Congressional Record, Volume 168 Issue 183 (Tuesday, November 29, 2022)

[Congressional Record Volume 168, Number 183 (Tuesday, November 29, 2022)]
[House]
[Pages H8625-H8629]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

TERRY TECHNICAL CORRECTION ACT

Mr. NADLER. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 5455) to amend the First Step Act of 2018 to permit
defendants convicted of certain offenses to be eligible for reduced
sentences, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 5455

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Terry Technical Correction
Act''.

SEC. 2. APPLICATION OF FAIR SENTENCING ACT OF 2010.

Section 404 of the First Step Act of 2018 (21 U.S.C. 841
note) is amended--
(1) in subsection (a)--
(A) by striking `` `covered offense' means'' and inserting
the following:
`` `covered offense'--
``(1) means'';
(B) by striking the period at the end and inserting ``;
and''; and
(C) by adding at the end the following:
``(2) includes a violation, involving cocaine base, of--
``(A) section 3113 of title 5, United States Code;
``(B) section 401(b)(1)(C) of the Controlled Substances Act
(21 U.S.C. 841(b)(1)(C));
``(C) section 404(a) of the Controlled Substances Act (21
U.S.C. 844(a));
``(D) section 406 of the Controlled Substances Act (21
U.S.C. 846);
``(E) section 408 of the Controlled Substances Act (21
U.S.C. 848);
``(F) subsection (b) or (c) of section 409 of the
Controlled Substances Act (21 U.S.C. 849);
``(G) subsection (a) or (b) of section 418 of the
Controlled Substances Act (21 U.S.C. 859);
``(H) subsection (a), (b), or (c) of section 419 of the
Controlled Substances Act (21 U.S.C. 860);
``(I) section 420 of the Controlled Substances Act (21
U.S.C. 861);
``(J) section 1010(b)(3) of the Controlled Substances
Import and Export Act (21 U.S.C. 960(b)(3));
``(K) section 1010A of the Controlled Substances Import and
Export Act (21 U.S.C. 960a);
``(L) section 90103 of the Violent Crime Control and Law
Enforcement Act of 1994 (34 U.S.C. 12522);
``(M) section 70503 or 70506 of title 46, United States
Code; or
``(N) any attempt, conspiracy or solicitation to commit an
offense described in subparagraphs (A) through (M).''; and
(2) in subsection (c), by inserting ``A motion made under
this section that was denied after a court determination that
a violation described in subsection (a)(2) was not a covered
offense shall not be considered a denial after a complete
review of the motion on the merits within the meaning of this
section.'' after the period at the end of the second
sentence.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New
York (Mr. Nadler) and the gentleman from Wisconsin (Mr. Tiffany) each
will control 20 minutes.
The Chair recognizes the gentleman from New York.

General Leave

Mr. NADLER. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and to
include extraneous material on H.R. 5455.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 5455, which would clarify that
the retroactivity provision of section 404 of the First Step Act of
2018 is available to all offenders who were sentenced for a crack
offense before the Fair Sentencing Act of 2010 became effective,
including individuals convicted of offenses involving small quantities
of crack.
After decades of unfair sentences that swept too broadly, most often
applied to low-level dealers and impacted minorities
disproportionately, Congress has worked to right some of the wrongs of
the misguided war on drugs, often on a bipartisan basis. This
legislation continues that important effort.
In 1986, in response to a surge in the use of crack cocaine and
several high-profile cocaine-related deaths, Congress passed the Anti-
Drug Abuse Act, which created mandatory minimum penalties for drug
offenses and introduced a 100-1 sentencing disparity between crack
cocaine and powder cocaine offenses.
This meant that a person who distributed 5 grams of crack cocaine
received the same 5-year mandatory minimum sentence as a person who
distributed 500 grams of powder cocaine, and the person who distributed
50 grams of crack cocaine received the same 10-year mandatory minimum
sentence as the person who distributed 5,000 grams of powder cocaine.
It soon became evident that this sentencing disparity had also
created a significant racial disparity. Four years after Congress
passed the Anti-Drug Abuse Act, the average Federal sentence for
African-American defendants was 49 percent higher than the average for
White defendants.
In 2010, Congress passed the Fair Sentencing Act, which did not
eliminate the disparity but which significantly reduced the ratio from
100-1 to 18-1. Unfortunately, that legislation applied only to pending
and future cases, leaving thousands of inmates without a path to
petition for relief.
In 2018, the bipartisan First Step Act made the Fair Sentencing Act
retroactive if an inmate received ``a sentence for a covered offense,''
as defined in section 404 of the Act, providing a pathway to relief for
some but not all individuals affected by the sentencing disparity.
Three years later, after roughly 4,000 motions for sentence
reductions had been granted, the Supreme Court, in Terry v. United
States, limited the availability of sentence reductions under the Fair
Sentencing Act, contrary to the intent of Congress.
Based on a narrow reading of the meaning of ``covered offense,'' the
Court held that individuals convicted of crack offenses are only
eligible for a sentence reduction under the First Step Act if their
convictions triggered mandatory minimum penalties.
That means that individuals like Mr. Terry, who possessed less than 4
grams

