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United States v. Wirsing

United States Court of Appeals, Fourth Circuit

November 20, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DANIEL W. WIRSING, a/k/a Big Dog, a/k/a Ace, Defendant-Appellant.

          Argued: October 31, 2019

          Appeal 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)


          Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant.

          Daniel Kane, United States Department of Justice, Washington, D.C., for Appellee.

         ON BRIEF:

          Nicholas J. Compton, Assistant Federal Public Defender, Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.

          William J. Powell, United States Attorney, Jeffrey A. Finucane, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

          Before WYNN, QUATTLEBAUM, and RUSHING, Circuit Judges.


         Defendant 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, 5222.

         The 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).

         Though 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.



         Behind 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.

         In 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).

         The 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, 267-68 (2012).

         The 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.

         The 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) ...

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