States
v. Felton, 93-cr-123, dkt. 286 (E.D.N.C. Nov. 19, 2019)
18
(reducing the sentence from life to 360 months) (for more on
the case, see Gov. Response at dkt. 281); Order, United States
v. Angulo-Lopez, 91-cr-220, dkt. 1359 (W.D. Okla. Dec. 24,
2019) (reducing the sentence from life to time served); Order,
United States v. Herrera, 92-cr-209, dkt. 209 (W.D. Okla. Jan.
10, 2020) (reducing the sentence from life to time served);
United States v. Bowman, 92-cr-392, 2020 WL 470284
(S.D.N.Y. Jan. 29, 2020) (reducing the sentence from life to
time served plus two weeks); Order, United States v. Cook, 95cr-89, dkt. 405 (E.D. Tenn. Jan. 31, 2020) (reducing the
sentence from mandatory life to 360 months and reducing
supervised release to less than the § 841(b)(1)(A) minimum)
(for more on the case, see Gov. Response at dkt. 391); Am.
Judg’t, United States v. Robinson, 98-cr-60, dkt. 620 (E.D. Wis.
Feb. 13, 2020) (after a hearing, reducing the sentence to time
served plus three months, following Decision and Order,
United States v. Robinson, 98-cr-60, dkt. 606 (E.D. Wis. Sept.
27, 2019) (finding Robinson eligible for a reduction from his
mandatory life sentence)); Order, United States v. Rooks, 95-cr89, dkt. 407 (E.D. Tenn. Apr. 29, 2020) (reducing the sentence
from life to time served) (for more on the case, see Gov.
Response at dkt. 397); Memorandum, United States v. Hill, 96cr-399, dkt. 635 (D. Md. Apr. 30, 2020) (reducing the sentence
from life to 330 months, following Memorandum, United States
v. Hill, 96-cr-399, dkt. 621 (D. Md. Feb. 24, 2020) (finding Hill
eligible for a reduction from his mandatory life sentence));
Memorandum, United States v. Jones, 96-cr-399, dkt. 634 (D.
Md. Apr. 30, 2020) (reducing the sentence from life to 330
months, following Memorandum, United States v. Jones, 96-cr399, dkt. 623 (D. Md. Feb. 24, 2020) (finding Jones eligible for
a reduction from his mandatory life sentence)); Order, United
States v. Daniels, 93-cr-130, dkt. 159 (E.D.N.C. June 26, 2020)
(reducing the sentence from life to 272 months and reducing
supervised release to less than the § 841(b)(1)(A) minimum)
(for more on the case, see Gov. Response at dkt. 121); Order,
United States v. Williams, 97-cr-142, dkt. 688 (E.D.N.C. Aug.
28, 2020) (reducing the sentence from life to 360 months);
Order, United States v. Pone, 93-cr-40, dkt. 802 (E.D. Penn.
Oct. 22, 2020) (reducing the sentence from life to time served
19
sentences.18 This collection of cases is undoubtedly
incomplete.
and reducing supervised release to less than the § 841(b)(1)(A)
minimum) (for more on the case, see Gov. Response at dkt.
798); Order, United States v. Smith, 88-cr-519, dkt. 178 (E.D.
Penn. Nov. 18, 2020) (reducing the sentence from life to time
served plus six months) (for more on the case, see Gov.
Response at dkt. 177); Order, United States v. Novene, 91-cr115, dkt. 168 (E.D. Tenn. Jan. 11, 2021) (reducing the sentence
from life to 420 months); Opinion, United States v. Knight, 98cr-3, dkt. 288 (W.D. Penn. Jan. 27, 2021) (reducing the sentence
from life to time served); United States v. Robinson, 95-cr-79,
2021 WL 5958356 (D. Neb. Dec. 16, 2021) (reducing the
sentence from mandatory life to time served and the term of
supervised release to less than the § 841(b)(1)(A) minimum, on
remand from the Eighth Circuit); United States v. White, et al.,
93-cr-97, 2022 WL 3646614 (D.D.C. Aug. 24, 2022) (reducing
the sentence of one co-defendant from life to 420 months and
the other from life to 396 months, on remand from the D.C.
Circuit); United States v. Fairly, 95-cr-5193, 2022 WL 3999885
(E.D. Cal. Sept. 1, 2022) (reducing the sentence from
mandatory life to time served); United States v. Wyche, 89-cr36, 2023 WL 130825 (D.D.C. Jan. 9, 2023) (reducing the
sentence from life to 336 months); United States v. Palmer, 89cr-36, 2023 WL 2265255 (D.D.C. Feb. 28, 2023) (reducing the
sentence from life to time served).
Order, United States v. Slaughter, 97-cr-13, dkt. 110
(E.D.N.C. June 6, 2019) (reducing the sentence from 360 to 262
months) (for more on the case, see Gov. Response at dkt. 106);
Order, United States v. Morton, 96-cr-51, dkt. 245 (E.D.N.C.
