In 1997,
Robert Ware was convicted by a jury of conspiring to distribute and possess
with intent to distribute cocaine (21 U.S.C. §846); conspiring to distribute
and possess with intent to distribute cocaine base (crack) (21 U.S.C. §846);
and distributing and possessing with intent to distribute cocaine (21 U.S.C.
§841(a)(1). There were no specific findings regarding the drug quantities involved
in those offenses. United States v. Ware,
According to the
PSR, Mr. Ware’s guidelines range was 360 months to life. His statutory
sentencing range on the powder cocaine convictions was 10 years to life (21
U.S.C. §841(b)(1)(A)(ii)) and on the crack conviction it was 0 to 20 years (21
U.S.C. §841(b)(1)(C)). He was sentenced to 360 months imprisonment and 5 years
of supervised release. The district court did not specify the sentence for each
count, instead it imposed a general sentence for all three offenses. The court also
did not indicate the specific statutory provisions of §841(b)(1) under which Mr.
Ware was sentenced.
In 2019, Mr. Ware
sought a First Step Act sentence reduction. The district court found that he was
eligible for a sentence reduction but it was concerned about sentencing disparities.
The court noted that the minimum guideline sentence would have been 360 months
even without the crack offense and that First Step Act relief was not available
to other offenders who had a similar amount of powder cocaine but did not have
an additional crack charge. The court denied Mr. Ware any relief.
Mr. Ware appealed
the ruling and argued that since a jury did not find that his offenses involved
specific drug amounts, he could be lawfully sentenced under present law only
under 21 U.S.C. §841(b)(1)(C), which imposed a statutory cap of 20 years on
each count which was 10 years less than his current sentence. Mr. Ware contended
that the higher sentencing ranges in §§841(b)(1)(A) and (B) could not be
applied to him under Apprendi v. New Jersey, 530 U.S. 466 (2000) and
recent statutory interpretation of those provisions.
The Sixth
Circuit found that Mr. Ware’s statutory construction argument was foreclosed by
Circuit precedent but it considered his argument “as an alleged Apprendi error.” Slip. Op. at 7. Although
Apprendi does not apply retroactively
to cases on collateral review, “the ‘retroactivity’ of a new constitutional
rule concerns whether the rule provides an independent basis on which to grant
relief to a defendant.” Slip. Op. at 8 (citation omitted). The Sixth Circuit explained
that since “the source of a ‘new rule’ is the Constitution itself, the
underlying right necessarily pre-exists the Supreme Court’s articulation of the
new rule.” Id. (citation and internal
quotation marks omitted). This means that Mr. Ware’s “Sixth Amendment rights were violated when
judge-found facts were used to raise his statutory maximum sentence, even
though this occurred before Apprendi
was decided.” Slip. Op. at 8.
The Sixth
Circuit held that a district court, when deciding whether to grant First Step
Act relief to an offender who was sentenced before Apprendi, may consider the impact that case would have had on his
statutory sentencing range. Id. The district
court’s consideration of Apprendi here
was not an abuse of discretion. The court considered the fact that under Apprendi Mr. Ware’s “statutory maximum
would have been lower because specified drug amounts were not found by the jury
or charged in the indictment.” Slip. Op. at 9. That factor, however, “did not
weigh heavily in favor of granting relief, due in large part to concern
regarding disparities with other similarly situated defendants.” Id. Thus, denial of First Step Act
relief was not an abuse of discretion.
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