[[Page H8626]]

of crack, are unable to seek sentence reductions, while individuals
convicted of sentences involving much larger quantities of crack can
seek a sentence reduction, and many have already done so, which is
simply absurd and unfair.
The First Step Act was meant to make retroactive sentencing relief
available to all individuals sentenced for crack cocaine offenses
before the Fair Sentencing Act of 2010 took effect.
As Justice Sotomayor's concurring opinion in Terry reminds us,
Congress has numerous tools to correct this injustice, and H.R. 5455,
the Terry Technical Correction Act, is one of these tools.
The bill provides a new, expanded definition of ``covered offense''
that includes a list of drug offenses in the criminal code that do not
trigger mandatory minimum sentences.
The bill also ensures that no person seeking a sentencing reduction
under section 404 will be barred from filing a new petition on the
grounds that a judge had previously denied relief based on a
determination that the offense of conviction was not a ``covered
offense'' under the meaning provided in the First Step Act.
I thank Crime Subcommittee Chairwoman Jackson Lee, Representatives
Cicilline, Jeffries, Owens, Massie, and Delegate Holmes Norton for
introducing this important bipartisan bill. I urge all of my colleagues
to support it, and I reserve the balance of my time.
Mr. TIFFANY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 5455 responds to a Supreme Court ruling that held
certain low-level drug offenders do not qualify for resentencing under
the retroactive provisions of the First Step Act. That was not
Congress' intent in adopting the First Step Act.
This problem dates back to the drug epidemic of the 1980s. At that
time, Congress enacted harsh penalties for Federal drug offenses,
including mandatory minimum sentences.
The Anti-Drug Abuse Act of 1986 created a 100-1 sentencing disparity
between crack and powder cocaine, meaning an individual convicted of
selling 5 grams of crack cocaine would receive the same sentence as
someone convicted of selling 500 grams of powder cocaine.
In 2010, Congress passed the Fair Sentencing Act, which reduced the
sentencing disparity between crack and powder from 100-1 to 18-1.
In 2018, Congress passed, and President Trump signed, the First Step
Act into law. The First Step Act made the sentencing disparity
provision retroactive, allowing individuals convicted of or sentenced
for Federal drug offenses related to cocaine to move for a
resentencing.
However, that law did not specifically address individuals whose
crimes did not trigger the mandatory minimums. As a result, some of
those individuals are serving longer sentences than those whose
offenses triggered the mandatory minimums. This legislation today makes
technical corrections and brings parity to crack-related offenses.
Mr. Speaker, I reserve the balance of my time.
Mr. NADLER. Mr. Speaker, I yield 4 minutes to the gentlewoman from
Texas (Ms. Jackson Lee), a member of the committee.
Ms. JACKSON LEE. Mr. Speaker, I thank the chairman of the full
committee, and I rise in strong support of H.R. 5455, the Terry
Technical Correction Act, which has widespread support from really the
people who count that deal with these issues day after day, our law
enforcement officers and attorneys general across America.
Mr. Speaker, I include for the Record a letter from several attorneys
general, as well as the Major Cities Chiefs Association.
September 2, 2021.
Hon. Chuck Schumer,
Senate Majority Leader,
U.S. Senate, Washington, DC.
Hon. Nancy Pelosi,
Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader,
U.S. Senate, Washington, DC.
Hon. Kevin McCarthy,
Washington, DC.
Dear Leader Schumer, Leader McConnell, Speaker Pelosi, and
Leader McCarthy: As our jurisdictions' Attorneys General, we
are responsible for protecting the health, safety, and well-
being of our residents. Although our jurisdictions vary in
size, geography, and political composition, we are united in
our commitment to an effective criminal justice system that
safeguards the communities of our states. To that end, a
bipartisan coalition of Attorneys General supported the
passage of the First Step Act of 2018--landmark legislation
that brought common sense improvements to myriad aspects of
the criminal justice system. Central to these reforms was
retroactive relief for individuals sentenced under the
discredited 100-to-1 crack-to-powder cocaine ratio that
Congress abolished in 2010. Following the Supreme Court's
recent opinion in Terry v. United States, however, the lowest
level crack cocaine offenders remain categorically ineligible
for resentencing. We write today to urge Congress to amend
the First Step Act, and to clarify that its retroactive
