US v. Wirsing:
In 2007 Wirsing pleaded guilty to being a felon in possession of a firearm and
possessing with intent to distribute “approximately 16 grams” of crack.
However, in the plea agreement he stipulated that the amount of crack involved
was 60.135 grams. He was sentenced, as a career offender, to 188 months in
prison (plus a 120-month concurrent sentence for the gun). After the passage of
the First Step Act (“1SA”), Wirsing sought a reduction of his sentence under
the Act’s provisions making the provisions of the Fair Sentencing Act (“FSA”)
retroactive. While the Government agreed that Wirsing was eligible for a
reduction and that he should get a reduction down to the bottom of his new
Guideline range (which would mean immediate release), the district court denied
Wirsing’s motion because the amount of crack attributed to him in the
stipulation would not have reduced his Guideline range. Proceeding under 18 U.S.C.
3582(c)(2), the district court concluded Wirsing was not eligible for relief.
The Fourth Circuit unanimously
disagreed and reversed the district court in its first major pronouncement on
the 1SA/FSA. After the Government flip-flopped to arguing Wirsing was not
eligible (because relevant conduct), then flipped again to arguing he was
eligible, the court first concluded that 3582(c)(1), rather than (c)(2), was
the proper mechanism for processing 1SA/FSA claims. That was so because (c)(2)
is tied directly to Guideline changes, while (c)(1) is tied to specific statutory
authority to revisit sentences, as found in the 1SA. Then the court moved on to
the question of eligibility, adopting Wirsing’s position that the language of
the 1SA a person is eligible for a reduced sentence if “before August 3, 2010,
he committed a violation” of section 841 “the statutory penalties” for which “were
modified by” the FSA.
Congrats to the Defender office in the Northern District of WV on the win!
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