Terry v. United States

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TERRY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 20–5904. Argued May 4, 2021—Decided June 14, 2021
Petitioner Tarahrick Terry contends that he is eligible to receive a sen-
tence reduction for his 2008 crack cocaine conviction. In 1986, Con-
gress established mandatory-minimum penalties for certain drug of-
fenses. That legislation defined three relevant penalties for possession
with intent to distribute cocaine. The first two carried mandatory min-
imum sentences based on drug quantity: a 5-year mandatory mini-
mum (triggered by either 5 grams of crack cocaine or 500 grams of
powder cocaine) and a 10-year mandatory minimum (triggered by ei-
ther 50 grams of crack or 5 kilograms of powder). 100 Stat. 3207–2,
3207–3. The third penalty differed from the first two: it did not carry
a mandatory minimum sentence, did not treat crack and powder co-
caine offenses differently, and did not depend on drug quantity. Id., at
3207–4. Petitioner was subjected to this third penalty when he
pleaded guilty in 2008 to possession with intent to distribute an un-
specified amount of crack. The District Court determined that his of-
fense involved about 4 grams of crack.
Two years later, Congress passed the Fair Sentencing Act of 2010, which
increased the crack quantity thresholds from 5 grams to 28 for the 5-
year mandatory minimum and from 50 grams to 280 for the 10-year
mandatory minimum. §2(a), 124 Stat. 2372. But Congress did not
make this change retroactive until 2018, when it enacted the First Step
Act. After that, Petitioner sought resentencing on the ground that he
was convicted of a crack offense modified by the Fair Sentencing Act.
The District Court denied his motion, and the Eleventh Circuit af-
firmed.
Held: A crack offender is eligible for a sentence reduction under the First
Step Act only if convicted of a crack offense that triggered a mandatory
minimum sentence. The First Step Act makes an offender eligible for
2 TERRY v. UNITED STATES
Syllabus
a sentence reduction only if the offender previously received “a sen-
tence for a covered offense.” §404(b), 132 Stat. 5222. The Act defines
“ ‘covered offense’ ” as “a violation of a Federal criminal statute, the
statutory penalties for which were modified by” certain provisions in
the Fair Sentencing Act. §404(a), ibid. The Fair Sentencing Act mod-
ified the statutory penalties for offenses that triggered mandatory
minimum penalties because a person charged with the same conduct
today no longer would face the same statutory penalties that they
would have faced before 2010. For example, a person charged with
knowing or intentional possession with intent to distribute at least 50
grams of crack was subject to a 10-year mandatory minimum before
2010. Now, he would be subject only to a 5-year mandatory minimum.
But the Fair Sentencing Act did not modify the statutory penalties for
petitioner’s offense. Before 2010, a person charged with petitioner’s
offense—knowing or intentional possession with intent to distribute
an unspecified amount of a schedule I or II drug—was subject to stat-
utory penalties of imprisonment of 0-to-20 years and up to a $1 million
fine, or both, and a period of supervised release. After 2010, a person
charged with this conduct is subject to the exact same statutory pen-
alties. Petitioner thus is not eligible for a sentence reduction. Pp. 5–
8.
828 Fed. Appx. 563, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and BREYER, ALITO, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ.,
joined. SOTOMAYOR, J., filed an opinion concurring in part and concurring
in the judgment.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
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SUPREME COURT OF THE UNITED STATES
_________________
No. 20– 5904
_________________
TARAHRICK TERRY, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 14, 2021]
JUSTICE THOMAS delivered the opinion of the Court.
In 1986, Congress established mandatory-minimum pen-
alties for cocaine offenses. If the quantity of cocaine in-
volved in an offense exceeded a minimum threshold, then
courts were required to impose a heightened sentence. Con-
gress set the quantity thresholds far lower for crack of-
fenses than for powder offenses. But it has since narrowed
the gap by increasing the thresholds for crack offenses more
than fivefold. The First Step Act of 2018, Pub. L. 115–391,
132 Stat. 5194, makes those changes retroactive and gives
certain crack offenders an opportunity to receive a reduced
sentence. The question here is whether crack offenders who
did not trigger a mandatory minimum qualify. They do not.
