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Constitutional Accountability Center As Amicus Curiae in Support of Petitioner ______Elizabeth B

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Constitutional Accountability Center As Amicus Curiae in Support of Petitioner ______Elizabeth B No. 20-5904 IN THE Supreme Court of the United States _______________________ TARAHRICK TERRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ______________________ On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit ______________________ BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER AS AMICUS CURIAE IN SUPPORT OF PETITIONER _______________________ ELIZABETH B. WYDRA BRIANNE J. GOROD* MIRIAM BECKER-COHEN CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 [email protected] Counsel for Amicus Curiae February 19, 2021 * Counsel of Record TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................. iii INTEREST OF AMICUS CURIAE ...................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................... 1 ARGUMENT ......................................................... 7 I. THE TEXT OF THE FIRST STEP ACT MAKES INDIVIDUALS SENTENCED UNDER § 841(b)(1)(C) FOR CRACK-COCAINE OFFENSES ELIGIBLE FOR REDUCED SENTENCES ........................................ 7 A. The Phrase “Federal Criminal Statute” Refers to § 841(a) in this Case .................................................. 7 B. Section 2 of the Fair Sentencing Act “Modified” § 841(b)(1)(C) .......... 15 II. CONGRESS’S PLAN WAS TO PROVIDE BROAD RELIEF TO INDIVIDUALS SENTENCED FOR CRACK-COCAINE OFFENSES, INCLUDING THOSE SENTENCED UNDER § 841(b)(1)(C) ......................... 18 A. Congress Was Especially Concerned with People Sentenced for Low-Level Crack-Cocaine Offenses When It Passed the Fair Sentencing Act ................................. 18 (i) ii TABLE OF CONTENTS – cont’d Page B. Interpreting the First Step Act to Provide Relief to People Sentenced for Crack-Cocaine Offenses Pursuant to § 841(b)(1)(C) Accords with the Act’s Broad Remedial Purpose ............................................ 19 CONCLUSION ..................................................... 24 iii TABLE OF AUTHORITIES Page(s) Cases Alleyne v. United States, 570 U.S. 99 (2013) ...................................... 12 Almendarez-Torres v. United States, 523 U.S. 224 (1998) .................................... 9 BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006) ...................................... 8 Dorsey v. United States, 567 U.S. 260 (2012) ........................... 3, 4, 18, 19 Fowler v. United States, 563 U.S. 668 (2011) .................................... 11 Hibbs v. Winn, 542 U.S. 88 (2004) ...................................... 10 Kimbrough v. United States, 552 U.S. 85 (2007) ...................................... 2 MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994) .................................... 6, 15 Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018) .................................. 9 Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ...................................... 12 Pereira v. Sessions, 138 S. Ct. 2105 (2018) ................................ 11 iv TABLE OF AUTHORITIES – cont’d Page(s) Perrin v. United States, 444 U.S. 37 (1979) ...................................... 17 United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534 (1940) .................................... 23 United States v. Birt, 966 F.3d 257 (3d Cir. 2020) ...................... 10, 13 United States v. Hogsett, 982 F.3d 463 (7th Cir. 2020) ...................... 17 United States v. Jackson, 945 F.3d 315 (5th Cir. 2019) ...................... 14 United States v. Jones, 962 F.3d 1290 (11th Cir. 2020) ................. 12, 14 United States v. McDonald, 944 F.3d 769 (8th Cir. 2019) ...................... 14 United States v. Smith, 954 F.3d 446 (1st Cir. 2020) ................. 9, 12, 22 United States v. White, 984 F.3d 76 (D.C. Cir. 2020) ...................... 14 United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019) ...................... 14 United States v. Woodson, 962 F.3d 812 (4th Cir. 2020) ...................... 17 v TABLE OF AUTHORITIES – cont’d Page(s) Statutes and Legislative Materials 21 U.S.C. § 841(a)(1) ..................................... 6, 8 21 U.S.C. § 841(b) .......................................... 8 21 U.S.C. § 841(b)(1)(C) ................................ 16 21 U.S.C. § 842 .............................................. 9 21 U.S.C. § 843 .............................................. 9 21 U.S.C. § 844 .............................................. 10 21 U.S.C. § 960 .............................................. 10 155 Cong. Rec. (daily ed. Oct. 15, 2009) ............................ 