Terry v. United States

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 486–502
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 14, 2021
REBECCA A. WOMELDORF
reporter of decisions
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486 OCTOBER
TERM, 2020
Syllabus
TERRY v. UNITED STATES
certiorari
to the united states court of appeals for
the eleventh circuit
No. 20–5904. Argued May 4, 2021—Decided June 14, 2021
Petitioner Tarahrick Terry contends that he is eligible to receive a sen-
tence reduction for his 2008 crack cocaine conviction. In 1986, Con-
gress established mandatory-minimum penalties for certain drug of-
fenses. That legislation defned three relevant penalties for possession
with intent to distribute cocaine. The frst two carried mandatory mini-
mum sentences based on drug quantity: a 5-year mandatory minimum
(triggered by either 5 grams of crack cocaine or 500 grams of powder
cocaine) and a 10-year mandatory minimum (triggered by either 50
grams of crack or 5 kilograms of powder). 100 Stat. 3207–2, 3207–3.
The third penalty differed from the frst two: it did not carry a manda-
tory minimum sentence, did not treat crack and powder cocaine offenses
differently, and did not depend on drug quantity. Id., at 3207–4. Peti-
tioner was subjected to this third penalty when he pleaded guilty in
2008 to possession with intent to distribute an unspecifed amount of
crack. The District Court determined that his offense involved about
4 grams of crack.
Two years later, Congress passed the Fair Sentencing Act of 2010,
which increased the crack quantity thresholds from 5 grams to 28 for
the 5-year mandatory minimum and from 50 grams to 280 for the 10-
year mandatory minimum. § 2(a), 124 Stat. 2372. But Congress did
not make this change retroactive until 2018, when it enacted the First
Step Act. After that, Petitioner sought resentencing on the ground
that he was convicted of a crack offense modifed by the Fair Sentencing
Act. The District Court denied his motion, and the Eleventh Circuit
affrmed.
Held: A crack offender is eligible for a sentence reduction under the First
Step Act only if convicted of a crack offense that triggered a mandatory
minimum sentence. The First Step Act makes an offender eligible for
a sentence reduction only if the offender previously received “a sentence
for a covered offense.” § 404(b), 132 Stat. 5222. The Act defnes “ `cov-
ered offense' ” as “a violation of a Federal criminal statute, the statutory
penalties for which were modifed by” certain provisions in the Fair
Sentencing Act. § 404(a), ibid. The Fair Sentencing Act modifed the
statutory penalties for offenses that triggered mandatory minimum pen-

Cite
as: 593 U. S. 486 (2021)
487
Syllabus
alties because a person charged with the same conduct today no longer
wou
ld face the same statutory penalties that they would have faced
before 2010. For example, a person charged with knowing or inten-
tional possession with intent to distribute at least 50 grams of crack was
subject to a 10-year mandatory minimum before 2010. Now, he would
be subject only to a 5-year mandatory minimum. But the Fair Sentenc-
ing Act did not modify the statutory penalties for petitioner's offense.
Before 2010, a person charged with petitioner's offense—knowing or
intentional possession with intent to distribute an unspecifed amount
of a schedule I or II drug—was subject to statutory penalties of impris-
onment of 0-to-20 years and up to a $1 million fne, or both, and a period
of supervised release. After 2010, a person charged with this conduct
is subject to the exact same statutory penalties. Petitioner thus is not
eligible for a sentence reduction. Pp. 492–495.
828 Fed. Appx. 563, affrmed.
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., fled an opinion concurring in part and concurring
in the judgment, post, p. 495.
Andrew L. Adler argued the cause for petitioner. With
him on the briefs were Brenda G. Bryn, Amir H. Ali, and
Devi M. Rao.
Deputy Solicitor General Feigin argued the cause for the
United States. On the brief was Acting Solicitor General
Prelogar.
