[House Report 117-586]
[From the U.S. Government Publishing Office]


117th Congress     }                                  {     Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                  {     117-586

======================================================================

 
                     TERRY TECHNICAL CORRECTION ACT

                                _______
                                

 November 29, 2022.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5455]

    The Committee on the Judiciary, to whom was referred 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, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
Committee Estimate of Budgetary Effects..........................     5
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     5
Duplication of Federal Programs..................................     5
Performance Goals and Objectives.................................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     6

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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.

                          Purpose and Summary

    Introduced by Rep. Sheila Jackson Lee (D-TX) on September 
30, 2021, H.R. 5455, the ``Terry Technical Correction Act,'' 
clarifies that the retroactivity provision of section 404 of 
the First Step Act is available to all offenders who were 
sentenced for a crack cocaine offense before the Fair 
Sentencing Act of 2010 became effective, including individuals 
convicted of offenses involving small quantities of crack.

                Background and Need for the Legislation

    In the mid-1980s, the United States experienced a surge in 
the use of crack cocaine. News of high-profile, cocaine-related 
deaths, including that of the recently drafted basketball star, 
Len Bias, filled headlines across the country.\1\ Witnesses 
before Congress, and Members of Congress themselves, believed 
that crack was more addictive and dangerous than powder 
cocaine, cheaper and easier to obtain; and that these and other 
factors were fueling a crime wave.\2\ In response to these 
concerns, Congress quickly passed the Anti-Drug Abuse Act of 
1986 (ADAA), which established mandatory-minimum penalties for 
cocaine offenses.\3\ If the quantity of cocaine involved in an 
offense met or exceeded a minimum threshold, then federal 
judges were required to impose a minimum sentence. Congress set 
the quantity thresholds much lower for crack offenses than 
powder offenses.
---------------------------------------------------------------------------
    \1\Gleber, Jonathan, How Len Bias's death helped launch the US's 
unjust war on drugs, The Guardian (June 29, 2021) https://
www.theguardian.com/sport/2021/jun/29/len-bias-death-basketball-war-on-
drugs.
    \2\United States Sentencing Commission, Report to the Congress: 
Cocaine and Federal Sentencing Policy 5-6, 9-10, and n. 31 (May 2002); 
``Crack'' Cocaine, Hearing before the Permanent Subcommittee on 
Investigations of the Senate Committee on Governmental Affairs, 99th 
Cong., 2d Sess., 2, 5-6, 10, 94 (1986).
    \3\The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Sec. 1002, 
100 Stat. 3207 (1986).
---------------------------------------------------------------------------
    The ADAA included two base penalties that depended on drug 
quantity: a five-year mandatory minimum (triggered by five 
grams of crack or 500 grams of powder) and a ten-year mandatory 
minimum (triggered by 50 grams of crack or 5 kilograms of 
powder).\4\ The ADAA also created a third penalty for 
possession with intent to distribute 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 penalty.\5\
---------------------------------------------------------------------------
    \4\100 Stat. 3207-2, 3207-3.
    \5\Id., at 3207-4.
---------------------------------------------------------------------------
    The Fair Sentencing Act of 2010 reduced the 100-to-1 crack-
powder cocaine sentencing disparity to 18-to-1. The Act 
increased the crack quantity thresholds from five grams to 28 
grams for the five-year mandatory minimum and from 50 grams to 
280 grams for the ten-year mandatory minimum.\6\ These changes 
did not apply to offenders who were sentenced before 2010 
because the provisions of the Fair Sentencing Act were not made 
retroactive.
---------------------------------------------------------------------------
    \6\The Fair Sentencing Act of 2010, Sec. 2(a), 124 Stat. 2372 
(2010).
---------------------------------------------------------------------------
    As a result of the Fair Sentencing Act, the U.S. Sentencing 
Commission altered the drug quantity table used to calculate 
Guideline ranges.\7\ The Commission decreased the recommended 
sentence for crack offenses to track the statutory change and 
made the change retroactive, giving previous offenders the 
opportunity for resentencing. However, judges were still 
constrained by the mandatory minimums in place prior to 2010, 
leaving many offenders serving sentences above what the 
Guidelines recommended.
---------------------------------------------------------------------------
    \7\USSG 2D1.1(c)
---------------------------------------------------------------------------
    In 2018, Congress passed the First Step Act of 2018, which 
made the Fair Sentencing Act changes retroactive and gave 
judges the authority to reduce the sentences of certain crack 
offenders.\8\ section 404 of the First Step Act allows crack 
cocaine offenders to request a sentence reduction in line with 
the Fair Sentencing Act. Specifically, the First Step Act 
allows defendants sentenced for a ``covered offense'' to seek a 
resentencing. A ``covered offense'' is defined as ``a violation 
of a federal criminal statute, the statutory penalties for 
which were modified by . . . the Fair Sentencing Act.''\9\
---------------------------------------------------------------------------
    \8\First Step Act of 2018, Pub. L. No. 115-391, 132 Stat 5194 
(2018).
    \9\Sec. 404, 132 Stat 5194.
---------------------------------------------------------------------------
    In 2019, Taharick Terry petitioned for reduction of his 
188-month sentence for possession with intent to distribute an 
unspecified amount of crack cocaine pursuant to the First Step 
Act. The district judge denied the motion. Mr. Terry appealed. 
The 11th Circuit Court of Appeals affirmed the denial, and 
certiorari to the Supreme Court was granted. In Terry v. United 
States, 141 S. Ct. 1858 (2021), the Court held that low-level 
crack offenders, whose conduct did not trigger a mandatory 
minimum penalty, do not qualify for resentencing under section 
404 of the First Step Act. The effect of this holding is that 
those individuals convicted of the offenses involving the 
lowest quantities of crack cocaine are not eligible for 
retroactive relief, whereas other offenders are.
    H.R. 5455 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. This bill responds to the Supreme Court's ruling 
in Terry to ensure that the lowest-level offenders, who commit 
crimes that do not trigger mandatory minimums, qualify for the 
sentencing reductions provided for in the Fair Sentencing Act.