I
In the mid-1980s, the United States witnessed a steep
surge in the use of crack cocaine, and news of high-profile,
cocaine-related deaths permeated the media. Witnesses be-
fore Congress, and Members of Congress themselves, be-
lieved that a “crack epidemic” was also fueling a crime
wave. Crack, they said, was far more addictive and danger-
ous than powder cocaine; it was cheaper and thus easier to
2 TERRY v. UNITED STATES
Opinion of the Court
obtain; and these and other factors spurred violent crime.1
In response to these concerns, Congress quickly passed a
bill with near unanimity.2 The new law created mandatory-
minimum penalties for various drug offenses, and it set
much lower trigger thresholds for crack offenses. The Act
included two base penalties that depended on drug quan-
tity: a 5-year mandatory minimum (triggered by 5 grams of
crack or 500 grams of powder) and a 10-year mandatory
minimum (triggered by 50 grams of crack or 5 kilograms of
powder). 100 Stat. 3207–2, 3207–3. The Act also created a
third penalty—possession with intent to distribute an un-
specified amount of a schedule I or II drug—that did not
treat crack and powder offenses differently, did not depend
on drug quantity, and did not include a mandatory mini-
mum. Id., at 3207–4.
Petitioner was convicted under this Act and subjected to
——————
1 United States Sentencing Commission, Report to the Congress: Co-
caine and Federal Sentencing Policy 5–6, 9–10, and n. 31 (May 2002);
“Crack” Cocaine, Hearing before the Permanent Subcommittee on Inves-
tigations of the Senate Committee on Governmental Affairs, 99th Cong.,
2d Sess., 2, 5–6, 10, 94 (1986).
2 The Act passed the Democratic-controlled House, where it was intro-
duced, 392 to 16. H. R. 5484, 99th Cong., 2d Sess. (1986); 132 Cong. Rec.
23003–23004 (1986). It passed the Republican-controlled Senate 97 to 2.
Id., at 27251–27252. A majority of the Congressional Black Caucus co-
sponsored and voted for the bill. Compare id., at 23003, with Hearing
before the Congressional Black Caucus, “Brain Trust on Aging” and the
House Select Committee on Aging, 99th Cong., 1st Sess., iii (1985). Many
black leaders in that era professed two concerns. First, crack was fueling
crime against residents in inner cities, who were predominantly black.
For example, the president of an NAACP chapter in the D. C. region
called crack “ ‘the worst thing to hit us since slavery,’ ” a sentiment ech-
oed by the leading black newspaper in Los Angeles. J. Forman, Jr., Lock-
ing Up Our Own 158 (2017). Second, there were concerns that prosecu-
tors were not taking these kinds of crimes seriously enough because the
victims were disproportionately black. In the words of John Ray, a D. C.
councilmember who spearheaded a successful effort to create mandatory
minimum penalties: “ ‘Black crimes against blacks get very low sen-
tences,’ ” unlike crimes against whites. Id., at 132.
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
the third penalty. In exchange for the Government drop-
ping two firearm charges, petitioner pleaded guilty in 2008
to possession with intent to distribute an unspecified
amount of crack. At sentencing, the District Court deter-
mined that his offense involved about 4 grams of crack, a
schedule II drug. See 21 U. S. C. §812; 21 CFR §1308.12(2006). It also determined that petitioner was a career of-
fender under the Sentencing Guidelines. United States
Sentencing Commission, Guidelines Manual §4B1.1(b)
(Nov. 2008) (USSG). The career-offender Guidelines con-
trolled because they recommended a higher sentence than
the drug-quantity Guidelines. Ibid. The District Court sen-
tenced petitioner to 188 months, the bottom of the career-
offender Guidelines range.
