Criminal Justice

Terry v. United States

In Terry v. United States, the Supreme Court is considering whether certain individuals sentenced for low-level crack-cocaine offenses prior to enactment of the Fair Sentencing Act of 2010 are eligible for reduced sentences under the First Step Act of 2018.

Case Summary

The Anti-Drug Abuse Act of 1986 created a sentencing regime that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine for purposes of criminal punishment.  Over the next two decades, research and experience demonstrated that the 100-to-1 crack-to-powder-cocaine ratio was too high and unwarranted, undermining Congress’s goals of uniformity and proportionality in sentencing, and perpetuating unjustified race-based differences.

To ameliorate those injustices, Congress passed the Fair Sentencing Act of 2010, which reduced the crack-to-powder sentencing disparity to 18-to-1.  That law, however, applied only to individuals who were sentenced after the Act’s effective date of August 3, 2010.  Recognizing that a large number of crack-cocaine offenders sentenced prior to the Fair Sentencing Act were still serving sentences imposed under the 100-to-1 regime, Congress passed the First Step Act of 2018, which made the Fair Sentencing Act’s reforms apply retroactively to individuals sentenced for a “covered offense.”  Congress defined a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.”

The petitioner in this case, Tarahrick Terry, was convicted of a low-level crack-cocaine offense and sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) in 2008.  He filed a request for a reduced sentence after the passage of the First Step Act, and a district court held that he was not eligible for re-sentencing.  The U.S. Court of Appeals for the Eleventh Circuit affirmed, holding that individuals like Mr. Terry who were sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) do not have a “covered offense” within the meaning of the First Step Act.  Mr. Terry asked the Supreme Court to hear his case, and the Court agreed to do so.  CAC filed an amicus curiae brief in support of Mr. Terry, urging the Supreme Court to reverse the Eleventh Circuit’s decision.

Our brief argues that the text and history of the First Step Act, as well as Congress’s plan in passing in it, make clear that Mr. Terry was sentenced for a “covered offense” within the meaning of the Act.  As a result, Mr. Terry and others sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) are eligible for reduced sentences.

First, our brief explains why the plain text of the First Step Act requires treating Mr. Terry’s offense as a “covered offense.”  Before August 3, 2010, Mr. Terry violated a “Federal criminal statute,” specifically 21 U.S.C. § 841(a)(1), which outlaws possessing with intent to distribute crack cocaine.  Further, the statutory penalties for Mr. Terry’s offense, contained in 21 U.S.C. § 841(b)(1)(C), were “modified by section 2 . . . of the Fair Sentencing Act of 2010.”  Specifically, the Fair Sentencing Act increased the quantities of crack-cocaine required to trigger the higher-tier penalties in 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B).  The provision under which Mr. Terry was sentenced, 21 U.S.C. § 841(b)(1)(C), applies where 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) do not apply—it is a residual provision.  Thus, the changes to 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) had the effect of “modifying” the scope of 21 U.S.C. § 841(b)(1)(C), even though Congress did not amend the text of that provision.  Our brief explains the importance of Congress’s choice of the word “modify,” and not “amend,” in the relevant provision of the First Step Act.

Second, our brief explains that reading the First Step Act to apply to individuals sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) comports with the history of the Act and Congress’s plan to reduce disparities in the criminal justice system.  Individuals sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) include some of the lowest-level crack-cocaine offenders, so it would defy logic for Congress to allow drug-trafficking kingpins to petition for reduced sentences, while excluding street-level crack dealers from the First Step Act’s relief.

Case Timeline

  • February 19, 2021

    CAC files amicus curiae brief

    Sup. Ct. Amicus Br.
  • May 4, 2021

    The Supreme Court will hear oral argument

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