relief applies to all individuals sentenced under the prior
regime.
Congress enacted the historic First Step Act of 2018 to
modernize the criminal justice system, implementing
comprehensive reform in areas such as corrections, criminal
charging, community re-entry, and beyond. The product of a
unique bipartisan consensus, the Act passed with overwhelming
support from organizations across the ideological spectrum,
including the Heritage Foundation, the American Civil
Liberties Union, Freedomworks, the National Urban League, the
American Conservative Union, the Public Defender Association,
Americans for Prosperity, and the Center for American
Progress, among many others. Over three dozen Attorneys
General supported the Act as a critical tool for
strengthening our criminal justice system and better serving
the people of our states.
One of the First Step Act's key pillars was sentencing
reform. This reform included Section 404, which provides
retroactive relief for individuals sentenced under the
discarded 100-to-1 crack cocaine-to-powder-cocaine ratio that
Congress repudiated through the Fair Sentencing Act of 2010.
That earlier legislation abolished the 100-to-1 ratio going
forward, reflecting the overwhelming consensus that treating
crack cocaine and powder cocaine radically differently
exacerbated racial inequality in the criminal justice system
and resulted in unjustly severe sentences for low-level crack
cocaine users.
But the Fair Sentencing Act applied only to sentences
imposed after the Act's passage. As Senator Cory Booker
explained, it left thousands of ``people sitting in jail . .
. for selling an amount of drugs equal to the size of a candy
bar'' based solely on their sentencing date, underscoring the
need, in Senator Mike Lee's words, to apply the law ``equally
to all those convicted of cocaine and crack offenses
regardless of when they were convicted.'' Congress therefore
included Section 404 in the First Step Act, which allowed
individuals sentenced under the discarded 100-to-1 ratio to
seek discretionary resentencing.
Unfortunately, that critical work remains incomplete. In
Terry v. United States, the Supreme Court concluded that
while Section 404 clearly authorized certain mid- or high-
level crack cocaine offenders to seek resentencing, it did
not extend relief to the lowest-level offenders sentenced
under the prior regime. Specifically, the Court relied on
Section 404's definition of a covered offense as any
``violation of a Federal criminal statute, the statutory
penalties for which were modified by'' the Fair Sentencing
Act. The Court reasoned that because the Fair Sentencing Act
did not formally change the elements or penalties for the
lowest level era offensesg--it merely changed the quantities
needed to trigger mid- and high-level charges--the Act failed
to modify the ``statutory penalties'' for the lowest category
of offenders. As a result, these individuals are now the only
ones sentenced under the earlier crack cocaine quantities
that remain categorically ineligible for the First Step Act's
historic relief.
We urge Congress to close this gap. There is no reason why
these individual--and these individuals alone--should
continue to serve sentences informed by the now-discredited
crack-to-powder ratio. Discretionary relief is unambiguously
available to serious dealers and kingpins sentenced under the
prior regime; extending Section 404's scope would simply
allow individual users and other low-level crack cocaine
offenders to have the same opportunity for a second chance.
We therefore urge Congress to clarify that Section 404 of the
First Step Act extends to all individuals convicted of crack
cocaine offenses and sentenced under the 100-to-1 ratio--
including the lowest level offenders.
We thank you for your leadership on this important matter.
Sincerely,
Karl A. Racine, District of Columbia Attorney General; Rob
Bonta, California Attorney General; William Tong, Connecticut
Attorney General; Leevin Taitano Camacho, Guam Attorney
General; Tom Miller, Iowa Attorney General; Brian Frosh,
Maryland Attorney General; Dana Nessel, Michigan Attorney
General; Aaron D. Ford, Nevada Attorney General; Hector
Balderas, New Mexico Attorney General; Sean D. Reyes, Utah
Attorney General; Phil Weiser, Colorado Attorney General;
Kathleen Jennings, Delaware Attorney General; Kwame Raoul,
Illinois Attorney General; Aaron M. Frey, Main Attorney
General; Maura Healey, Massachusetts Attorney General; Keith
Ellison, Minnesota Attorney General; Andrew Buck, Acting New
Jersey Attorney General; Letitia James, New York Attorney
General; Ellen F. Rosenblum, Oregon Attorney General; Peter
F. Neronha, Rhode Island Attorney General; Mark R. Herring,
Virginia Attorney General; Joshua L. Kaul, Wisconsin Attorney
General;