All this occurred while Congress was considering
whether to change the quantity thresholds for crack penal-
ties. In 1995, the Sentencing Commission issued a report
to Congress stating that it thought the 100-to-1 ratio was
too high. In particular, it stressed that the then-mandatory
Guidelines helped make the ratio excessive because the
Guidelines, which were not yet in effect when Congress cre-
ated the ratio, addressed some of Congress’ concerns about
crack. Addressing those concerns through both the ratio
and the Guidelines, the Commission said, “doubly pun-
ished” offenders. United States Sentencing Commission,
Special Report to the Congress: Cocaine and Federal Sen-
tencing Policy 195–197 (Feb. 1995). Separately, although
the Commission thought that it was reasonable to conclude
that “crack cocaine poses greater harms to society than does
powder cocaine,” it determined that the ratio overstated the
difference in harm. Ibid. Finally, the Commission noted
that persons convicted of crack offenses were disproportion-
ately black, so a ratio that was too high created a “percep-
tion of unfairness” even though there was no reason to be-
lieve “that racial bias or animus undergirded the initiation
4 TERRY v. UNITED STATES
Opinion of the Court
of this federal sentencing law.” Id., at 153–154, 192. Mem-
bers of Congress responded to this and similar reports. For
example, Senators Sessions and Hatch introduced legisla-
tion in 2001 to lower the ratio to 20 to 1. S. 1874, 107th
Cong., 1st Sess. Representative Jackson-Lee led a similar
effort in the House, but would have created a 1-to-1 ratio.
H. R. 4545, 110th Cong., 1st Sess. (2007).
Two years after petitioner was sentenced, these attempts
to change the ratio came to fruition. In the Fair Sentencing
Act of 2010, 124 Stat. 2372, note following 21 U. S. C. 801,
Congress reaffirmed its view that the triggering thresholds
should be lower for crack offenses, but it reduced the 100-
to-1 ratio to about 18 to 1. It did so by increasing the crack
quantity thresholds from 5 grams to 28 for the 5-year man-
datory minimum and from 50 grams to 280 for the 10-year
mandatory minimum. §2(a), 124 Stat. 2372. These changes
did not apply to those who had been sentenced before 2010.
The Sentencing Commission then altered the drug quan-
tity table used to calculate Guidelines ranges. USSG
§2D1.1(c). The Commission decreased the recommended
sentence for crack offenders to track the statutory change
Congress made. It then made the change retroactive, giv-
ing previous offenders an opportunity for resentencing.
Courts were still constrained, however, by the statutory
minimums in place before 2010. Many offenders thus re-
mained sentenced to terms above what the Guidelines rec-
ommended. Congress addressed this issue in 2018 by en-
acting the First Step Act. This law made the 2010 statutory
changes retroactive and gave courts authority to reduce the
sentences of certain crack offenders.
Petitioner initially sought resentencing under the new,
retroactive Guidelines. But because his sentence was based
on his recidivism, not his drug quantity, his attempt was
unsuccessful. After Congress enacted the First Step Act,
petitioner again sought resentencing, this time contending
that he falls within the category of crack offenders covered
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
by that Act. The District Court denied his motion, and the
Eleventh Circuit affirmed, holding that offenders are eligi-
ble for a sentence reduction only if they were convicted of a
crack offense that triggered a mandatory minimum. 828
Fed. Appx. 563 (2020) (per curiam). We granted certiorari.
592 U. S. ___ (2021).
On the day the Government’s brief was due, the United
States informed the Court that, after the change in admin-
istration, it would no longer defend the judgment. Because
of the timeline, the Court rescheduled argument, com-
pressed the briefing schedule, and appointed Adam K. Mor-
tara as amicus curiae to argue in support of the judgment.
He has ably discharged his responsibilities.
II
An offender is eligible for a sentence reduction under the
First Step Act only if he previously received “a sentence for
a covered offense.” §404(b), 132 Stat. 5222. The Act defines
“ ‘covered offense’ ” as “a violation of a Federal criminal stat-
ute, the statutory penalties for which were modified by” cer-
tain provisions in the Fair Sentencing Act. §404(a), ibid.
