United States of America v. Otto D. Taylor

Atlanta, GA - Criminal defense lawyer represented defendant with a selling crack and powder cocaine charges.

As with all cases involving § 404 of the First Step Act, the events giving rise

to this appeal began a long time ago. In 2001, a grand jury indicted Otto Taylor for

one count of conspiracy to possess with intent to distribute controlled substances.

The grand jury charged that the conspiracy involved at least 5 kilograms of a

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mixture containing a detectable amount of cocaine hydrochloride (powder cocaine)

as well as at least 50 grams of a mixture containing a detectable amount of cocaine

base (crack cocaine), all in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii), and

841(b)(1)(A)(iii).

Roughly two years later, Taylor pleaded guilty to the conspiracy charge.

After the district court recited that the conspiracy involved at least 5 kilograms of

powder cocaine and at least 50 grams of crack, both the government's and Taylor's

lawyers agreed, without saying anything more, that the statutory range of

imprisonment for the pleaded offense was ten years to life. And the lawyers were

correct. At the time, § 841(b) provided that an offense involving either 50 grams

or more of crack or 5 kilograms or more of powder cocaine carried a mandatory

minimum of ten years' imprisonment and a maximum of life in prison. 21 U.S.C.

§ 841(b)(1)(A)(ii)–(iii) (2000). The district court accepted Taylor's plea and

adjudged him guilty as charged.

At the sentencing hearing, the district court found that Taylor's conspiracy

involved more than 1.5 kilograms of crack cocaine or 150 kilograms of powder

cocaine. Based on that finding and Taylor's criminal history, the court calculated

that Taylor's Sentencing Guidelines sentence was life in prison. The district court

expressed reservations about whether a life sentence was appropriate under the

circumstances, but it reluctantly applied the Guidelines as mandatory. Taylor was

therefore sentenced to life in prison.

But that sentence was short-lived. On direct appeal, we found that Taylor

had shown plain error under United States v. Booker, 543 U.S. 220 (2005), because

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the district court applied sentence enhancements under the then-mandatory

Sentencing Guidelines despite its evident disagreement with the resulting life

sentence. United States v. Taylor, 135 Fed. App'x 387, 390 (11th Cir. 2005). We

vacated Taylor's judgment and remanded for resentencing, and on remand, the

district court resentenced Taylor to 360 months' imprisonment.

That was 2005. Five years later, Congress enacted the Fair Sentencing Act

to reduce the sentencing disparity between drug-trafficking crimes involving crack

cocaine and those involving powder cocaine. See Dorsey v. United States, 567

U.S. 260, 268–69 (2012). While the drug-quantity provisions for offenses

involving powder cocaine remained the same, the Fair Sentencing Act increased

the quantity of crack cocaine required to trigger a five-year mandatory minimum

sentence from 5 grams to 28 grams and increased the quantity of crack required to

trigger a ten-year mandatory minimum from 50 grams to 280 grams. Fair

Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372 (codified

as amended at 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii)). By way of example, a

defendant sentenced after the Act took effect whose drug-trafficking offense

involved 50 grams of crack cocaine faced a penalty of 5 to 40 years' imprisonment

rather than the sentence of 10 years to life triggered by the same quantity of crack

cocaine before the Act. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2012), with 21

U.S.C. § 841(b)(1)(A)(iii) (2006). What the Fair Sentencing Act did not do was

make those modifications retroactive.

Enter the First Step Act. Section 404 of that Act, passed in 2018, gives

district courts the authority to apply the sentencing reforms of the Fair Sentencing

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Act retroactively to prisoners who were sentenced for certain crack-cocaine

offenses before the Fair Sentencing Act took effect. Specifically, the First Step

Act allows—but does not require—courts to reduce an eligible prisoner's sentence

as if the drug-quantity changes in the Fair Sentencing Act were in effect at the time

the prisoner committed his offense. See First Step Act of 2018, Pub. L. No. 115-

391, § 404, 132 Stat. 5194, 5222 (codified at 21 U.S.C. § 841 note).

So it was back to court for Taylor. In April 2019, he filed a motion for a

plenary resentencing hearing under the First Step Act. The district court denied the

motion, finding that Taylor's offense was not a "covered offense” under the Act

because it involved, in addition to crack cocaine, 5 kilograms or more of powder

cocaine, "which remains a sufficient quantity to trigger the mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(A).” Taylor now appeals.

