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Seventh Circuit Joins Other Circuits Holding Any Crack Cocaine Offense Under § 841 Qualifies for First Step Act Relief

Loaded on Feb. 15, 2021 by Dale Chappell published in Criminal Legal News March, 2021, page 26

Filed under: First Step Act, Crack v. Powdered Cocaine. Location: Illinois.

by Dale Chappell

In a case broadening the scope of relief for crack cocaine offenders under the First Step Act, the U.S. Court of Appeals for the Seventh Circuit held on December 7, 2020, that all three provisions under 21 U.S.C. § 841 dealing with crack cocaine were “modified” by the Fair Sentencing Act of 2010 (“FSA”), allowing the U.S. District Court for the Southern District of Illinois to grant relief.

Samuel Hogsett was arrested in 2005 and eventually convicted and sentenced to almost 30 years in federal prison for drug and gun offenses. The drug conviction involved possession with intent to distribute a mixture of half a gram of crack cocaine, in violation of § 841(a) and (b)(1)(C). At the time, up to 5 grams of crack fell under § 841(b)(1)(C), the catch-all provision of § 841 for small or unknown amounts of crack.

In 2018, Congress enacted the First Step Act, which applied the FSA retroactively to drug offenders sentenced for a “covered offense” prior to August 3, 2010. The First Step Act defines a covered offense as one whose statute of conviction was “modified” by the FSA.

Hogsett filed for relief under the First Step Act, arguing that his sentence was governed by a section of the drug statute that was “modified” by the FSA. The district court denied his claim, ruling that because § 841(b)(1)(C) was left unchanged by the FSA, he did not qualify under the First Step Act.

The Seventh Circuit disagreed. “We do not think that a ‘modification’ must be limited to solely textual alterations,” the Court stated. It is true that the First Step Act didn’t change the text of § 841(b)(1)(C), only the other two provisions. But the Court explained that by changing those two provisions, § 841(b)(1)(C) was “indirectly” modified by the FSA. When the FSA increased the amount of crack needed to violate the first two provisions, this necessarily changed the § 841(b)(1)(C) catch-all provision, the Court reasoned, because for the first time higher amounts of crack fell under that provision. That, itself, was “modification” enough to allow First Step Act relief for § 841(b)(1)(C) crack offenders, the Court concluded.

The Court also took a moment to note its “disagreement” with the courts that have held § 841(b)(1)(C) was not modified by the FSA. Citing U.S. Supreme Court precedent, the Court explained that “statutory terms are generally interpreted in accordance with their ordinary meaning.” Because the First Step Act uses the term “modified” – and not “changed” – the ordinary meaning of modified includes the indirect changes to § 841(b)(1)(C) by the FSA, the Court explained.

Accordingly, the Court reversed the denial of Hogsett’s motion for First Step Act relief and remanded to allow the district court to decide if he qualifies for a reduced sentence. See: United States v. Hogsett, 982 F.3d 463 (7th Cir. 2020).

Editor’s note: The Seventh Circuit joined the First and Fourth Circuits, which have similarly ruled that the FSA modified § 841(b)(1)(C). United States v. Woodson, 962 F.3d 812 (4th Cir. 2020); United States v. Smith, 954 F.3d 446 (1st Cir. 2020). In contrast, the Third Circuit rejected that position, concluding that the FSA did not modify § 841(b)(1)(C). United States v. Birt, 966 F.3d 257 (3d Cir. 2020).

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