[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

                                   v.

                             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.


                                   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 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.


                                   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.'' 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.

                          ____________________