[[Page H8627]]

Josh Shapiro, Pennsylvania Attorney General; T.J. Donovan,
Vermont Attorney General; Robert W. Ferguson, Washington
Attorney General.
Major Cities Chiefs

Association,

October 20, 2021.
Hon. Dick Durbin,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Cory Booker,
U.S. Senate, Washington, DC.
Hon. Chuck Grassley,
Ranking Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Mike Lee,
U.S. Senate, Washington, DC.
Dear Chairman Durbin, Ranking Member Grassley, Senator
Booker, and Senator Lee: I write on behalf of the Major
Cities Chiefs Association (MCCA) to register our support for
S. 2914, the Terry Technical Corrections Act. The MCCA is a
professional organization of police executives representing
the largest cities in the United States and Canada.
In 2010, Congress reduced the federal sentencing disparity
for crack versus powder cocaine offenses. However, due to an
unclear definition in statute, the Supreme Court recently
held in Terry v. United States that individuals convicted of
some of the least serious crack cocaine offenses are
ineligible to be resentenced under the reduced disparity. The
Terry Technical Corrections Ad will address this issue by
clarifying that all offenders sentenced for a crack cocaine
offense before the disparity was reduced are eligible to be
resentenced. While the MCCA believes Congress should
eliminate the federal sentencing disparity, until that
happens, this legislation will help address inequities in our
criminal justice system related to sentencing for crack
cocaine offenses.
Thank you for your leadership on this important issue.
Please do not hesitate to contact me if the MCCA can be of
any additional assistance.
Sincerely,
Chief Jeri Williams,
Chief, Phoenix Police Department, President, Major Cities
Chiefs Association.
Ms. JACKSON LEE. As Justice Thomas noted in his opinion in Terry v.
United States, citing my introduction of H.R. 4545, the Drug Sentencing
Reform and Cocaine Kingpin Trafficking Act of 2007, I have long worked
to address the sentencing disparity between crack cocaine and powder
cocaine offenses, introducing legislation to eliminate the disparity
completely.
Mr. Speaker, I include this opinion that cites this legislation,
among others, for the Record.

141 S.Ct. 1858

Supreme Court of the United States

Tarahrick TERRY, Petitioner

UNITED STATES

No. 20-5904

Argued May 4, 2021

Decided June 14, 2021

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.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT

Attorneys and Law Firms
Elizabeth B. Prelogar, Acting Solicitor General, Counsel of
Record, Department of Justice, Washington, DC, for
Respondent.
Opinion
Justice THOMAS delivered the opinion of the Court.
In 1986, Congress established mandatory-minimum penalties
for cocaine offenses. If the quantity of cocaine involved in
an offense exceeded a minimum threshold, then courts were
required to impose a heightened sentence. Congress set the
quantity thresholds far lower for crack offenses 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.