                                Hearings

    For the purposes of clause 3(c)(6) of House rule XIII, the 
following hearings were used to develop H.R. 5455:
    The hearing, ``Controlled Substances: Federal Policies and 
Enforcement,'' held on March 11, 2021, before the Subcommittee 
on Crime, Terrorism, and Homeland Security. The Subcommittee 
heard testimony from:
           Nicole M. Austin-Hillery, Executive 
        Director, US Program, Human Rights Watch;
           Howard Henderson, Founding Director, Center 
        for Justice Research, Texas Southern University; 
        Nonresident Senior Fellow, Governance Studies, 
        Brookings Institution;
           Derek Maltz, Former Special Agent in Charge, 
        Special Operations Division, Drug Enforcement 
        Administration; and
           Katharine Neill Harris, Alfred C. Glassell, 
        III, Fellow in Drug Policy, Baker Institute for Public 
        Policy, Rice University.
    The hearing examined federal policies concerning controlled 
substances and the enforcement of our drug laws.
    The Committee also held the following hearing: ``Undoing 
the Damage of the War on Drugs: A Renewed Call for Sentencing 
Reform,'' held on June 17, 2021, before the Subcommittee on 
Crime, Terrorism, and Homeland Security. The Subcommittee heard 
testimony from:
           Rachel E. Barkow, Vice Dean and Charles 
        Seligson Professor of Law; Faculty Director, Center on 
        the Administration of Criminal Law; NYU School of Law;
           William R. Underwood, Senior Fellow, The 
        Sentencing Project;
           Kyana Givens, Assistant Federal Public 
        Defender, Office of the Federal Public Defender for the 
        Eastern District of North Carolina;
           Kassandra Frederique, Executive Director, 
        Drug Policy Alliance;
           Marta Nelson, Director, Government Strategy, 
        Advocacy and Partnerships Department, Vera Institute of 
        Justice;
           Jillian E. Snider, Director, Criminal 
        Justice & Civil Liberties, R Street Institute; and
           John Malcolm, Vice President, Institute for 
        Constitutional Government; Director, Meese Center for 
        Legal and Judicial Studies; and Ed Gilbertson and 
        Sherry Lindberg Gilbertson Senior Legal Fellow; The 
        Heritage Foundation.
    The hearing examined the rise of mass incarceration; 
explored the existing laws and polices fueling mass 
incarceration from pretrial detention, the trial penalty to 
mandatory minimum penalties, and the Federal Bureau of Prisons 
(BOP) underutilization of its early release authorities; 
examined proposed sentencing reforms; and reviewed state-level 
reform efforts that might serve as a model for federal reform.

