US v. Venable:
Venable pleaded guilty to distributing crack and being a felon in possession of
a firearm in 1997. He finished up his 110-month sentence (later reduced to 92
months) and was released on supervised release, which was subsequently revoked.
He was sentenced to 15 months in prison, with no additional period of
supervision. While serving that sentence (after finishing a related state sentence),
Venable moved for a reduction of his original sentence under the First Step Act
(“1SA”), which made retroactive the provisions of the Fair Sentencing Act (“FSA”)
with regards to crack cocaine. The district court denied the motion, holding
that as a matter of law someone serving a sentence for a supervised release
revocation was not eligible for such a reduction.
The Fourth Circuit reversed and
remanded the matter to the district court. Applying the “unitary” theory of
sentencing, the court concluded that Venable’s supervised release revocation
sentence was part of his original sentence imposed in 1997 for (in part)
distribution of crack cocaine. As a result, he had been convicted of a “covered
offense” under the 1SA and could take advantage of the provisions of the FSA.
A practice tip – the Government in its
initial brief argued that Venable wasn’t eligible for a reduction. Then, the “day
before oral argument,” the Government filed a letter with the court stating
that position was incorrect, but that Venable should be denied relief because
his argument had changed slightly and it should be reviewed for plain error, a
standard Venable could not meet. The court shot the Government down, concluding
that the Government had engaged in “procedural ambush” and not applying plain
error review.
Congrats to the Defender office in the Western District of Virginia on the win!
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