Argued: October 31, 2019
from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston
Bailey, District Judge. (3:07-cr-00049-JPB-RWT-1)
R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling,
West Virginia, for Appellant.
Kane, United States Department of Justice, Washington, D.C.,
Nicholas J. Compton, Assistant Federal Public Defender,
Kristen M. Leddy, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia,
William J. Powell, United States Attorney, Jeffrey A.
Finucane, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
WYNN, QUATTLEBAUM, and RUSHING, Circuit Judges.
Daniel Wirsing appeals from the district court's denial
of his Motion for a Reduced Sentence under the First Step Act
of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194,
First Step Act provides that a sentencing 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." Id. §
404(b), 132 Stat. at 5222 (citation omitted). A "covered
offense" 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." Id. §
404(a), 132 Stat. at 5222 (citation omitted).
the Government and Defendant agree that Defendant is entitled
to relief under the First Step Act, the district court found
that Defendant was not entitled to relief because Defendant
was not sentenced for a "covered offense."
Id.; see United States v. Wirsing, No.
3:07-cr-00049-JPB-RWT-1 (N.D. W.Va. Mar. 13, 2019). We
disagree with the district court and therefore reverse and
remand this matter for consideration of a sentence reduction
under the First Step Act.
the passage of the First Step Act lies an extensive history
of congressional revisions to the penalties for drug-related
crimes. The First Step Act is a remedial statute intended to
correct earlier statutes' significant disparities in the
treatment of cocaine base (also known as crack cocaine) as
compared to powder cocaine.
1970, Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act, which separated drugs into five
"schedules" according to their potential for abuse.
Pub. L. No. 91-513, § 202(a)-(b), 84 Stat. 1236, 1247-48
(1970). The statute assigned penalties in accordance with a
drug's schedule and whether it was a narcotic, without
considering quantity (with one minor exception related to
distribution of "a small amount of marihuana for no
remuneration"). Id. § 401(b)(4), 84 Stat.
at 1262; see id. § 401(b), 84 Stat. at 1261-62
(codified at 21 U.S.C. § 841). That changed in 1984,
when Congress introduced quantities to the statute.
Controlled Substances Penalties Amendments Act of 1984, Pub.
L. No. 98-473, § 502, 98 Stat. 1837, 2068-69 (codified
at 21 U.S.C. § 841(b)). The 1984 act constituted an
attempt to "eliminat[e] sentencing dispar[i]ties caused
by classifying drugs as narcotic and nonnarcotic,"
instead tying penalties to drug weight. Chapman v. United
States, 500 U.S. 453, 461 (1991).
disparity between crack and powder cocaine originated in a
statute enacted two years later: the Anti-Drug Abuse Act of
1986. Kimbrough v. United States, 552 U.S. 85, 95
(2007) (citing Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, 100 Stat. 3207). The Anti-Drug Abuse Act introduced
mandatory minimums for offenses involving specified weights
of particular drugs. Anti-Drug Abuse Act § 1002, 100
Stat. at 3207-2 to -4 (codified at 21 U.S.C. §
841(b)(1)). For example, a defendant convicted of an offense
involving "5 kilograms or more of a mixture or substance
containing a detectable amount of . . . cocaine" or
"50 grams or more of a mixture or substance . . . which
contains cocaine base" was subject to a ten-year
mandatory minimum sentence. Id. § 1002, 100
Stat. at 3207-2. Similarly, the statute mandated a five-year
minimum sentence where the conviction related to 500 grams or
more of powder cocaine or 5 grams or more of cocaine base.
Id. § 1002, 100 Stat. at 3207-3. Thus, the 1986
statute provided that "a drug trafficker dealing in
crack cocaine [was] subject to the same sentence as one
dealing in 100 times more powder cocaine."
Kimbrough, 552 U.S. at 91. The Sentencing Guidelines
then incorporated this ratio "for the full range of
possible drug quantities." Id. at 97 (citation
omitted); see Dorsey v. United States, 567 U.S. 260,
100-to-1 ratio came under heavy criticism. See
Dorsey, 567 U.S. at 268; Kimbrough, 552 U.S. at
97-100. For example, between 1995 and 2007, the United States
Sentencing Commission issued four reports to Congress
advising that "the ratio was too high and
unjustified." Dorsey, 567 U.S. at 268. First,
"research showed the relative harm between crack and
powder cocaine [was] less severe than 100 to 1."
Id. In fact, "[t]he active ingredient in powder
and crack cocaine is the same"; the difference is in how
the drugs are ingested, with crack "produc[ing] a
shorter, more intense high." Kimbrough, 552
U.S. at 94. Second, "the public had come to understand
sentences embodying the 100-to-1 ratio as reflecting
unjustified race-based differences." Dorsey,
567 U.S. at 268; see Gov't Br. at 12 (noting
that this "sentencing scheme . . . had [a] racially
disparate impact"); see also Kimbrough, 552
U.S. at 98 (citing the Sentencing Commission's 2002
finding that "[a]pproximately 85 percent of defendants
convicted of crack offenses in federal court are
black"); Barack Obama, The President's Role in
Advancing Criminal Justice Reform, 130 Harv. L. Rev.
811, 827 (2017) (noting that the disparity "resulted in
excessive and unwarranted punishments that fell
disproportionately on defendants of color"); Sonja B.
Starr & M. Marit Rehavi, Mandatory Sentencing and
Racial Disparity: Assessing the Role of Prosecutors
and the Effects of Booker, 123 Yale L.J. 2, 36-37 (2013)
(referring to "the sentencing framework's
notoriously harsh treatment of crack cocaine cases,"
which "disproportionately involv[ed] black
defendants"). Additionally, the 100-to-1 disparity
"mean[t] that a major supplier of powder cocaine [could]
receive a shorter sentence than a low-level dealer who
b[ought] powder from the supplier but then convert[ed] it to
crack." Kimbrough, 552 U.S. at 95; see also
id. at 98.
Supreme Court mitigated the harshest effects of this
sentencing regime in its Booker and
Kimbrough decisions. In United States v.
Booker, the Supreme Court held that the Guidelines were
"effectively advisory"; that is, a sentencing court
was required "to consider Guidelines ranges," but
it could "tailor the sentence in light of other
statutory concerns as well." 543 U.S. 220, 245 (2005).
Then, in Kimbrough v. United States, the Court held
that a sentencing judge could find "that, in the
particular case, a within-Guidelines sentence is 'greater
than necessary' to serve the objectives of sentencing. In
making that determination, the judge may consider the
disparity between the Guidelines' treatment of crack and
powder cocaine offenses." 552 U.S. at 91 (citation
omitted) (quoting 18 U.S.C. § 3553(a)). After
Booker and Kimbrough, some district courts
opted "to vary from the crack cocaine Guidelines based
on policy disagreement with them." Spears v. United
States, 555 U.S. 261, 264 (2009) (per curiam) ...