Crack Cocaine Offenses and the First Step Act of 2018: Overview and Implications of Terry v. United States

Crack Cocaine Offenses and the First Step Act of 2018: Overview and Implications of Terry v. United States

Legal Sidebari

Crack Cocaine Offenses and the First Step Act
of 2018: Overview and Implications of Terry v.
United States
June 22, 2021
On June 14, 2021, the Supreme Court issued an opinion in Terry v. United States, unanimously holding
that a person convicted of possession with intent to distribute crack cocaine prior to enactment of the First
Step Act of 2018 is eligible for a retroactive sentence reduction under the First Step Act only if the crack
offense triggered a mandatory minimum sentence. This Legal Sidebar outlines relevant background
related to sentencing for criminal offenses involving crack and powder cocaine, then discusses the
Supreme Court’s decision in Terry. The Sidebar concludes with considerations for Congress related to
powder and crack cocaine sentencing.
Background on Federal Cocaine Sentencing
The Controlled Substances Act (CSA) imposes a comprehensive system of federal regulation on certain
drugs and other substances deemed to pose a significant risk of abuse and dependence, including some
prescription drugs and many recreational drugs. The CSA divides controlled substances into five lists,
known as schedules. A lower schedule number carries more stringent regulations, and it is unlawful to
manufacture, possess, or distribute a controlled substance except as authorized under the CSA.
Congress enacted the CSA in 1970. Among other things, the 1970 legislation placed cocaine in Schedule
II under the CSA and imposed criminal penalties for the unlawful manufacture, distribution, dispensing,
or possession with intent to manufacture, distribute, or dispense any “narcotic drug,” including cocaine.
The CSA as enacted did not distinguish between powder and crack cocaine. However, in response to
concerns about a “crack epidemic” that arose in the mid-1980s, Congress later amended the CSA in 1986,
imposing mandatory minimum sentences for certain offenses involving cocaine. While the minimum
sentences applied to both powder and crack cocaine, the amount of each substance required to trigger the
mandatory minimum varied by a ratio of 100-to-1. For example, offenses involving 5 kilograms of
cocaine powder or 50 grams of cocaine base (i.e., crack) carried a mandatory 10-year sentence, and
offenses involving 500 grams of cocaine powder or 5 grams of cocaine base carried a mandatory 5-year
sentence. Offenses involving smaller amounts or an unspecified amount of cocaine (whether powder or
crack) were also subject to criminal penalties but did not carry a mandatory minimum prison term.
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After the 1986 legislation was enacted, some commentators and stakeholders, including the U.S.
Sentencing Commission (USSC), raised concerns that the disparity between the thresholds for powder
and crack cocaine was too great, and that crack offenders were disproportionately Black, creating a
“perception of unfairness.” In response, Congress enacted the Fair Sentencing Act of 2010, which, among
other things, raised the amounts of crack required to trigger mandatory minimum sentences, reducing the
disparity between the thresholds for powder and crack cocaine to a ratio of approximately 18-to-1. The
Fair Sentencing Act applied to future cases and cases that were pending on the date of enactment, but did
not apply to cases in which a sentence had already been imposed.
Following enactment of the Fair Sentencing Act, the USSC updated the drug quantity tables in the U.S.
Sentencing Guidelines (Guidelines) to reflect changes made by the legislation. The Guidelines are a
complex system of rules for arriving at a suggested sentencing range for each federal offender and
offense. While the Guidelines are advisory and cannot mandate a certain sentence, a federal court must
consider them in determining what sentence to impose within statutory parameters. The USSC made the
changes to the Guidelines retroactive, meaning that offenders sentenced prior to enactment of the Fair
Sentencing Act of 2010 could seek a reduction in their sentence based on changes to the Guidelines drug
quantity tables that brought recommended sentence ranges under the Guidelines in line with the crack-to-
powder ratio reflected in the Fair Sentencing Act. That said, the USSC did not, and could not, change the
statutory penalties in effect at the time an offender was sentenced. In other words, because Congress did
not make the Fair Sentencing Act retroactive, offenders sentenced prior to passage of that statute
remained subject to the mandatory minimums then in effect and could not have their sentences reduced
below those minimums, even if recommended under the Guidelines. Additionally, under the Guidelines,
some offenders who were sentenced as “career offenders” (meaning they were convicted of a felony
“controlled substance offense” or “crime of violence” when over the age of 18 and after two prior
convictions of the same) could seek neither a statutory nor a Guidelines sentence reduction, as the
amendments to the drug quantity tables did not affect the separate career offender guideline.
Congress addressed the non-retroactivity of the Fair Sentencing Act through the First Step Act in 2018.
The First Step Act made the Fair Sentencing Act’s changes to crack sentences retroactive and permitted
those convicted and sentenced prior to passage of the Fair Sentencing Act to seek resentencing. The Act
applied to any “covered offense,” defined in part as “a violation of a Federal criminal statute, the statutory
penalties for which were modified by” the Fair Sentencing Act provision that altered the crack-to-powder
ratio for purposes of the relevant CSA offenses. Federal courts divided on the question of which statutory
penalties were “modified by” the Fair Sentencing Act such that an offense subject to such penalties would
constitute a “covered offense.” As noted above, the CSA establishes three relevant tiers of penalties for
the unlawful manufacture, distribution, dispensing, or possession with intent to manufacture, distribute, or
dispense crack. Offenses involving the highest amount of crack are subject to a 10-year mandatory
minimum sentence of imprisonment. Offenses involving a lower amount of crack are subject to a 5-year
mandatory minimum. And offenses involving the lowest or an unspecified amount of crack are punishable
by imprisonment but are not subject to a mandatory minimum. The Fair Sentencing Act changed the
amounts of crack that trigger mandatory minimum sentences under the highest tier and the middle tier
from 50 grams to 280 and from 5 grams to 28, respectively. The Act did not expressly amend the lowest
tier—which carries no mandatory minimum and does not specify an amount of crack for purposes of
punishment (and does not expressly distinguish between crack and other forms of cocaine).
Thus, one question courts have grappled with since the First Step Act’s passage in 2018 is whether
offenders convicted under the lowest tier prior to changes made by the Fair Sentencing Act can now seek
retroactive resentencing; put another way, was the lowest tier “modified by” the Fair Sentencing Act? The
question produced a split among the U.S. Courts of Appeals. Some courts held that the Fair Sentencing
Act did modify the lowest tier because, by increasing the amount of crack needed to impose the
mandatory minimum in the middle tier, offenders who previously would have fallen in the middle tier
now fell in the lowest tier. By adopting this view, some courts determined that by changing the middle tier

