Continuing Criminal Enterprise Is Not “Covered Offense” Under the First Step Act (Sometimes)

US v. Thomas: Thomas was convicted of money laundering and Continuing and Criminal Enterprise (CCE) in 1994 and sentenced to 420 months in prison on the CCE conviction. After the First Step Act was passed, Thomas filed a motion for a reduced sentence, arguing that he was eligible because the CCE count to which he pleaded guilty incorporated by reference other counts in the indictment related to the distribution of crack cocaine.  Indeed, at sentencing, Thomas was attributed 76 kilograms of crack as part of his relevant conduct. The district court denied the motion, concluding that a CCE conviction was not a “covered offense” under the First Step Act and therefore Thomas was not eligible for a reduced sentence.

On appeal, the Fourth Circuit affirmed the denial of Thomas’ motion. The court relied on the Supreme Court’s recent decision in Terry, which reversed prior Fourth Circuit precedent, which ties eligibility under the First Step Act to whether the statutory penalties faced by the defendant changed after the passage of the Fair Sentencing Act in 2010. The court concluded that while the statutory ranges for some of the underlying drug offenses in Thomas’ case had changed, his statutory range for his CCE conviction remained the 20-years-to-life range it was in 1994. Therefore, the particular CCE subsections under which Thomas was convicted were not covered offenses. That said, the court noted that other CCE provisions were tied to drug quantity in a way that might lead them to be covered offenses.