Here, “statutory penalties” references the entire, integrated
phrase “a violation of a Federal criminal statute.” United
States v. Jones, 962 F. 3d 1290, 1298 (CA11 2020). And that
phrase means “offense.” Black’s Law Dictionary 1300 (11th
ed. 2019) (“A violation of the law”). We thus ask whether
the Fair Sentencing Act modified the statutory penalties for
petitioner’s offense. It did not.
The elements of petitioner’s offense are presented by two
subsections of 21 U. S. C. §841. Subsection (a) makes it un-
lawful to knowingly or intentionally possess with intent to
distribute any controlled substance. Subsection (b) lists ad-
ditional facts that, if proved, trigger penalties.
Before 2010, §§841(a) and (b) together defined three crack
offenses relevant here. The elements of the first offense
were (1) knowing or intentional possession with intent to
6 TERRY v. UNITED STATES
Opinion of the Court
distribute, (2) crack, of (3) at least 50 grams. §§841(a),
(b)(1)(A)(iii). This subparagraph (A) offense was punisha-
ble by 10 years to life, in addition to financial penalties and
supervised release. The elements of the second offense
were (1) knowing or intentional possession with intent to
distribute, (2) crack, of (3) at least 5 grams. §§841(a),
(b)(1)(B)(iii). This subparagraph (B) offense was punisha-
ble by 5-to-40 years, in addition to financial penalties and
supervised release. And the elements of the third offense
were (1) knowing or intentional possession with intent to
distribute, (2) some unspecified amount of a schedule I or II
drug. §§841(a), (b)(1)(C).
Petitioner was convicted of the third offense—subpara-
graph (C). Before 2010, the statutory penalties for that of-
fense were 0-to-20 years, up to a $1 million fine, or both,
and a period of supervised release.3 After 2010, these stat-
utory penalties remain exactly the same. The Fair Sentenc-
ing Act thus did not modify the statutory penalties for peti-
tioner’s offense.
Petitioner’s offense is starkly different from the offenses
that triggered mandatory minimums. The Fair Sentencing
Act plainly “modified” the “statutory penalties” for those. It
did so by increasing the triggering quantities from 50 grams
to 280 in subparagraph (A) and from 5 grams to 28 in sub-
paragraph (B). Before 2010, a person charged with the orig-
inal elements of subparagraph (A)—knowing or intentional
possession with intent to distribute at least 50 grams of
crack—faced a prison range of between 10 years and life.
——————
3 All three subparagraphs carried, and continue to carry, heightened
penalties if an offense caused death or serious bodily injury or if the de-
fendant was a repeat offender. Petitioner’s actual sentencing range un-
der subparagraph (C) was 0-to-30 years because he had a prior felony
drug offense. 828 Fed. Appx. 563, 565 (CA11 2020). Because these en-
hancements are identical before and after 2010, they make no difference
to the analysis. Petitioner’s enhancement for his prior conviction is thus
omitted from the body of the opinion for the sake of simplicity.
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
But because the Act increased the trigger quantity under
subparagraph (A) to 280 grams, a person charged with
those original elements after 2010 is now subject to the
more lenient prison range for subparagraph (B): 5-to-40
years. Similarly, the elements of an offense under subpar-
agraph (B) before 2010 were knowing or intentional posses-
sion with intent to distribute at least 5 grams of crack.
Originally punishable by 5-to-40 years, the offense defined
by those elements4 is now punishable by 0-to-20 years—
that is, the penalties under subparagraph (C). The statu-
tory penalties thus changed for all subparagraph (A) and
(B) offenders. But no statutory penalty changed for subpar-
agraph (C) offenders. That is hardly surprising because the
Fair Sentencing Act addressed “cocaine sentencing dispar-
ity,” §2, 124 Stat. 2372, and subparagraph (C) had never
differentiated between crack and powder offenses.
To avoid this straightforward result, petitioner and the
United States offer a sleight of hand. Petitioner says that
the phrase “statutory penalties” in fact means “penalty
statute.” The United States similarly asserts that peti-
tioner is eligible for a sentence reduction if the Fair Sen-
tencing Act changed the “penalty scheme.”