Adam K. Mortara, by invitation of the Court, 592 U. S. –––,
argued the cause and fled a brief as amicus curiae in sup-
port of the judgment below. With him on the brief was Jon-
athan F. Mitchell.*
*Briefs of amici curiae urging reversal were fled for the District of
Columbia et al. by Karl A. Racine, Attorney General of the District of
Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Prin-
cipal Deputy Solicitor General, Ashwin P. Phatak, Deputy Solicitor Gen-
eral, and Harrison M. Stark, Assistant Attorney General, and by the At-
torneys General for their respective States as follows: Philip J. Weiser of
Colorado, Kathleen Jennings of Delaware, Kwame Raoul of Illinois,
Thomas J. Miller of Iowa, Brian E. Frosh of Maryland, Maura Healey of
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488 TERR
Y v. UNITED STATES
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
In
1986, Congress established mandatory-minimum penal-
ties 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 fve-
fold. 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-profle,
cocaine-related deaths permeated the media. Witnesses be-
fore Congress, and Members of Congress themselves, be-
lieved that a “crack epidemic” was also fueling a crime wave.
Crack, they said, was far more addictive and dangerous than
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Gurbir S. Grewal of New Jersey, Letitia James
of New York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of
Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island,
Thomas J. Donovan, Jr., of Vermont, Mark R. Herring of Virginia, and
Robert W. Ferguson of Washington; for the American Civil Liberties
Union et al. by David D. Cole, Jennesa Calvo-Friedman, Ezekiel R. Ed-
wards, Daniel B. Tilley, Sherrilyn A. Ifll, Janai S. Nelson, Samuel
Spital, Mahogane D. Reed, and Nila Bala; for the American Conservative
Union & ACU Foundation et al. by Joshua C. Toll, John W. Whitehead,
Clark M. Neily III, Jay R. Schweikert, and Arthur Rizer; for Americans
for Prosperity Foundation by Michael Pepson; for the Constitutional Ac-
countability Center by Elizabeth B. Wydra and Brianne J. Gorod; for Re-
tired Federal Judges et al. by Gerard J. Cedrone, David J. Zimmer, David
Oscar Markus, and Benjamin Hayes; and for Sen. Richard J. Durbin et al.
by Zachary C. Schauf.
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Cite
as: 593 U. S. 486 (2021)
489
Opinion of the Court
powder cocaine; it was cheaper and thus easier to obtain; and
these
and other factors spurred violent crime.
1
In response to these concerns, Congress quickly passed a
bill with near unanimity.
2
The new law created mandatory-
minimum penalties for various drug offenses, and it set much
lower trigger thresholds for crack offenses. The Act in-
cluded 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 unspecifed
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. Id., at
3207–4.
1
United States Sentencing Commission, Report to the Congress: Co-
caine and Federal Sentencing Policy 5–6, 9–10, and n. 31 (May 2002);
“Crack” Cocaine, Hearing before the Permanent Subcommittee on Investi-
gations of the Senate Committee on Governmental Affairs, S. Hrg. 99–
929, pp. 2, 5–6, 10, 94 (1986).
2
The Act passed the Democratic-controlled House, where it was intro-
duced, 392 to 16. H. R. 5484, 99th Cong., 2d Sess. (1986); 132 Cong. Rec.
23003–23004 (1986). It passed the Republican-controlled Senate 97 to 2.
Id., at 27251–27252. A majority of the Congressional Black Caucus co-
sponsored and voted for the bill. Compare id., at 23003, with Hearing
before the Congressional Black Caucus, “Brain Trust on Aging ” and the
House Select Committee on Aging, 99th Cong., 1st Sess., iii (1985). Many
black leaders in that era professed two concerns. First, crack was fueling
crime against residents in inner cities, who were predominantly black.
For example, the president of an NAACP chapter in the D. C. region called
crack “ `the worst thing to hit us since slavery,' ” a sentiment echoed by
the leading black newspaper in Los Angeles. J. Forman, Locking Up Our
Own 158 (2017). Second, there were concerns that prosecutors were not
taking these kinds of crimes seriously enough because the victims were
disproportionately black. In the words of John Ray, a D. C. councilmem-
ber who spearheaded a successful effort to create mandatory minimum
penalties: “ `Black crimes against blacks get very low sentences,' ” unlike
crimes against whites. Id., at 132.

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490 TERR
Y v. UNITED STATES
Opinion of the Court
Petitioner was convicted under this Act and subjected to
the
third penalty. In exchange for the Government drop-
ping two frearm charges, petitioner pleaded guilty in 2008
to possession with intent to distribute an unspecifed amount
of crack. At sentencing, the District Court determined that
his offense involved about 4 grams of crack, a schedule II
drug. See 21 U. S. C. § 812; 21 CFR § 1308.12 (2006). It
also determined that petitioner was a career offender under
the Sentencing Guidelines. United States Sentencing Com-
mission, Guidelines Manual § 4B1.1(b) (Nov. 2008) (USSG).