                        Committee Consideration

    On September 21, 2022, the Committee met in open session 
and ordered the bill, H.R. 5455, favorably reported, as 
amended, by a voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, no 
rollcall votes occurred during the Committee's consideration of 
H.R. 5455.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of House rule X, are incorporated in the descriptive portions 
of this report.

                Committee Estimate of Budgetary Effects

    Pursuant to clause 3(d)(1) of House rule XIII, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(2) of House rule XIII and section 
308(a) of the Congressional Budget Act of 1974, and pursuant to 
clause (3)(c)(3) of House rule XIII and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received from the Director of the Congressional Budget 
Office a budgetary analysis and a cost estimate of this bill.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 5455 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 5455 would ensure that the retroactivity 
provision of section 404 of the First Step Act is available to 
all offenders who were sentenced for a crack cocaine offense 
prior to enactment of the Fair Sentencing Act of 2010, which 
reduced the 100-to-1 crack-powder cocaine sentencing disparity 
to 18-to-1, including those convicted of offenses involving 
small quantities of crack.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 5455 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clause 9(d), 
9(e), or 9(f) of House rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short Title. Section 1 of the bill sets forth the 
short title of the bill as the ``Terry Technical Correction 
Act.''
    Sec. 2. Application of Fair Sentencing Act of 2010. Section 
2 clarifies that the definition of a ``covered offense'' under 
section 404 of the First Step Act of 2018 includes violations 
of listed offenses involving cocaine base. The offenses are:
          (1) 5 U.S.C. 3113;
          (2) 21 U.S.C. 841(b)(1)(C);
          (3) 21 U.S.C. 844(a);
          (4) 21 U.S.C. 846;
          (5) 21 U.S.C. 848;
          (6) 21 U.S.C. 849;
          (7) 21 U.S.C. 859;
          (8) subsections (a), (b), and (c) of 21 U.S.C. 860;
          (9) 21 U.S.C. 861;
          (10) 21 U.S.C. 960(b)(3);
          (11) 21 U.S.C. 960a;
          (12) 34 U.S.C. 12522;
          (13) 46 U.S.C. 70503 and 70506; and 14) any attempt, 
        conspiracy, or solicitation to commit the above-listed 
        offenses.
    Section 2 also provides that a previous denial of a motion 
to reduce sentencing under section 404 is not a denial after a 
complete review of the motion on the merits that would 
foreclose a subsequent motion to reduce sentencing, if the 
previous denial was based on a determination that a violation 
of an offense listed in this section was not a covered offense.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                         FIRST STEP ACT OF 2018




           *       *       *       *       *       *       *
TITLE IV--SENTENCING REFORM

           *       *       *       *       *       *       *


SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

  (a) Definition of Covered Offense.--In this section, the term 
[``covered offense'' means] ``covered offense''-- 
          (1) means a violation of a Federal criminal statute, 
        the statutory penalties for which were modified by 
        section 2 or 3 of the Fair Sentencing Act of 2010 
        (Public Law 111-220; 124 Stat. 2372), that was 
        committed before August 3, 2010[.]; and
          (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).
  (b) Defendants Previously Sentenced.--A court that imposed a 
sentence for a covered offense may, on motion of the defendant, 
the Director of the Bureau of Prisons, the attorney for the 
Government, or the court, impose a reduced sentence as if 
sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 
111-220; 124 Stat. 2372) were in effect at the time the covered 
offense was committed.
  (c) Limitations.--No court shall entertain a motion made 
under this section to reduce a sentence if the sentence was 
previously imposed or previously reduced in accordance with the 
amendments made by sections 2 and 3 of the Fair Sentencing Act 
of 2010 (Public Law 111-220; 124 Stat. 2372) or if a previous 
motion made under this section to reduce the sentence was, 
after the date of enactment of this Act, denied after a 
complete review of the motion on the merits. Nothing in this 
section shall be construed to require a court to reduce any 
sentence pursuant to this section. 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.

           *       *       *       *       *       *       *


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