But we will not convert nouns to adjectives and vice
versa. As stated above, “statutory penalties” references the
entire phrase “a violation of a Federal criminal statute.” It
thus directs our focus to the statutory penalties for peti-
tioner’s offense, not the statute or statutory scheme.
Even if the “penalty statute” or “penalty scheme” were
the proper focus, neither was modified for subparagraph (C)
offenders. To “modify” means “to change moderately.” MCI
Telecommunications Corp. v. American Telephone & Tele-
graph Co., 512 U. S. 218, 225 (1994). The Fair Sentencing
——————
4 Of course, an indictment that charged a person with 5 grams of crack
now is no different from one charging the person with an unspecified
amount of crack. The usual practice is to ignore extraneous language in
an indictment. E.g., Ford v. United States, 273 U. S. 593, 602 (1927).
8 TERRY v. UNITED STATES
Opinion of the Court
Act changed nothing in subparagraph (C). The United
States notes that prosecutors before 2010 could charge of-
fenders under subparagraph (B) if the offense involved be-
tween 5 and 28 grams of crack; now, prosecutors can charge
those offenders only under subparagraph (C). But even be-
fore 2010, prosecutors could charge those offenders under
subparagraph (C) because quantity has never been an ele-
ment under that subparagraph. See, e.g., United States v.
Birt, 966 F. 3d 257, 259 (CA3 2020) (noting that an offender
charged under subparagraph (C) had possessed 186 grams
of crack). It also defies common parlance to say that alter-
ing a different provision modified subparagraph (C). If Con-
gress abolished the crime of possession with intent to dis-
tribute, prosecutors then would have to bring charges under
the lesser included offense of simple possession. But no-
body would say that abolishing the first offense changed the
second.
In light of the clear text, we hold that §2(a) of the Fair
Sentencing Act modified the statutory penalties only for
subparagraph (A) and (B) crack offenses—that is, the of-
fenses that triggered mandatory-minimum penalties. The
judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
Opinion of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20– 5904
_________________
TARAHRICK TERRY, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 14, 2021]
JUSTICE SOTOMAYOR, concurring in part and concurring
in the judgment.
I agree with the Court’s interpretation of the First Step
Act, join Part II of its opinion, and concur in the judgment.1
——————
1 I do not join Part I of the Court’s opinion because it includes an un-
necessary, incomplete, and sanitized history of the 100-to-1 ratio. The
full history is far less benign. The Court, ante, at 2, n. 2, emphasizes
Black leaders’ support for “tough-on-crime” policies, but ignores that
these leaders “also called for federal investment in longer-term, root-
cause solutions such as welfare, education, and job training programs.”
J. Forman, Locking Up Our Own 157 (2017) (Forman). But “[t]he help
never arrived,” leaving Black communities with “just the tough-on-crime
laws” and little else. Id., at 12. Nor does the Court mention that the
“ ‘careful deliberative practices of the Congress were set aside’ ” for the
1986 omnibus crime bill that included the 100-to-1 ratio, as part of a
“rush to pass dramatic drug legislation before the midterm elections.”
Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283,
1294, and n. 55 (1996) (Sklansky). Indeed, the “legislative history offers
no explanation for the selection of a ratio of 100:1,” save that it “was the
highest ratio proposed.” Id., at 1297. There is, by contrast, an extensive
record of race-based myths about crack cocaine that the media “branded
onto the public mind and the minds of legislators,” United States v. Clary,
846 F. Supp. 768, 783 (ED Mo. 1994), and that appear in the Congres-
sional Record, see Sklansky 1291–1295, and nn. 49–60. Most egre-
giously, the Court barely references the ratio’s real-world impact (dis-
cussed infra, at 3–4), and disregards the fact that, “as the racial effects
of mandatory minimums and the crack/cocaine disparity became appar-
ent, the [Congressional Black Caucus] came together in unanimous and
increasingly vocal opposition to the law.” Forman 205. Bills to mitigate
2 TERRY v. UNITED STATES
Opinion of SOTOMAYOR, J.