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from 5 to 28 grams of crack, the Fair Sentencing Act in effect raised the upper limit for sentencing in the
lowest tier as well. Other courts held, to the contrary, that the lowest tier was not modified by the Fair
Sentencing Act because that Act changed only the amounts of crack relevant to imposing mandatory
minimums under the middle and highest tiers. The Supreme Court stepped in to resolve the split, granting
certiorari in Terry v. United States on January 8, 2021.
The Supreme Court Decision in Terry
The petitioner in Terry v. United States pled guilty in 2008 to possession with intent to distribute a small,
unspecified amount of crack cocaine. The petitioner’s offense fell within the lowest statutory penalty tier
under the CSA, meaning he was not subject to either the 5- or 10-year mandatory minimums described
above. The sentencing court determined that the petitioner was a career offender under the Sentencing
Guidelines and sentenced him to 188 months’ imprisonment. Following enactment of the Fair Sentencing
Act and the attendant retroactive amendments to the Guidelines, the petitioner sought resentencing
pursuant to the new Guidelines but was unsuccessful because the Guidelines changes did not apply to
career offenders. The petitioner then sought resentencing after passage of the First Step Act, arguing that
his sentence qualified as a “sentence for a covered offense” within the meaning of that Act. Both the
district court and the U.S. Court of Appeals for the Eleventh Circuit disagreed, with the Eleventh Circuit
holding “that offenders are eligible for a sentence reduction only if they were convicted of a crack offense
that triggered a mandatory minimum.”
In a June 14, 2021, decision, the Supreme Court affirmed, concluding unanimously that the Fair
Sentencing Act did not modify the statutory penalties for the petitioner’s offense under the lowest penalty
tier. Focusing on the text of the relevant provisions, the Court recognized that “[b]efore 2010, the
statutory penalties for that offense were 0-to-20 years, up to a $1 million fine, or both, and a period of
supervised release,” and “these statutory penalties remain exactly the same” after 2010. The Court thus
viewed as “straightforward” the result that no statutory penalties under the lowest penalty tier were
“modified” by the Fair Sentencing Act within the meaning of the First Step Act, meaning that offenses in
the lowest tier sentenced prior to 2010 are not “covered offense[s]” eligible for First Step Act
resentencing. Justice Sotomayor wrote separately to argue that, in light of the Court’s decision, some
offenders sentenced under the lowest tier before 2010 “have been left behind” despite the reduction of the
crack-to-powder disparity. Justice Sotomayor noted that, if the petitioner in Terry had been convicted of
possessing with intent to distribute larger amounts of crack, he would have been eligible to seek
resentencing under the First Step Act in light of the Fair Sentencing Act’s modification of the middle and
highest penalty tiers. Justice Sotomayor further noted that, even if convicted under the lowest tier, the
petitioner would have been eligible for a sentence reduction under the Guidelines if his range “had been
calculated like that of a non-career offender.” But because the petitioner was both convicted under the
lowest penalty tier and sentenced as a career offender under the Guidelines, Justice Sotomayor stated that
“he has never had a chance to ask for a sentence that reflects today’s understanding of the lesser severity
of his crime.” Justice Sotomayor thus concluded that although the text of the First Step Act “will not
bear” a reading that applies the Fair Sentencing Act retroactively to offenders like the petitioner in Terry,
“Congress has numerous tools to right [that] injustice.”
Considerations for Congress
Following the Supreme Court’s decision in Terry, Congress might examine whether to expand
resentencing opportunities for crack offenses committed before the enactment of the Fair Sentencing Act
of 2010. It appears that at least some Members of Congress who supported the First Step Act intended the
legislation to reach broadly and encompass all crack offenders. For instance, four Senators who were lead
sponsors and drafters of the 2018 legislation filed an amicus brief in Terry, arguing that the First Step Act
“authorizes relief to everyone who had been sentenced for crack-cocaine offenses before the Fair