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 before
Congress, and Members of Congress themselves, believed that a
``crack epidemic'' was also fueling a crime wave. Crack, they
said, was far more addictive and dangerous than powder
cocaine; it was cheaper and thus easier to obtain; and these
and other factors spurred violent crime.
In response to these concerns, Congress quickly passed a
bill with near unanimity. 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 quantity: 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 unspecified 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 minimum.
Petitioner was convicted under this Act and subjected to
the third penalty. In exchange for the Government dropping
two firearm charges, petitioner pleaded guilty in 2008 to
possession with intent to distribute an unspecified amount of
crack. At sentencing, the District Court determined that his
offense involved about 4 grams of crack, a schedule II drug.
It also determined that petitioner was a career offender
under the Sentencing Guidelines. The career-offender
Guidelines controlled because they recommended a higher
sentence than the drug-quantity Guidelines. The District
Court sentenced 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 penalties. 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 created the ratio,
addressed some of Congress' concerns about crack. Addressing
those concerns through both the ratio and the Guidelines, the
Commission said, ``doubly punished'' offenders. United States
Sentencing Commission, Special Report to the Congress:
Cocaine and Federal Sentencing 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. Finally,
the Commission noted that persons convicted of crack offenses
were disproportionately black, so a ratio that was too high
created a ``perception of unfairness'' even though there was
no reason to believe ``that racial bias or animus undergirded
the initiation of this federal sentencing law.'' Members of
Congress responded to this and similar reports. For example,
Senators Sessions and Hatch introduced legislation 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, 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 mandatory minimum and from 50 grams to 280
for the 10-year mandatory minimum. Sec. 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 quantity
table used to calculate Guidelines ranges. The Commission
decreased the recommended sentence for crack offenders to
track the statutory change Congress made. It then made the
change retroactive, giving previous offenders an opportunity
for resentencing. Courts were still constrained, however, by
the statutory minimums in place before 2010. Many offenders
thus remained sentenced to terms above what the Guidelines
recommended. Congress addressed this issue in 2018 by
enacting 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
by that Act. The District Court denied his motion, and the
Eleventh Circuit affirmed, holding that offenders are
eligible 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.----, 141 S.Ct. 975. 208 L.Ed.2d 511 (2021).
On the day the Government's brief was due, the United
States informed the Court that, after the change in
administration, it would no longer defend the judgment.
Because of the timeline, the Court rescheduled argument,
compressed the briefing schedule, and appointed Adam K.
Mortara as amicus curiae to argue in support of the judgment.
He has ably discharged his responsibilities.

An offender is eligible for a sentence reduction under the
First Step Act only if he previously received ``a sentence
for a covered offense.'' Sec. 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.

[[Page H8628]]