I write separately to clarify the consequences of today’s de-
cision. While the Fair Sentencing Act of 2010 and First
Step Act of 2018 brought us a long way toward eradicating
the vestiges of the 100-to-1 crack-to-powder disparity, some
people have been left behind.
Among them are people like petitioner Tarahrick Terry,
who was convicted under 21 U. S. C. §841(b)(1)(C) for pos-
sessing with intent to distribute a small amount of crack
cocaine and was sentenced as a career offender. If Terry
had been convicted under §841(b)(1)(A) or §841(b)(1)(B),
which require larger quantities of drugs, he would be eligi-
ble for resentencing under the First Step Act (even if sen-
tenced as a career offender). Similarly, despite being con-
victed under subparagraph (C), if Terry’s Sentencing
Guidelines range had been calculated like that of a non-
career offender, he would have been eligible for a sentence
reduction when the United States Sentencing Commission
retroactively reduced the amount of crack cocaine neces-
sary to trigger higher Guidelines ranges. But because
Terry was both convicted under subparagraph (C) and sen-
tenced as a career offender, he has never had a chance to
ask for a sentence that reflects today’s understanding of the
lesser severity of his crime. Absent action from the political
branches, he never will.
I
Section 841(b) provides three tiers of statutory “[p]enal-
ties” for federal drug offenses under §841(a). As a baseline,
§841(b)(1)(C) specifies a maximum penalty of 20 years im-
prisonment, with no mandatory minimum. Sections
841(b)(1)(A) and (B) then authorize enhanced penalty
ranges, including mandatory minimums, for those dealing
in higher quantities of narcotics.
——————
the disparity were introduced almost every year from 1993 to 2009. Yet
Congress did nothing until 2010.
Cite as: 593 U. S. ____ (2021) 3
Opinion of SOTOMAYOR, J.
As enacted in 1986, §841(b) created a 100-to-1 ratio be-
tween the amounts of powder and crack cocaine necessary
to trigger the mandatory minimums in §§841(b)(1)(A) and
(B). Subparagraph (A)’s 10-year minimum was triggered by
5,000 grams of powder cocaine (about the weight of a gallon
of paint), but only 50 grams of crack cocaine (about half a
stick of butter). Subparagraph (B)’s 5-year minimum re-
quired 500 grams of powder (heavier than a football) but
just five grams of crack (the weight of a nickel).
The United States Sentencing Commission (USSC) incor-
porated the 100-to-1 ratio into the Sentencing Guidelines.
The Guidelines include a “Drug Quantity Table,” which sets
“base offense level[s]” that correspond to various ranges of
weights for each drug type. USSC, Guidelines Manual
§2D1.1 (Nov. 2018) (USSG). A defendant’s base offense
level, together with his criminal history, determines the
“Guidelines range” of sentences. The more drugs possessed,
the higher the base offense level, and the higher the Guide-
lines range. Because the drug quantity tables are keyed to
the statutory minimums, selling a given weight of crack co-
caine would lead to the same base offense level as selling
100 times as much powder cocaine. Street-level crack deal-
ers could thus receive significantly longer sentences than
wholesale importers of powder cocaine.
Under the 1986 law, crack cocaine sentences were about
50 percent longer than those for powder cocaine. USSC,
Report to the Congress: Cocaine and Federal Sentencing
Policy 13 (May 2007) (2007 Report). Black people bore the
brunt of this disparity. Around 80 to 90 percent of those
convicted of crack offenses between 1992 and 2006 were
Black, while Black people made up only around 30 percent
of powder cocaine offenders in those same years. Id., at 16.
There was no meaningful policy justification for such un-
equal sentences. The 100-to-1 ratio “rested on assumptions
about the relative harmfulness of the two drugs and the rel-
ative prevalence of certain harmful conduct associated with
4 TERRY v. UNITED STATES
Opinion of SOTOMAYOR, J.
their use and distribution that . . . research and data no
longer support.” Kimbrough v. United States, 552 U. S. 85,
97 (2007) (internal quotation marks omitted). This was ob-
vious to the public, which came “to understand sentences
embodying the 100-to-1 ratio as reflecting unjustified race-
based differences.” Dorsey v. United States, 567 U. S. 260,
268 (2012).