The career-offender Guidelines controlled because they
recommended a higher sentence than the drug-quantity
Guidelines. Ibid. 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 Con-
gress 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” of-
fenders. United States Sentencing Commission, Special Re-
port 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 co-
caine poses greater harms to society than does powder co-
caine,” it determined that the ratio overstated the difference
in harm. Ibid. 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 sentenc-

Cite
as: 593 U. S. 486 (2021)
491
Opinion of the Court
ing law.” Id., at 153–154, 192. Members of Congress re-
sponded
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. Repre-
sentative Jackson-Lee led a similar effort in the House, but
would have created a 1-to-1 ratio. H. R. 4545, 110th Cong.,
1st Sess. (2007).
Two years after petitioner was sentenced, these attempts
to change the ratio came to fruition. In the Fair Sentencing
Act of 2010, 124 Stat. 2372, note following 21 U. S. C. 801,
Congress reaffrmed 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 manda-
tory minimum and from 50 grams to 280 for the 10-year man-
datory minimum. § 2(a), 124 Stat. 2372. These changes did
not apply to those who had been sentenced before 2010.
The Sentencing Commission then altered the drug quan-
tity t able used to ca lcu late Guidel i nes ranges. USSG
§ 2D1.1(c). The Commission decreased the recommended
sentence for crack offenders to track the statutory change
Congress made. It then made the change retroactive, giv-
ing previous offenders an opportunity for resentencing.
Courts were still constrained, however, by the statutory
minimums in place before 2010. Many offenders thus re-
mained sentenced to terms above what the Guidelines rec-
ommended. Congress addressed this issue in 2018 by enact-
ing 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, ret-
roactive Guidelines. But because his sentence was based on
his recidivism, not his drug quantity, his attempt was unsuc-
cessful. After Congress enacted the First Step Act, peti-
tioner again sought resentencing, this time contending that
he falls within the category of crack offenders covered by
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492 TERR
Y v. UNITED STATES
Opinion of the Court
that Act. The District Court denied his motion, and the
Ele
venth Circuit affrmed, 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. ––– (2021).
On the day the Government's brief was due, the United
States informed the Court that, after the change in adminis-
tration, it would no longer defend the judgment. Because
of the timeline, the Court rescheduled argument, compressed
the briefng 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.” § 404(b), 132 Stat. 5222. The Act de-
fnes “ `covered offense' ” as “a violation of a Federal criminal
statute, the statutory penalties for which were modifed by”
certain provisions in the Fair Sentencing Act. § 404(a), ibid.
Here, “statutory penalties” references the entire, integrated
phrase “a violation of a Federal criminal statute.” United
States v. Jones, 962 F. 3d 1290, 1298 (CA11 2020). And that
phrase means “offense.” Black's Law Dictionary 1300 (11th
ed. 2019) (“A violation of the law”). We thus ask whether
the Fair Sentencing Act modifed the statutory penalties for
petitioner's offense. It did not.
The elements of petitioner's offense are presented by two
subsections of 21 U. S. C. § 841. Subsection (a) makes it un-
lawful to knowingly or intentionally possess with intent to
distribute any controlled substance. Subsection (b) lists ad-
ditional facts that, if proved, trigger penalties.
Before 2010, §§ 841(a) and (b) together defned three crack
offenses relevant here. The elements of the frst offense
were (1) knowing or intentional possession with intent to
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as: 593 U. S. 486 (2021)
493
Opinion of the Court
distribute, (2) crack, of (3) at least 50 grams. §§ 841(a),
(
b)(1)(A)(iii). This subparagraph (A) offense was punishable
by 10 years to life, in addition to fnancial penalties and su-
pervised release. The elements of the second offense were
(1) knowing or intentional possession with intent to distrib-
ute, (2) crack, of (3) at least 5 grams. §§ 841(a), (b)(1)(B)(iii).
This subparagraph (B) offense was punishable by 5-to-40
years, in addition to fnancial penalties and supervised re-
lease. And the elements of the third offense were (1) know-
ing or intentional possession with intent to distribute, (2)
some unspecifed amount of a schedule I or II drug.
§§ 841(a), (b)(1)(C).
Petitioner was convicted of the third offense—sub-
paragraph (C). Before 2010, the statutory penalties for that
offense were 0-to-20 years, up to a $1 million fne, or both,
and a period of supervised release.