II.

We review whether the district court had the authority to reduce Taylor's

sentence under the First Step Act de novo. United States v. Jones, 962 F.3d 1290,

1296 (11th Cir. 2020).

III.

Determining whether a prisoner is eligible for relief under the First Step Act

is a question of statutory interpretation. We begin, as always, with the text.

Section 404(b) authorizes district courts to reduce a prisoner's sentence if the

sentence was imposed for a "covered offense.” The Act defines 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.” First Step Act

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§ 404(a). A "covered offense” also must have been committed before the Fair

Sentencing Act became effective on August 3, 2010. Id.

We recently made some headway in interpreting these statutory provisions

in United States v. Jones, 962 F.3d 1290 (11th Cir. 2020). In Jones, we considered

the appeals of four prisoners serving time for federal drug-trafficking crimes, each

of whom had unsuccessfully moved for sentence reductions under § 404 of the

First Step Act. We began by examining the statutory definition of a "covered

offense” to decide whether the movants were eligible for relief. We explained that

the term "covered offense” refers to an offense in the general sense—that is,

generic conduct meeting each of the elements of a crime as it is defined by statute.

Jones, 962 F.3d at 1301 ("Offenses are made up of elements.”). The "elements” of

a federal drug-trafficking crime may include one or more of the drug quantities

listed in the statute that sets out the penalties for such crimes.

1

See 21 U.S.C.

§ 841(b)(1)(A)–(B). By increasing the quantity of crack cocaine required to trigger

the five-year and ten-year mandatory minimum sentences, § 2 of the Fair

Sentencing Act "modified the statutory penalties for crack-cocaine offenses that

have as an element the quantity of crack cocaine provided in subsections

841(b)(1)(A)(iii) and (B)(iii).” Jones, 962 F.3d at 1298. We concluded that all of

1 It is true that § 841(a) describes all the conduct necessary to commit a federal drug-trafficking

crime without reference to the quantity of controlled substance involved in the offense, and § 846

similarly describes the core elements of a drug conspiracy offense. But where the weight of the

controlled substance involved triggers the higher penalties in § 841(b)(1)(A) or (B), the

triggering drug quantity effectively becomes an element of the offense. See United States v.

Curbelo, 726 F.3d 1260, 1269 (11th Cir. 2013); see also Apprendi v. New Jersey, 530 U.S. 466,

501 (2000) (Thomas, J., concurring) (If "the legislature defines some core crime and then

provides for increasing the punishment of that crime upon a finding of some aggravating fact,”

then "the core crime and the aggravating fact together constitute an aggravated crime,” and the

"aggravating fact is an element of the aggravated crime.”).

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the movants in Jones were sentenced for covered offenses under the First Step Act

because they were all sentenced for drug-trafficking offenses that included one of

the specified drug-quantity elements—that is, an offense for which § 2 of the Fair

Sentencing Act modified the statutory penalties. Id. at 1302–03.

We made clear in Jones that a defendant sentenced for a pre-2010 drugtrafficking conspiracy involving only crack cocaine has a "covered offense” if the

crack-cocaine element of his offense triggered the statutory penalties in

§ 841(b)(1)(A) or (B). Id. at 1301–02.2

And it is equally clear that a drugtrafficking offense involving only powder cocaine would not be a covered offense.

See id. at 1298, 1300. But what of a multidrug conspiracy offense like Taylor's?

Taylor was sentenced for conspiring to possess with intent to distribute at least 5

kilograms of powder cocaine and at least 50 grams of crack cocaine. That was the

offense charged in his indictment, admitted by his guilty plea, and recorded in his

judgment. At sentencing, the district court determined Taylor's statutory penalties

based on the quantities of both crack and powder cocaine involved in his offense.

Taylor's offense unquestionably included a crack-cocaine element that triggered

different penalties after the Fair Sentencing Act. See 21 U.S.C. § 841(b)(1)(A)(iii).

But it also included a powder-cocaine element that did not. See id.

§ 841(b)(1)(A)(ii).

2 Although the eponymous movant in Jones was charged with conspiring to traffick in both crack

cocaine and powder cocaine, the district court—acting before the Supreme Court recognized in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that such findings were the province of the

jury—determined Jones's statutory penalties under § 841(b)(1)(A) based on its factual findings

regarding crack cocaine only. See Jones, 962 F.3d at 1302.