The Sentencing Commission published detailed reports
in 1995, 1997, 2002, and 2007 asking Congress to reduce
the disparity, which it found to be unjustified standing
alone, and particularly unjustified in light of its disparate
impact. See Kimbrough, 552 U. S., at 97–100. Each report
“unanimously and strongly urge[d] Congress to act
promptly” to “[i]ncrease the five-year and ten-year statu-
tory mandatory minimum threshold quantities for crack co-
caine offenses.” 2007 Report 8.
II
Congress eventually responded with the Fair Sentencing
Act of 2010. 124 Stat. 2372. Section 2 of the Act increased
the amounts of crack cocaine necessary to trigger minimum
sentences, reducing the crack-to-powder ratio to 18 to 1.
§2(a), ibid. The Sentencing Commission, in turn, quickly
revised the drug quantity tables to reflect that new ratio.
USSG App. C, Amdt. 748 (Nov. 2010). It later made those
amendments retroactive, thus making reduced sentences
available to thousands of crack offenders who were serving
prison sentences based on unduly high Guidelines ranges.
USSG App. C, Amdt. 759 (Nov. 2011).
These amendments, however, had two principal short-
comings. First, the Fair Sentencing Act’s changes to the
mandatory minimums were not retroactive. Even if an of-
fender’s new Guidelines range was below the applicable
minimum, the court could go no lower. Second, not all of-
fenders could move for reduced sentences. Such motions
are available only to individuals whose original sentences
Cite as: 593 U. S. ____ (2021) 5
Opinion of SOTOMAYOR, J.
were “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.” 18 U. S. C.
§3582(c)(2). Offenders whose Guidelines ranges were not
based on the drug quantity tables were ineligible, even if
the 100-to-1 ratio clearly affected their actual sentence.
Take so-called “career offenders” like Terry. A defendant
is a career offender if he commits a felony “controlled sub-
stance offense” or “crime of violence” when he is over 18 and
when he already has two prior such felony convictions.
USSG §4B1.1(a). The offense level for career offenders is
based on the statutory maximum for their crime of convic-
tion, not the drug quantity tables. USSG §4B1.1(b).
Terry possessed just 3.9 grams of crack. His Guidelines
range would normally have been about three to four years.
But Terry was sentenced as a career offender because of two
prior drug convictions committed when he was a teenager
and for which he spent a total of only 120 days in jail. That
enhancement caused Terry’s Guidelines range to skyrocket
to about 15 to 20 years. He received a sentence of 188
months (at the bottom of the Guidelines range). Because
the Fair Sentencing Act and the following Guidelines
amendments did not change their Guidelines ranges, career
offenders like Terry were categorically ineligible for relief,
regardless of the severity or circumstances of their crimes.
Career offenders were not, however, free from the harsh
effects of the 100-to-1 ratio. Prior to applying the career
offender enhancement, district courts still calculated the of-
fender’s base offense level using the drug quantity tables.
That preenhancement base offense level is a significant in-
dicator of an offense’s gravity, and thus of the sentence it
merits. A career offender with a higher base offense level
closer to the statutory minimum would likely receive a
harsher punishment than one with a lower base offense
level further from the minimum.
In some cases, the 100-to-1 ratio played an even more di-
6 TERRY v. UNITED STATES
Opinion of SOTOMAYOR, J.
rect role. Especially for less serious offenders, courts some-
times entirely departed from the career offender Guidelines
and instead sentenced defendants based on the more leni-
ent drug quantity tables.2 But offenders were only eligible
for sentence reductions if retroactive amendments changed
their Guidelines range as “determined before consideration
of any departure . . . or any variance.” USSG §1B1.10, com-
ment., n. 1(A). Hence, even career offenders whose sen-
tences were based expressly on the 100-to-1 ratio in the
drug quantity tables could not obtain reduced sentences
when that ratio was retroactively lowered.