3
After 2010, these statu-
tory penalties remain exactly the same. The Fair Sentenc-
ing Act thus did not modify the statutory penalties for peti-
tioner's offense.
Petitioner's offense is starkly different from the offenses
that triggered mandatory minimums. The Fair Sentencing
Act plainly “modifed” 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 (B). Before 2010, a person charged with the
original elements of subparagraph (A)—knowing or inten-
tional possession with intent to distribute at least 50 grams
of crack—faced a prison range of between 10 years and life.
3
All three subparagraphs carried, and continue to carry, heightened pen-
alties if an offense caused death or serious bodily injury or if the defendant
was a repeat offender. Petitioner's actual sentencing range under subpar-
agraph (C) was 0-to-30 years because he had a prior felony drug offense.
828 Fed. Appx. 563, 565 (CA11 2020). Because these enhancements are
identical before and after 2010, they make no difference to the analysis.
Petitioner's enhancement for his prior conviction is thus omitted from the
body of the opinion for the sake of simplicity.
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494 TERR
Y v. UNITED STATES
Opinion of the Court
But because the Act increased the trigger quantity under
subparagraph
(A) to 280 grams, a person charged with those
original elements after 2010 is now subject to the more le-
nient 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 defned by those ele-
ments
4
is now punishable by 0-to-20 years—that is, the pen-
alties 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,” § 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 stat-
ute.” 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 modifed for subparagraph (C)
offenders. To “modify” means “to change moderately.”
MCI Telecommunications Corp. v. American Telephone &
4
Of course, an indictment that charged a person with 5 grams of crack
now is no different from one charging the person with an unspecifed
amount of crack. The usual practice is to ignore extraneous language in
an indictment. E. g., Ford v. United States, 273 U. S. 593, 602 (1927).
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as: 593 U. S. 486 (2021)
495
Opinion of Sotomayor, J.
Telegraph Co., 512 U. S. 218, 225 (1994). The Fair Sentenc-
i
ng Act changed nothing in subparagraph (C). The United
States notes that prosecutors before 2010 could charge of-
fenders under subparagraph (B) if the offense involved be-
tween 5 and 28 grams of crack; now, prosecutors can charge
those offenders only under subparagraph (C). But even be-
fore 2010, prosecutors could charge those offenders under
subparagraph (C) because quantity has never been an ele-
ment under that subparagraph. See, e. g., United States v.
Birt, 966 F. 3d 257, 259 (CA3 2020) (noting that an offender
charged under subparagraph (C) had possessed 186 grams of
crack). It also defes common parlance to say that altering a
different provision modifed subparagraph (C). If Congress
abolished the crime of possession with intent to distribute,
prosecutors then would have to bring charges under the less-
er included offense of simple possession. But nobody would
say that abolishing the frst offense changed the second.
In light of the clear text, we hold that § 2(a) of the Fair
Sentencing Act modifed the statutory penalties only for sub-
paragraph (A) and (B) crack offenses—that is, the offenses
that triggered mandatory-minimum penalties. The judg-
ment of the Court of Appeals is affrmed.
It is so ordered.
Justice Sotomayor, concurring in part and concurring in
the judgment.
I agree with the Court's interpretation of the First Step
Act, join Part II of its opinion, and concur in the judgment.
1
1
I do not join Part I of the Court's opinion because it includes an unnec-
essary, incomplete, and sanitized history of the 100-to-1 ratio. The full
history is far less benign. The Court, ante, at 489, n. 2, emphasizes Black
leaders' support for “tough-on-crime” policies, but ignores that these lead-
ers “also called for federal investment in longer-term, root-cause solutions
such as welfare, education, and job training programs.” J. Forman, Lock-
ing Up Our Own 157 (2017) (Forman). But “[t]he help never arrived,”
leaving Black communities with “just the tough-on-crime laws” and little

496 TERR
Y v. UNITED STATES
Opinion of Sotomayor, J.
I write separately to clarify the consequences of today's deci-
si
on. While the Fair Sentencing Act of 2010 and First Step
Act of 2018 brought us a long way toward eradicating the
vestiges of the 100-to-1 crack-to-powder disparity, some peo-
ple have been left behind.
