Ervin Thornton, II v. United States

Section 404 of the First Step Act opened a pathway to sentencing relief for people convicted of crack cocaine offenses prior to August 3, 2010. The act’s text limits relief to those individuals convicted of a “covered offense.” And “covered offense” 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.” In the mine run of drug distribution cases, it isn’t hard to determine the statutory penalty: the indictment and verdict form will contain drug type and quantity. But what about a pre-Apprendi case, before drug type and quantity became elements of the substantive offense? In those cases, the indictment and verdict form may, as here, say nothing helpful about drug type and quantity. This case addresses the interplay between Apprendi and Section 404 of the First Step Act, an issue that has split the circuits. Succinctly stated, the question presented is: in a pre-Apprendi case, how does a district court decide a person’s statute of conviction and thus determine § 404 eligibility?