District Court may consider Apprendi’s impact when deciding a First Step Act case

          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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