Aug. 1, 2019) (reducing the sentence from 324 months to time
served and reducing supervised release to less than the
§ 841(b)(1)(A) minimum) (for more on the case, see Gov.
Response at dkt. 240); Decision and Order, United States v.
Sallis, 98-cr-60, dkt. 603 (E.D. Wis. Sept. 17, 2019) (reducing
the sentence from 360 to 288 months); United States v. Baxter,
99-cr-215, 2019 WL 5681189 (S.D.W.V. Oct. 31, 2019)
(reducing the sentence from 360 to 240 months and reducing
18
20
supervised release to less than the § 841(b)(1)(A) minimum);
Order, United States v. Brown, 95-cr-144, dkt. 119 (E.D.N.C.
Oct. 31, 2019) (reducing the sentence from 360 to 240 months
and reducing supervised release to less than the § 841(b)(1)(A)
minimum) (for more on the case, see Gov. Response at dkt.
112); Decision and Order, United States v. Brough, 98-cr-222,
dkt. 176 (E.D. Wis. Dec. 11, 2019) (reducing the sentence from
360 months to time served); United States v. Miller, 96-cr-365,
2019 WL 7811312 (E.D. Mo. Dec. 17, 2019) (reducing the
sentence from 240 to 188 months and reducing supervised
release to less than the § 841(b)(1)(A) minimum); United States
v. Richardson, 94-cr-50068, 2020 WL 1942433 (W.D. La. Apr.
22, 2020) (reducing the sentence from 405 to 360 months);
Order, United States v. Logan, dkt. 87 (C.D. Ill. June 22, 2020)
(reducing the term of supervised release to less than the
§ 841(b)(1)(A) minimum of five years) (for more on the case, see
Joint Motion for Reduced Sentence at dkt. 86); United States v.
Jackson, 94-cr-30131, 2020 WL 3639904 (S.D. Ill. July 6, 2020)
(reducing the sentence from 360 months to time served)
(related to this case, see also Gov. Supp’l Resp. at 7–8, dkt. 187,
explaining that under circuit law, the statutory range at
§ 841(b)(1)(A) no longer applied)); Order, United States v.
Williams, 98-cr-30080, dkt. 81 (C.D. Ill. July 31, 2020)
(reducing the sentence from the § 841(b)(1)(A) minimum of 240
to 211 months and reducing supervised release to less than the
§ 841(b)(1)(A) minimum) (for more on the case, see Motion at
dkt. 77); United States v. Reed, 93-cr-40050, 2020 WL 5790430
(S.D. Ill. Sept. 28, 2020) (reducing the sentence from 420
months to time served and reducing supervised release to less
than the § 841(b)(1)(A) minimum); Order, United States v.
Fells, 94-cr-46, dkt. 724 (E.D.N.C. Dec. 17, 2020) (reducing the
crack sentences from 327 to 262 months) (for more on the case,
see Gov. Response at dkt. 653); Order, United States v.
Henderson, 97-cr-74, dkt. 707 (W.D. Wis. Jan. 11, 2021)
(reducing the term of supervised release to less than the
§ 841(b)(1)(A) minimum) (for more on the case see Motion at
dkt. 706); Order, United States v. Johnson, 94-cr-64, dkt. 808
(W.D. Okla. Mar. 29, 2021) (reducing the sentence from 410
months to time served) (for more on the case, see Motion at dkt.
21
The individuals who were the subject of these
sentence reductions are mostly home with their
families now. One NAFD member who shared the
name of a client with undersigned counsel so that his
case could be included in this brief noted that her
client—who was previously serving a mandatory life
sentence based on facts that were for all relevant
purposes identical to the facts of Mr. Perez’s case,
except that her client’s offense involved a much
larger quantity of crack cocaine—is currently
attending college. Mr. Perez, in contrast, is slated to
remain in prison for the rest of his natural life, and
the district court is barred from even considering a
lower sentence. This is untenable.
807); Order, United States v. Bullock, 95-cr-296, dkt. 946 (E.D.
Penn. Nov. 29, 2021) (on remand from the Third Circuit,
reducing supervised release to less than the § 841(b)(1)(A)
minimum, after previously (at dkt. 934) reducing the sentence
from 360 months to time served); Order, United States v.
Hunter, 97-cr-20027, dkt. 106 (C.D. Ill. July 20, 2022) (reducing
the term of supervised release to less than the § 841(b)(1)(A)
minimum).
22
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted, or alternatively the
opinion under review should be summarily reversed.
Respectfully submitted,
Michael Holley
Co-Chair, Amicus
Committee
Joanna Munson Perales
Member, Amicus
Committee
NATIONAL ASSOCIATION OF
FEDERAL DEFENDERS
June 30, 2023
Shelley Fite (Counsel of Record)
Davina T. Chen
National Sentencing
Resource Counsel
FEDERAL PUBLIC AND
COMMUNITY DEFENDERS
22 E. Mifflin St., Ste. 1000
Madison, WI 53704
(608) 234-0883
Shelley_Fite@fd.org
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