Among them are people like petitioner Tarahrick Terry,
who was convicted under 21 U. S. C. § 841(b)(1)(C) for pos-
sessing with intent to distribute a small amount of crack co-
caine and was sentenced as a career offender. If Terry had
been convicted under § 841(b)(1)(A) or § 841(b)(1)(B), which
require larger quantities of drugs, he would be eligible for
resentencing under the First Step Act (even if sentenced as
a career offender). Similarly, despite being convicted under
subparagraph (C), if Terry's Sentencing Guidelines range had
been calculated like that of a noncareer offender, he would
have been eligible for a sentence reduction when the United
States Sentencing Commission retroactively reduced the
amount of crack cocaine necessary to trigger higher Guide-
lines ranges. But because Terry was both convicted under
subparagraph (C) and sentenced as a career offender, he has
else. Id., at 12. Nor does the Court mention that the “ `careful delibera-
tive practices of the Congress were set aside' ” for the 1986 omnibus crime
bill that included the 100-to-1 ratio, as part of a “rush to pass dramatic
drug legislation before the midterm elections.” D. Sklansky, Cocaine,
Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1294, and n. 55 (1996)
(Sklansky). Indeed, the “legislative history offers no explanation for the
selection of a ratio of 100:1,” save that it “was the highest ratio proposed.”
Id., at 1297. There is, by contrast, an extensive record of race-based
myths about crack cocaine that the media “branded onto the public mind
and the minds of legislators,” United States v. Clary, 846 F. Supp. 768, 783
(ED Mo. 1994), and that appear in the Congressional Record, see Sklansky
1291–1295, and nn. 49–60. Most egregiously, the Court barely references
the ratio's real-world impact (discussed in fra, at 497–498), and disregards
the fact that, “as the racial effects of mandatory minimums and the crack/
cocaine disparity became apparent, the [Congressional Black Caucus] came
together in unanimous and increasingly vocal opposition to the law.”
Forman 205. Bills to mitigate the disparity were introduced almost every
year from 1993 to 2009. Yet Congress did nothing until 2010.
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as: 593 U. S. 486 (2021)
497
Opinion of Sotomayor, J.
never had a chance to ask for a sentence that refects today's
underst
anding of the lesser severity of his crime. Absent
action from the political branches, he never will.
I
Section 841(b) provides three tiers of statutory “[p]enal-
ties” for federal drug offenses under § 841(a). As a baseline,
§ 841(b)(1)(C) specifes a maximum penalty of 20 years im-
prisonment, with no mandatory minimum. Sections 841(b)
(1)(A) and (B) then authorize enhanced penalty ranges, in-
cluding mandatory minimums, for those dealing in higher
quantities of narcotics.
As enacted in 1986, § 841(b) created a 100-to-1 ratio be-
tween the amounts of powder and crack cocaine necessary to
trigger the mandatory minimums in §§ 841(b)(1)(A) and (B).
Subparagraph (A)'s 10-year minimum was triggered by 5,000
grams of powder cocaine (about the weight of a gallon of
paint), but only 50 grams of crack cocaine (about half a stick
of butter). Subparagraph (B)'s 5-year minimum required
500 grams of powder (heavier than a football) but just fve
grams of crack (the weight of a nickel).
The United States Sentencing Commission (USSC) incor-
porated the 100-to-1 ratio into the Sentencing Guidelines.
The Guidelines include a “Drug Quantity Table,” which sets
“base offense level[s]” that correspond to various ranges of
weights for each drug type. USSC, Guidelines Manual
§ 2D1.1 (Nov. 2018) (USSG). A defendant's base offense
level, together with his criminal history, determines the
“Guidelines range” of sentences. The more drugs pos-
sessed, the higher the base offense level, and the higher the
Guidelines range. Because the drug quantity tables are
keyed to the statutory minimums, selling a given weight of
crack cocaine would lead to the same base offense level as
selling 100 times as much powder cocaine. Street-level
crack dealers could thus receive signifcantly longer sen-
tences than wholesale importers of powder cocaine.
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498 TERR
Y v. UNITED STATES
Opinion of Sotomayor, J.
Under the 1986 law, crack cocaine sentences were about 50
percent
longer than those for powder cocaine. USSC, Re-
port to the Congress: Cocaine and Federal Sentencing Policy
13 (May 2007) (2007 Report). Black people bore the brunt
of this disparity. Around 80 to 90 percent of those convicted
of crack offenses between 1992 and 2006 were Black, while
Black people made up only around 30 percent of powder co-
caine offenders in those same years. Id., at 16.