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Sentencing Act became effective, including individuals with low-level crack offenses” that did not carry
mandatory minimum sentences. Additionally, some commentators have argued that it would be
incongruous or arbitrary to allow resentencing for individuals convicted of offenses involving large
amounts of crack while leaving in place sentences involving smaller amounts of the substance.
More generally, Congress might also examine whether to alter or eliminate the disparity in sentencing
thresholds between crack and powder cocaine. Congress originally imposed lower quantity thresholds for
crack offenses based on concerns that crack was cheaper, more potent, more addictive, and overall more
dangerous than other forms of cocaine. However, some commentators argue that the current eighteen-to-
one ratio is not justified on scientific or public safety grounds and disproportionately affects Black
offenders. If Congress elected to modify the threshold amounts that trigger mandatory minimum
sentences under the CSA, it could also consider whether those changes should apply retroactively.
A proposal currently pending before Congress entitled the Eliminating a Quantifiably Unjust Application
of the Law Act, or EQUAL Act (S. 79, H.R. 1693), would seek to address both the retroactivity question
presented in Terry and the sentencing disparity. With respect to the sentencing disparity between crack
and powder cocaine, the EQUAL Act would repeal the CSA provisions that impose mandatory minimum
sentences for offenses involving crack. Because crack also falls within the broader category of cocaine,
certain crack offenses would remain subject to mandatory minimum sentences. However, the quantity of
crack required to trigger a mandatory minimum sentence would no longer be lower than the quantity of
other forms of cocaine. With respect to retroactivity, the EQUAL Act would authorize resentencing of any
“defendant who, before the date of enactment of [the EQUAL] Act, was convicted or sentenced for a
Federal offense involving cocaine base.” That language appears to include offenders who, like the
petitioner in Terry, were convicted of crack offenses that did not carry a mandatory minimum sentence.

Author Information

Michael A. Foster
Joanna R. Lampe
Legislative Attorney
Legislative Attorney

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