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That brings us back to the question before us: whether the First Step Act's

definition of a "covered offense” covers a multidrug conspiracy offense that

includes both a crack-cocaine element and another drug-quantity element. We

hold that it does. To explain why, we review the statutes setting out the penalties

for these offenses.

Here, the relevant federal criminal statute is 21 U.S.C. § 846, which

prohibits conspiring or attempting to traffick in controlled substances. The

statutory penalties for these drug conspiracy crimes are found in § 841(b). That

section sets out several tiers of escalating punishments ranging from a fine to life

in prison, depending on the nature and quantity of the controlled substances

involved. See 21 U.S.C. § 841(b)(1)–(3). The highest penalties, including fiveand ten-year mandatory minimum sentences, are reserved for crimes involving

highly addictive drugs such as heroin, cocaine, and marijuana. See id.

§ 841(b)(1)(A)–(B).

A drug-trafficking conspiracy or substantive drug-trafficking crime

involving multiple controlled substances may include multiple drug-quantity

elements, which in turn may trigger different categories of punishment, or—as

here—may trigger the same penalties twice over. That is not to say that a

defendant convicted of a multidrug conspiracy is subject to multiple sentences;

participation in a single drug-trafficking conspiracy constitutes a single offense, for

which the defendant can receive only one sentence. See Braverman v. United

States, 317 U.S. 49, 54 (1942). But each drug-quantity element triggers

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corresponding statutory penalties, regardless of whether the offense includes one

drug-quantity element or several.

Returning to the statutory text, the First Step Act defines 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.” First Step Act § 404(a).

The government argues that Taylor's offense does not meet this definition because

the powder-cocaine element of his offense would still trigger the same statutory

sentencing range of ten years to life after the Fair Sentencing Act. This argument

overlooks the fact that the "statutory penalties for” a drug-trafficking offense

include all the penalties triggered by every drug-quantity element of the offense,

not just the highest tier of penalties triggered by any one drug-quantity element.

We recognize that the distinction is subtle. But it follows from the text,

which authorizes a sentence reduction for any movant who was sentenced for a

covered offense. Again, an "offense” in this context is a set of statutory elements

defining a crime. By conditioning eligibility on the movant's offense, rather than

on his actual conduct or the applicable sentencing range, the First Step Act casts a

wide net at the eligibility stage.

In Jones, this meant that a movant who conspired to distribute 75 kilograms

of crack cocaine—a quantity more than sufficient to trigger the highest penalties

under § 841(b)(1)(A) both before and after the Fair Sentencing Act—was eligible

for relief as an initial matter because his offense was a violation of the federal drug

conspiracy statute with a drug-quantity element of 50 grams or more of crack

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cocaine.3

Jones, 962 F.3d at 1293, 1302. The statutory penalties for an offense

with that element were modified by the Fair Sentencing Act, so the movant had a

covered offense even though the same offense conduct, if charged today, would

also satisfy the new drug-quantity element (280 grams of crack cocaine) and

subject him to the same statutory sentencing range. Id. at 1302.

Along the same lines, a movant who engaged in a conspiracy to distribute,

say, 100 kilograms of powder cocaine and 10 grams of crack cocaine would be

subject to the highest tier of penalties in the drug-trafficking statute based solely on

the quantity of powder cocaine involved in the conspiracy. But the statutory

penalties for his offense also include the penalties triggered by the crack-cocaine

element of the offense, regardless of whether those are the penalties that actually

apply at sentencing. Before the Fair Sentencing Act, the crack-cocaine element (5

or more grams of crack cocaine) of this hypothetical offense triggered the

intermediate category of penalties; after the Fair Sentencing Act, that same crackcocaine element triggers the lowest tier of penalties for cocaine-related offenses.

Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2006), with 21 U.S.C. § 841(b)(1)(B)–(C)

(2012). So the "statutory penalties for” an offense involving one of the crackcocaine drug-quantity elements previously specified in the federal drug-trafficking

statute "were modified by” § 2 of the Fair Sentencing Act, even if the movant

3 The reason Jones ultimately did not get the relief he sought was that he did not preserve the

right argument. He contended not that his conviction should count as a covered offense as a

general matter, but that the judge's pre-Apprendi 75-kilogram finding should be set aside so that

he could be resentenced without a statutory minimum based on the charge to the jury, which was

that any amount of crack at all was sufficient for a guilty verdict. See Jones, 962 F.3d at 1304.