Sec. 404(a), ibid. Here, ``statutory penalties'' references
the entire, integrated phrase ``a violation of a Federal
criminal statute.'' 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. Sec. 841. Subsection (a) makes it
unlawful to knowingly or intentionally possess with intent to
distribute any controlled substance. Subsection (b) lists
additional facts that, if proved, trigger penalties.
Before 2010, Sec. Sec. 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 distribute, (2) crack, of (3) at least 50 grams.
Sec. Sec. 1841(a), (b)(1)(A)(iii). This subparagraph (A)
offense was punishable 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. Sec. Sec. 841(a), (b)(1)(B)(iii). This subparagraph
(B) offense was punishable 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. Sec. Sec. 841(a),
(b)(1)(C).
Petitioner was convicted of the third offense--subparagraph
(C). Before 2010, the statutory penalties for that offense
were 0-to-20 years, up to a $1 million fine, or both, and a
period of supervised release. After 2010, these statutory
penalties remain exactly the same. The Fair Sentencing Act
thus did not modify the statutory penalties for petitioner'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
subparagraph (8). Before 2010, a person charged with the
original 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. 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 subparagraph (B)
before 2010 were knowing or intentional possession with
intent to distribute at least 5 grams of crack. Originally
punishable by 5-to-40 years, the offense defined by those
elements is now punishable by 0-to-20 years--that is, the
penalties under subparagraph (C). The statutory penalties
thus changed for all subparagraph (A) and (B) offenders. But
no statutory penalty changed for subparagraph (C) offenders.
That is hardly surprising because the Fair Sentencing Act
addressed ``cocaine sentencing disparity,'' Sec. 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
petitioner is eligible for a sentence reduction if the Fair
Sentencing 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
petitioner'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 & Telegraph
Co, 512 U.S. 218, 225, 114 S.Ct. 2223, 129 L.Ed.2d 182
(1994). The Fair Sentencing Act changed nothing in
subparagraph (C). The United States notes that prosecutors
before 2010 could charge offenders under subparagraph (B) if
the offense involved between 5 and 28 grams of crack; now,
prosecutors can charge those offenders only under
subparagraph (C). But even before 2010, prosecutors could
charge those offenders under subparagraph (C) because
quantity has never been an element 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 altering a different provision modified
subparagraph (C). If Congress abolished the crime of
possession with intent to distribute, prosecutors then would
have to bring charges under the lesser included offense of
simple possession. But nobody would say that abolishing the
first offense changed the second.
In light of the clear text, we hold that Sec. 2(a) of the
Fair Sentencing Act modified the statutory penalties only for
subparagraph (A) and (B) crack offenses--that is, the
offenses that triggered mandatory-minimum penalties. The
judgment of the Court of Appeals is affirmed.
It is so ordered.
Ms. JACKSON LEE. That is why I introduced H.R. 5455, the Terry
Technical Correction Act, which reaffirms Congress' intent to provide
retroactive sentencing relief to all individuals convicted of crack
cocaine offenses before the Fair Sentencing Act of 2010 took effect;
and now I support Mr. Jeffries' EQUAL Act, which we hope will be on the
President's desk.
With the declaration of the war on drugs in the early 1970s began a
dramatic rise in the U.S. prison population. In fact, Mr. Speaker, it
was teeming over, fueled largely by excessive, unwarranted drug
sentences, some for minimal drug sentences and actions, putting
particularly young African-American men in incarceration for decades.
The Federal Government played a pivotal role in America's era of mass
incarceration. During the 1980s and 1990s, Congress passed several
pieces of legislation that moved away from rehabilitation toward
excessive punishment.
One such example is the Anti-Drug Abuse Act of 1986, which created
mandatory minimum penalties for most drug offenses and established the
100-1 cocaine to crack disparity. We have found that that does not
bring down drug use. It does not bring down crime. What brings down
crime is an effective rehabilitation system so that law enforcement
officers do not have to confront recidivists ever again because we have
given them a pathway to enter into society.
As Justice Sotomayor acknowledges in her concurring opinion in Terry,
African Americans ``bore the brunt of the disparity.''
Between 1992 and 2006, roughly 80 to 90 percent of those convicted of
crack offenses were African American. There were many who sounded the
alarm during this time, including the U.S. Sentencing Commission, which
repeatedly called upon Congress to revisit the mandatory minimum
sentencing structure because of the racial disparities in cocaine
versus crack sentencing. Sadly, Congress refused to listen for many
years, and they did not see any strong impact on that approach.
Thankfully, Members of Congress, on an increasingly bipartisan
manner, have worked hard to reduce the harmful impact of the failed
policies of the war on drugs, including putting an end to the crack to
powder sentencing disparities.
Those who are supporting us--law enforcement officers, attorneys
general--are Republicans and Democrats alike. Through our efforts, we
have learned that there is no greater danger to public safety from
crack offenders than powder cocaine offenders, and that the 100-1 ratio
overstated the relative harmfulness of the two forms of cocaine and
diverted Federal resources away from prosecuting the highest level of
traffickers.
In 2010, Congress began the process to eradicate the devastating
consequences of the poorly conceived war on drugs and the punitive
response to the crack epidemic.
We have had circumstances where false warrants were used to enter
people's homes under the false premise that they were using drugs. That
didn't bring down crime. That didn't help eliminate those who were
doing ill to people. That was not the right approach.
The Fair Sentencing Act of 2010 reduced the sentencing disparity to
18-1, and the First Step Act of 2018 made the Fair Sentencing Act
retroactive.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. NADLER. Mr. Speaker, I yield an additional 30 seconds to the
gentlewoman.
Ms. JACKSON LEE. Mr. Speaker, although the Terry decision bars crack
offenders convicted of offenses involving small amounts of crack--like
the 3.9 grams of crack that the petitioner possessed--that do not
trigger the mandatory minimum penalties, Congress can address this
injustice.
H.R. 5455, aptly named the Terry Technical Correction Act, would
guarantee the ability to seek a sentence reduction to all individuals
who have unfairly lost years of freedom under the unfounded 100-1
disparity, including those whose requests for sentence reduction was
previously denied based on the narrow interpretation of the First Step
Act.
While I continue to look forward to the day that we will fully
eliminate the powder-to-crack disparity, I thank Representatives
Cicilline, Jeffries,