18, 19 156 Cong. Rec. (daily ed. July 28, 2010) ............................. 18 164 Cong. Rec. (daily ed. Nov. 15, 2018) .......................... 6, 7, 22 164 Cong. Rec. (daily ed. Dec. 17, 2018) ............................ 4, 23 164 Cong. Rec. (daily ed. Dec. 18, 2018) .................... 4, 6, 21, 22 164 Cong. Rec. (daily ed. Dec. 20, 2018) ............................. 22 Actions Overview S.756—115th Congress (2017-2018), https://www.con- gress.gov/bill/115th-congress/senate- bill/756/actions ........................................... 21 vi TABLE OF AUTHORITIES – cont’d Page(s) Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) .................... 2 Cosponsors S.3649—115th Congress (2017-2018), https://www.con- gress.gov/bill/115th-congress/senate- bill/3649/cosponsors ................................... 21 Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) ............. 3, 11, 19 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ............. passim H.R. 3382, 113th Cong. (2013) ...................... 17 H.R. 5682, 115th Cong. (2018) ...................... 20 H.R. Rep. No. 115-699 (2018) ....................... 20 S. 2123, 114th Cong. (2015) .......................... 17 S. 3649, 115th Cong. (2018) .......................... 20 Books, Articles, and Other Authorities Amend, Black’s Law Dictionary (11th ed. 2019) ............................................ 16 Ames Grawert & Tim Lau, How the FIRST STEP Act Became Law—and What Hap- pens Next, Brennan Ctr. for Justice (Jan. 4, 2019) ....................................................... 20 Modify, Black’s Law Dictionary (11th ed. 2019) ............................................ 16 vii TABLE OF AUTHORITIES – cont’d Page(s) Sarah E. Ryan, Judicial Authority Under the First Step Act: What Congress Conferred Through Section 404, 52 Loy. U. Chi. L.J. 67 (2020) .................... 21 U.S. Sentencing Commission, Report to Congress: Impact of the Fair Sentencing Act of 2010 (Aug. 2015) .............................. 4 Violate, American Heritage Dictionary, https://www.ahdiction- ary.com/word/search.html?q=violate ......... 8 Violate, Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dic- tionary/violate ........................................... 8 1 INTEREST OF AMICUS CURIAE1 Amicus Constitutional Accountability Center (CAC) is a think tank, public interest law firm, and ac- tion center dedicated to fulfilling the progressive promise of our Constitution’s text and history. CAC works in our courts, through our government, and with legal scholars to improve understanding of the Consti- tution and preserve the rights and freedoms it guaran- tees. CAC also works to ensure that courts remain faithful to the text and history of important federal statutes like the First Step Act. Accordingly, CAC has a strong interest in ensuring that the First Step Act is understood, in accordance with its text and Congress’s plan in passing it, to permit reductions in sentences for individuals sentenced for low-level crack-cocaine of- fenses pursuant to 21 U.S.C. § 841(b)(1)(C). INTRODUCTION AND SUMMARY OF ARGUMENT Under 21 U.S.C. § 841, it is a federal crime to man- ufacture, distribute, or dispense—or possess with in- tent to manufacture, distribute, or dispense—various controlled substances, including crack and powder co- caine. Subsection (a) of § 841 describes the “[u]nlawful acts” prohibited, and subsection (b) describes the “[p]enalties” for those unlawful acts. Subsection (b) is further divided into three tiers of sentencing ranges 1 The parties have consented to the filing of this brief, and their letters of consent have been filed with the Clerk. Under Rule 37.6 of the Rules of this Court, amicus states that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus or its counsel made a monetary contribution to its prepa- ration or submission. 2 for “any person who violates subsection (a).” As origi- nally enacted in the Anti-Drug Abuse Act of 1986, § 841(b)(1)(A) prescribed a mandatory minimum sen- tence of 10 years for offenses involving 50 grams or more of crack cocaine, and § 841(b)(1)(B) prescribed a mandatory minimum of 5 years for offenses involving 5 grams or more of crack cocaine. See Pub. L. No. 99- 570, § 1002, 100 Stat. 3207 (1986). The residual pen- alty provision, § 841(b)(1)(C), prescribed an unen- hanced statutory range of 0 to 20 years for all offenses, “except as provided in subparagraphs (A), (B),” and an- other provision not relevant to this case. Id. The quantities of crack cocaine specified in the orig- inal version of § 841(b), as compared with their powder cocaine counterparts, created a 100-to-1 sentencing disparity. In other words, for purposes of criminal punishment, the law treated every gram of crack co- caine as the equivalent of
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