1 F.4th 1206
10th Cir.2021Background
- In 2007 Broadway was found with 487.82 grams of crack, pleaded guilty to possession with intent to distribute "50 grams or more" (21 U.S.C. § 841(b)(1)(A)), and stipulated to the 487.82g quantity. He was sentenced as a career offender to 262 months.
- The Fair Sentencing Act (2010) raised crack thresholds (50→280 g for highest tier; 5→28 g for intermediate tier), but was not initially retroactive.
- The First Step Act (2018) §404 made the Fair Sentencing Act’s changes retroactive and authorized district courts to "impose a reduced sentence as if" the Fair Sentencing Act were in effect when the offense was committed.
- Broadway moved under §404 seeking reduction to 188 months, arguing his offense-of-conviction (50 g+) would map to the lower post‑Fair Sentencing Act statutory tier and produce a lower guidelines range and career‑offender base level.
- The district court denied relief, reasoning Broadway’s underlying conduct (487.82 g) would still trigger the highest statutory tier post‑Fair Sentencing Act, so his statutory penalty and guidelines range would be unchanged.
- The Tenth Circuit reversed: before exercising discretion under §404(b), a district court must determine the effect of the Fair Sentencing Act by looking to the minimum drug quantity tied to the offense of conviction (i.e., the quantity the defendant was convicted of), not the defendant’s broader underlying conduct; the court may then exercise discretion and consider §3553(a) factors (including underlying conduct) in deciding whether to reduce the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper measure for applying First Step Act §404(b): offense‑of‑conviction quantity vs. underlying conduct | Broadway: §404(b) requires using the offense of conviction (minimum quantity charged/stipulated) so the Fair Sentencing Act should be applied to that quantity | Government/district court: court should consider actual underlying conduct (487.82 g); if that meets post‑FSA thresholds, relief is unwarranted | Use the minimum drug quantity associated with the offense of conviction to determine how §404(b) applies; underlying conduct remains relevant to discretionary §3553(a) analysis |
| Whether district court erred in Broadway’s denial | Broadway: district court erred by relying on underlying conduct and failing to start from the offense of conviction, which would lower his statutory tier and guidelines | District court: even under a retroactive Fair Sentencing Act, Broadway’s 487.82 g would still trigger the highest tier, so no change | Reversed and remanded because district court applied wrong legal test (used underlying conduct rather than offense of conviction) |
| Role of §3553(a) and discretion after §404(b) inquiry | Broadway: after recalculation he is entitled to reconsideration; sentencing factors support reduction | Government: even if recalculation lowers guidelines, district court may deny reduction based on §3553(a) and disparity concerns | After applying §404(b) using offense‑of‑conviction quantity, district court may exercise discretion and consider §3553(a), including underlying conduct, in deciding whether to reduce the sentence |
Key Cases Cited
- United States v. Crooks, 997 F.3d 1273 (10th Cir. 2021) (First Step Act eligibility and application principles)
- United States v. Brown, 974 F.3d 1137 (10th Cir. 2020) (context on Fair Sentencing Act and retroactivity issues)
- Dorsey v. United States, 567 U.S. 260 (2012) (treatment of Fair Sentencing Act timing and sentenced defendants)
- United States v. Mannie, 971 F.3d 1145 (10th Cir. 2020) (§3553(a) factors are permissible considerations in First Step Act motions)
- United States v. Jackson, 964 F.3d 197 (3d Cir. 2020) (endorsing minimum drug quantity as salient for §404(b) purposes)
- United States v. Pacheco, 884 F.3d 1031 (10th Cir. 2018) (preponderance standard for drug‑quantity findings affecting Guidelines)