Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

United States v. Broadway.

No. 20-1034. D.Colo. Judge Tymkovich. First Step Act—Fair Sentencing Act—US Sentencing Guidelines—Statutory Interpretation.

June 21, 2021

In 2007, police found 487.82 grams of crack cocaine in defendant’s apartment. At that time, possession of 50 grams of crack cocaine was sufficient to trigger the highest statutory penalty available under 21 USC § 841(b)(1). Defendant stipulated to possessing 487.82 grams in exchange for the government’s agreement to recommend a sentence at the bottom of the US Sentencing Guidelines (USSG) range. The district court enhanced defendant’s offense level because he was designated as a career offender under USSG § 4B1.1. It imposed a sentence of 262 months’ imprisonment, at the bottom of the sentencing range.

In 2019 defendant filed a First Step Act (Act) motion requesting a reduction to 188 months’ imprisonment based on his USSG calculation had he been sentenced under the Act. He argued that he could not have been convicted under the post-2010 Fair Sentencing Act version of 21 USC § 841(b)(1)(A)(iii), which had raised the threshold possession quantity from 50 to 280 grams, so his base offense level under the career offender guideline would therefore have been lower. The district court denied defendant’s motion.

On appeal, defendant argued that the district court erred in concluding that application of the Act did not change his guidelines range because the court tied the change in the statutory penalty range to his underlying conduct (487.82 grams) rather than the offense of conviction (50 grams or more). Defendant maintained that if the district court had used 50 grams to apply the Act as if it were in effect at the time the covered offense was committed, his statute of conviction would have been 21 USC § 841(b)(1)(B)(iii), which applies to 28 to 279 grams of crack cocaine and has a lower statutory penalty range. This would have lowered defendant’s base offense level per the career offender guideline and resulted in a lower USSG range.

Before passage of the Fair Sentencing Act, crack cocaine defendants were punished more severely than powder cocaine defendants. The Fair Sentencing Act addressed this disparity, but it was not made retroactive to defendants sentenced under the 1986 Anti-Drug Abuse Act. The Act made the Fair Sentencing Act’s amendments to crack cocaine penalties retroactive. Consistent with the Act’s plain meaning, a district court should look to the minimum drug quantity associated with an eligible defendant’s offense of conviction, rather than the underlying conduct, to determine whether the Act would have affected the sentence had it been in effect at the time of the crime and impose a reduced sentence accordingly. 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. Here, in denying defendant’s motion, the district court did not start with the offense of conviction and lowered guidelines range, so it erred.

The denial of defendant’s First Step Act motion was reversed and the case was remanded with instructions to reconsider.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Back to the From the Courts Page