There was no meaningful policy justifcation for such un-
equal sentences. The 100-to-1 ratio “rested on assumptions
about the relative harmfulness of the two drugs and the rela-
tive prevalence of certain harmful conduct associated with
their use and distribution that . . . research and data no
longer support.” Kimbrough v. United States, 552 U. S. 85,
97 (2007) (internal quotation marks omitted). This was ob-
vious to the public, which came “to understand sentences
embodying the 100-to-1 ratio as refecting unjustifed race-
based differences.” Dorsey v. United States, 567 U. S. 260,
268 (2012).
The Sentencing Commission published detailed reports in
1995, 1997, 2002, and 2007 asking Congress to reduce the dis-
parity, which it found to be unjustifed standing alone, and
particularly unjustifed in light of its disparate impact. See
Kimbrough, 552 U. S., at 97–100. Each report “unanimously
and strongly urge[d] Congress to act promptly” to “[i]ncrease
the fve-year and ten-year statutory mandatory minimum
threshold quantities for crack cocaine offenses.” 2007 Re-
port 8.
II
Congress eventually responded with the Fair Sentencing
Act of 2010. 124 Stat. 2372. Section 2 of the Act increased
the amounts of crack cocaine necessary to trigger minimum
sentences, reducing the crack-to-powder ratio to 18 to 1.
§ 2(a), ibid. The Sentencing Commission, in turn, quickly
revised the drug quantity tables to refect that new ratio.
USSG App. C, Amdt. 748 (Nov. 2010). It later made those
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as: 593 U. S. 486 (2021)
499
Opinion of Sotomayor, J.
amendments retroactive, thus making reduced sentences
avai
lable to thousands of crack offenders who were serving
prison sentences based on unduly high Guidelines ranges.
USSG App. C, Amdt. 759 (Nov. 2011).
These amendments, however, had two principal shortcom-
ings. First, the Fair Sentencing Act's changes to the
mandatory minimums were not retroactive. Even if an of-
fender's new Guidelines range was below the applicable mini-
mum, the court could go no lower. Second, not all offenders
could move for reduced sentences. Such motions are avail-
able only to individuals whose original sentences were
“based on a sentencing range that has subsequently been
lowered by the Sentenci ng Commissi on. ” 18 U. S. C.
§ 3582(c)(2). Offenders whose Guidelines ranges were not
based on the drug quantity tables were ineligible, even if the
100-to-1 ratio clearly affected their actual sentence.
Take so-called “career offenders” like Terry. A defendant
is a career offender if he commits a felony “controlled sub-
stance offense” or “crime of violence” when he is over 18
and when he already has two prior such felony convictions.
USSG § 4B1.1(a). The offense level for career offenders is
based on the statutory maximum for their crime of convic-
tion, not the drug quantity tables. USSG § 4B1.1(b).
Terry possessed just 3.9 grams of crack. His Guidelines
range would normally have been about three to four years.
But Terry was sentenced as a career offender because of two
prior drug convictions committed when he was a teenager
and for which he spent a total of only 120 days in jail. That
enhancement caused Terry's Guidelines range to skyrocket
to about 15 to 20 years. He received a sentence of 188
months (at the bottom of the Guidelines range). Because
the Fair Sentenci ng Ac t and the fol low i ng Guidel i nes
amendments did not change their Guidelines ranges, ca-
reer offenders like Terry were categorically ineligible for re-
lief, regardless of the severity or circumstances of their
crimes.
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500 TERR
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Career offenders were not, however, free from the harsh
effec
ts of the 100-to-1 ratio. Prior to applying the career
offender enhancement, district courts still calculated the of-
fender's base offense level using the drug quantity tables.
That preenhancement base offense level is a signifcant indi-
cator of an offense's gravity, and thus of the sentence it mer-
its. A career offender with a higher base offense level
closer to the statutory minimum would likely receive a
harsher punishment than one with a lower base offense level
further from the minimum.
In some cases, the 100-to-1 ratio played an even more di-
rect role. Especially for less serious offenders, courts some-
times entirely departed from the career offender Guidelines
and instead sentenced defendants based on the more lenient
drug quantity tables.
