New opinions, including a big First Step Act case

U.S. v. Jackson—criminal sentencing—reversal—Smith

Back in the worse-old-days, the Sentencing Guidelines treated crack cocaine far more harshly than powder cocaine, a disparity widely criticized as racist. Congress changed that in 2010, but only for future cases, not for people already sentenced. Finally in 2018 Congress passed the First Step Act, which gave district courts discretion to reduce pre-2010 sentences to give them the benefit of the 2010 law, too.

Without getting too deep in the weeds, suffice to say that eligibility for First Step Act reductions turns on a drug-quantity number. (Pre-2010 sentences for crack distribution jumped upwards when the quantity possessed exceeded 5 grams; after 2010, the threshold rose to 28 grams.) The issue at the heart of today’s appeal was how that drug quantity should be determined: (a) by the crime of conviction, or (b) by the facts of each case. (This echoes other crim-law fights over whether to apply the categorical approach.)

The question arose in a two-defendant consolidated appeal:

  • Kevin Harris pleaded guilty to possessing more than 5 grams of crack with intent to distribute it and he was sentenced to 17-and-a-half years in prison. In his plea agreement, he stipulated that he possessed 33.6 grams of crack.
  • A jury found Anthony Jackson guilty of possessing more than 5 grams of crack with intent to distribute it and he was sentenced to 25 years in prison. The indictment charged him with having 48 grams.

So if the drug quantity that matters is the crime of conviction, both are eligible. If it’s the facts of the case that matter, neither is.

(It’s not the point of the case, but just pause a second to reflect on the stupefying brutality of those sentences. 33.6 grams of sugar equals less than 3 tablespoons; 48 grams less than 4. Both men got 6 years in prison per tablespoon. Sentences like that are so routine that it’s easy to lose sight of how terrible that is.)

Today, the Third Circuit held that eligibility for the reduction depends on the drug quantity from the statute of conviction, not from the facts of the case. The opinion is a model of careful statutory interpretation, both plain meaning and canons of construction. The court joined every other circuit to decide the issue.

Judge Hardiman dissented, acknowledging that the weight of authority strongly favored the majority but lucidly explaining why he found several district court opinions ruling the other way more persuasive.

Joining Smith was Krause, with Hardiman dissenting. Arguing counsel were Robert Zauzmer of EDPA and Ira Karoll of WDPA (a former Hardiman clerk) for the government, Christy Martin of the EDPA FCDO and Samantha Stern of the WDPA FDP for the defendants.


Leo v. Nationstar Mortgage—civil—affirmance—Smith

The Third Circuit today held that the filed-rate doctrine precluded borrowers’ overcharge claims against insurers because the alleged overcharges were baked into a rate filed with regulatory authorities.

Joining Smith were Chagares and Porter. The appeal was decided without oral argument.