[[Page H8629]]

Owens, Massie, and Delegate Holmes Norton for working with me on this
crucial bipartisan piece of legislation.
Mr. Speaker, I ask my colleagues to support this. It is long overdue.
I also include for the Record a press release from the Maryland
Attorney General.

[Press Release from Brian E. Frosh, Maryland Attorney General, Sept. 2,
2021]

Attorney General Frosh Calls on Congress to Clarify First Step Act and
Apply Fair Sentencing Reforms to Low-Level Drug Offenses

Baltimore, MD.--Attorney General Brian E. Frosh today
joined a bipartisan coalition of 25 attorneys general urging
Congress to amend the First Step Act and extend critical
resentencing reforms to individuals convicted of the lowest-
level crack cocaine offenses.
The coalition is calling on legislators to take this needed
step in the wake of the Supreme Court's recent decision in
Terry v. United States, which held that certain mid-level and
high-level crack cocaine offenders could seek resentencing
under the law, but low-level offenders were not eligible.
``The intent of the First Step Act was to correct
disproportionately harsh sentencing. Ironically, the does not
apply to low-level offenders,'' said Attorney General Frosh.
``Congress needs to fix this oversight and ensure that the
law provides relief to those who committed lower-level crimes
and were subject to inequitable sentencing.''
The First Step Act, a landmark criminal justice reform law,
passed Congress with strong bipartisan support in 2018. One
key reform aimed to correct injustices caused by the earlier
crack cocaine vs. powder cocaine sentencing regime. That now-
discredited regime punished users and dealers of crack
cocaine much more harshly than users and dealers of powder
cocaine, which disproportionately harmed communities of
color.
In 2010, Congress passed the Fair Sentencing Act to reduce
the disparity between sentences for crack cocaine and powder
cocaine. However, the law did not help the many people
sentenced for crack cocaine offenses before 2010 who remained
in prison. The First Step Act then included a provision that
made previous drug sentencing reforms retroactive, allowing
those serving harsh sentences imposed under the former
federal law to seek relief.
U.S. Senators Richard J. Durbin, Charles E. Grassley, Cory
A. Booker, and Mike Lee--the drafters of the First Step Act--
confirmed in an amicus brief that the sentencing relief was
intended to apply to all crack cocaine offenders sentenced
before 2010. Nevertheless, in Terry v. United States, the
Supreme Court concluded that while the First Step Act clearly
authorized certain mid- or high-level crack cocaine offenders
to seek resentencing, it failed to extend relief to the
lowest-level offenders.
In today's letter, the attorneys general urge Congress to
close that gap and clarify that the sentencing relief
provided by the First Step Act extends to all individuals
convicted of crack cocaine offenses under the earlier regime,
including the lowest-level offenders. They argue that there
is no reason that only these low-level offenders should
continue to serve sentences informed by now-discredited
standards, and that they should have an opportunity to seek a
second chance.
Attorney General Frosh is joined in the letter by the
attorneys general of California, Colorado, Connecticut,
Delaware, the District of Columbia, Guam, Illinois, Iowa,
Maine, Massachusetts, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode
Island, Utah, Vermont, Virginia, Washington, and Wisconsin.
Mr. Speaker, I rise in support of H.R. 5455, the ``Terry Technical
Correction Act.''
As Justice Thomas noted in his opinion in Terry v. United States,
citing my introduction of H.R. 4545, the ``Drug Sentencing Reform and
Cocaine Kingpin Trafficking Act of 2007,'' I have long worked to
address the sentencing disparity between crack cocaine and powder