2
But offenders were only eligible for
sentence reductions if retroactive amendments changed their
Guidelines range as “determined before consideration of any
departure . . . or any variance.” USSG § 1B1.10, comment.,
n. 1(A). Hence, even career offenders whose sentences were
based expressly on the 100-to-1 ratio in the drug quantity
tables could not obtain reduced sentences when that ratio
was retroactively lowered.
The law's assessment of these offenders' culpability radi-
cally changed with the Fair Sentencing Act. For example,
Terry's 3.9 grams of crack cocaine (less than the weight of
four paperclips) led to a preenhancement base offense level
of 20 and was just shy of the fve grams that triggered a 5-
year mandatory minimum. He would have received the
same base offense level for selling 390 grams of powder co-
caine (about the weight of a full can of soda). After the
Guidelines amendments, those 3.9 grams are nowhere near
the 28 grams that now trigger the mandatory minimum, and
2
This practice was common enough to give rise to a split among the
Courts of Appeals over whether such offenders were eligible for sentence
reductions. See, e. g., United States v. Munn, 595 F. 3d 183, 194–195 (CA4
2010); United States v. Sharkey, 543 F. 3d 1236, 1239 (CA10 2008).
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Cite
as: 593 U. S. 486 (2021)
501
Opinion of Sotomayor, J.
his preenhancement base offense level would be just 16, the
same
as for selling 70 grams of powder cocaine (about the
weight of two lightbulbs). His preenhancement Guidelines
range dropped from 41 to 51 months to 27 to 33 months.
In short, the law now treats Terry's offense as a far less
serious crime.
The career offender Guidelines, like all the Guidelines, are
merely advisory. See United States v. Booker, 543 U. S. 220,
246 (2005). Terry possessed a very small amount of crack
cocaine, and he was a teenager when he committed the two
prior drug offenses that made him a career offender. Free
of the arbitrary infuence of the 100-to-1 ratio, he would be a
much stronger candidate for a downward departure.
III
The First Step Act of 2018 partially flled the gaps left by
the Fair Sentencing Act. As the Court explains, everyone
with a pre-August 3, 2010, crack conviction under § 841(b)
(1)(A) or § 841(b)(1)(B), including career offenders, has a
“covered offense” and is eligible for resentencing. This cor-
rects the Fair Sentencing Act's frst shortcoming, as individ-
uals who would not be subject to the same minimums today
can now seek resentencing without those foors.
But, as the Court also explains, no one convicted under
§ 841(b)(1)(C) has a covered offense. The First Step Act
therefore only partly addresses the Fair Sentencing Act's
second shortcoming. While career offenders convicted
under subparagraph (A) or subparagraph (B) can now seek
resentencing, that door remains closed to career offenders
convicted under subparagraph (C).
This is no small injustice. Career offenders made up more
than half of the 2,387 defendants who obtained retroactive
sentence reductions in just the frst year of the First Step
Act's implementation. USSC, The First Step Act of 2018:
One Year of Implementation 44 (Aug. 2020). In part be-
cause there were so many career offenders who were pre-
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502 TERR
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Opinion of Sotomayor, J.
viously ineligible, the average sentence reduction under the
First
Step Act was almost six years. Id., at 43.
Between 2005 and 2010, around 15 percent of offenders
who possessed less than fve grams of crack were sentenced
as career offenders. USSC, Report to Congress: Impact of
the Fair Sentencing Act of 2010, p. A–32 (Aug. 2015). In
courts that permitted their motions before today's decision,
many such offenders obtained dramatically lower sentences
after the First Step Act. See App. to Reply Brief 1a–2a
(collecting cases). “Decisions like these, from courts that
have actually had to apply the statute, demonstrate that the
Fair Sentencing Act amendments have a meaningful effect
on the sentences that defendants receive under § 841(b)—
i ncludi ng for defendants sentenced under subsec ti on
(b)(1)(C)” as career offenders. Brief for Retired Federal
Judges et al. as Amici Curiae 15.
There is no apparent reason that career offenders sen-
tenced under subparagraph (C) should be left to serve out
sentences that were unduly infuenced by the 100-to-1 ratio.
Indeed, the bipartisan lead sponsors of the First Step Act
have urged this Court to hold that the Act “makes retroac-
tive relief broadly available to all individuals sentenced for
crack-cocaine offenses before the Fair Sentencing Act.”
Brief for Sen. Richard Durbin et al. as Amici Curiae 11.
Unfortunately, the text will not bear that reading. Fortu-
nately, Congress has numerous tools to right this injustice.
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