His case was not remanded because he never argued that he would have a covered offense even

if we accepted the judge's 75-kilogram drug quantity finding. See id. at 1304, 1305.

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ultimately would be subject to the same statutory sentencing range as a

consequence of another drug-quantity element of the offense.

Taylor's offense was conspiring to possess with intent to distribute at least 5

kilograms of powder cocaine and at least 50 grams of crack cocaine. Before the

Fair Sentencing Act, those drug quantities satisfied the drug-quantity elements in

§ 841(b)(1)(A)(ii) (powder cocaine) and (A)(iii) (crack cocaine), both of which

triggered the highest tier of penalties, including a sentence of imprisonment for ten

years to life. After the Fair Sentencing Act, the powder-cocaine element of the

offense triggered the same ten-to-life penalty, but the crack-cocaine element

triggered a different, lower category of penalties. Taylor's offense was "a

violation of a Federal criminal statute, the statutory penalties for which were

modified by section 2” of the Fair Sentencing Act, and he committed his offense

before the Fair Sentencing Act became effective. That means his offense is a

covered offense. First Step Act § 404(a). And the First Step Act gives a movant

like Taylor who was sentenced for a covered offense the opportunity to make his

case for a reduction in his sentence.

Of course, any sentence reduction would have to be made "as if sections 2

and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense

was committed.” Id. § 404(b). As we explained in Jones, this "as if” clause means

that (1) a movant who was sentenced to the lowest statutory penalty available to

him under the Fair Sentencing Act cannot receive any further reduction in his

sentence under the First Step Act, and (2) any drug-quantity finding that could

have been used to determine the movant's statutory penalties at the time of his

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original sentencing is binding on the district court. Jones, 962 F.3d at 1303–04. In

Taylor's case, the "as if” clause does not forbid a sentence reduction if the district

court decides that one is warranted.

IV.

Our conclusion that Taylor is eligible for a sentence reduction under the

First Step Act brings us to Taylor's argument about the kind of proceedings the

Act requires. In the district court, Taylor argued that he was entitled to a full

resentencing hearing, with the benefit of all the changes in the law since his

original sentencing in 2001. At oral argument, he acknowledged that we have

resolved this issue against him during the pendency of his appeal. For the sake of

completeness, we reiterate that "the First Step Act does not authorize the district

court to conduct a plenary or de novo resentencing.” United States v. Denson, 963

F.3d 1080, 1089 (11th Cir. 2020). The authority to reduce Taylor's sentence "as if

sections 2 and 3 of the Fair Sentencing Act” were in effect when Taylor committed

his offense does not permit the court to reduce Taylor's "sentence on the covered

offense based on changes in the law beyond those mandated by” those sections.

Id. Indeed, the First Step Act does not require the district court to hold a hearing at

all before deciding whether and to what extent to reduce Taylor's sentence under

the Act. Id. at 1087.

And we emphasize that the fact that Taylor is eligible for a sentence

reduction under the First Step Act does not mean that he is entitled to one. First

Step Act § 404(c). "District courts have wide latitude to determine whether and

how to exercise their discretion in this context.” Jones, 962 F.3d at 1304. On

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remand, it is fair game for the district court to consider any information relevant to

its decision, including its previous findings regarding the quantities of crack and

powder cocaine involved in the conspiracy, and the fact that the powder cocaine

element of Taylor's offense still triggers the highest tier of statutory penalties. See

id. at 1301–02, 1304.

Taylor’s drug-trafficking conspiracy involved significant amounts of both

crack and powder cocaine, each of which triggered the most severe penalties in the

drug-trafficking statute at the time he was sentenced. By effectively reducing the

penalties triggered by the crack-cocaine element of Taylor’s offense, the Fair

Sentencing Act modified the statutory penalties for his offense as a whole. His

offense is therefore a “covered offense” as that term is defined in § 404 of the First Step Act, and the district court was authorized—but not required—to reduce

Taylor’s sentence as provided in the Act. Because the district court erred in

determining that Taylor was not eligible for First Step Act relief, we vacate the

court’s order and remand for further proceedings consistent with this opinion.