The law’s assessment of these offenders’ culpability radi-
cally changed with the Fair Sentencing Act. For example,
Terry’s 3.9 grams of crack cocaine (less than the weight of
four paperclips) led to a preenhancement base offense level
of 20 and was just shy of the five grams that triggered a 5-
year mandatory minimum. He would have received the
same base offense level for selling 390 grams of powder co-
caine (about the weight of a full can of soda). After the
Guidelines amendments, those 3.9 grams are nowhere near
the 28 grams that now trigger the mandatory minimum,
and his preenhancement base offense level would be just
16, the same as for selling 70 grams of powder cocaine
(about the weight of two lightbulbs). His preenhancement
Guidelines range dropped from 41 to 51 months to 27 to 33
months. In short, the law now treats Terry’s offense as a
far less serious crime.
The career offender Guidelines, like all the Guidelines,
are merely advisory. See United States v. Booker, 543 U. S.
220, 246 (2005). Terry possessed a very small amount of
crack cocaine, and he was a teenager when he committed
the two prior drug offenses that made him a career offender.
——————
2 This practice was common enough to give rise to a split among the
Courts of Appeals over whether such offenders were eligible for sentence
reductions. See, e.g., United States v. Munn, 595 F. 3d 183, 194–195
(CA4 2010); United States v. Sharkey, 543 F. 3d 1236, 1239 (CA10 2008).
Cite as: 593 U. S. ____ (2021) 7
Opinion of SOTOMAYOR, J.
Free of the arbitrary influence of the 100-to-1 ratio, he
would be a much stronger candidate for a downward depar-
ture.
III
The First Step Act of 2018 partially filled the gaps left by
the Fair Sentencing Act. As the Court explains, everyone
with a pre-August 3, 2010, crack conviction under
§841(b)(1)(A) or §841(b)(1)(B), including career offenders,
has a “covered offense” and is eligible for resentencing. This
corrects the Fair Sentencing Act’s first shortcoming, as in-
dividuals who would not be subject to the same minimums
today can now seek resentencing without those floors.
But, as the Court also explains, no one convicted under
§841(b)(1)(C) has a covered offense. The First Step Act
therefore only partly addresses the Fair Sentencing Act’s
second shortcoming. While career offenders convicted un-
der subparagraph (A) or subparagraph (B) can now seek re-
sentencing, that door remains closed to career offenders
convicted under subparagraph (C).
This is no small injustice. Career offenders made up
more than half of the 2,387 defendants who obtained retro-
active sentence reductions in just the first year of the First
Step Act’s implementation. USSC, The First Step Act of
2018: One Year of Implementation 44 (Aug. 2020). In part
because there were so many career offenders who were pre-
viously ineligible, the average sentence reduction under the
First Step Act was almost six years. Id., at 43.
Between 2005 and 2010, around 15 percent of offenders
who possessed less than five grams of crack were sentenced
as career offenders. USSC, Report to Congress: Impact of
the Fair Sentencing Act of 2010, p. A–32 (Aug. 2015). In
courts that permitted their motions before today’s decision,
many such offenders obtained dramatically lower sentences
after the First Step Act. See App. to Reply Brief 1a–2a (col-
lecting cases). “Decisions like these, from courts that have
8 TERRY v. UNITED STATES
Opinion of SOTOMAYOR, J.
actually had to apply the statute, demonstrate that the Fair
Sentencing Act amendments have a meaningful effect on
the sentences that defendants receive under §841(b)—
including for defendants sentenced under subsection
(b)(1)(C)” as career offenders. Brief for Retired Federal
Judges et al. as Amici Curiae 15.
There is no apparent reason that career offenders sen-
tenced under subparagraph (C) should be left to serve out
sentences that were unduly influenced by the 100-to-1 ra-
tio. Indeed, the bipartisan lead sponsors of the First Step
Act have urged this Court to hold that the Act “makes ret-
roactive relief broadly available to all individuals sentenced
for crack-cocaine offenses before the Fair Sentencing Act.”
Brief for Sen. Richard Durbin et al. as Amici Curiae 11. Un-
fortunately, the text will not bear that reading. Fortu-
nately, Congress has numerous tools to right this injustice.