cocaine offenses--introducing legislation to eliminate the disparity
completely.
That is why I introduced H.R. 5455, the ``Terry Technical Correction
Act''--which reaffirms Congress's intent to provide retroactive
sentencing relief to all individuals convicted of crack cocaine
offenses before the Fair Sentencing Act of 2010 took effect.
With the declaration of the ``War on Drugs'' in the early 1970's
began a dramatic rise in the U.S. prison population--fueled largely by
excessive, unwarranted drug sentences.
The federal government played a pivotal role in America's era of mass
incarceration. During the 1980s and 1990s, Congress passed several
pieces of legislation that moved away from rehabilitation toward
excessive punishment.
One such example is the Anti-Drug Abuse Act of 1986, which created
mandatory minimum penalties for most drug offenses, and established the
100-to-1, cocaine to crack disparity.
And, as Justice Sotomayor acknowledges in her concurring opinion in
Terry, African Americans ``bore the brunt of the disparity.''
Between 1992 and 2006, roughly 80 to 90 percent of those convicted of
crack offenses were African American.
There were many who sounded the alarm during this time, including the
U.S. Sentencing Commission, which repeatedly called upon Congress to
revisit the mandatory minimum sentencing structure because of the
racial disparities in cocaine versus crack sentencing. Sadly, Congress
refused to listen for many years.
Thankfully, members of Congress, on an increasingly bipartisan basis
have worked hard to reduce the harmful impact of the failed policies of
the War on Drugs, including putting an end to the crack to powder
sentencing disparity.
Through our efforts, we have learned that there is no greater danger
to public safety from crack offenders than powder cocaine offenders,
and that the 100-to-1 ratio overstated the relative harmfulness of the
two forms of cocaine and diverted federal resources away from
prosecuting the highest-level traffickers.
In 2010, Congress began the process to eradicate the devastating
consequences of the poorly conceived War on Drugs--and the punitive
response to the crack epidemic.
The Fair Sentencing Act of 2010 reduced the sentencing disparity to
18-to-1, and the First Step Act of 2018 made the Fair Sentencing Act
retroactive.
Although the Terry decision bars crack offenders convicted of
offenses involving small amounts of crack--like the 3.9 grams of crack
that the petitioner possessed that do not trigger the mandatory minimum
penalties--Congress can correct this injustice.
H.R. 5455, aptly named the ``Terry Technical Correction Act,'' would
guarantee the ability to seek a sentence reduction to all individuals
who have unfairly lost years of freedom under the unfounded 100 to 1
disparity, including those whose requests for sentence reductions were
previously denied based on the narrow interpretation of the First Step
Act.
While I continue to look forward to the day that we will fully
eliminate the powder to crack disparity, I thank Representatives
Cicilline, Jeffries, Owens, and Massie, and Delegate Holmes Norton for
working with me on this crucial, bipartisan piece of legislation and
ask my colleagues on both sides of the aisle to support it.
Mr. TIFFANY. Mr. Speaker, I urge my colleagues to support this bill,
and I yield back the balance of my time.
Mr. NADLER. Mr. Speaker, H.R. 5455, the Terry Technical Correction
Act, is a straightforward bipartisan bill that advances our efforts to
make our criminal justice system more fair. I urge my colleagues to
support it, and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from New York (Mr. Nadler) that the House suspend the rules
and pass the bill, H.R. 5455, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. BIGGS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.

____________________