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Sentencing Guidelines – First Step Act

7th Circuit Court of Appeals

Case Name: United States of America v. Olaitan Fowowe

Case No.: 20-3197

Officials: SYKES, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Focus: Sentencing Guidelines – First Step Act

In 2009, defendant-appellant Olaitan Fowowe was sentenced for a conviction for conspiracy to distribute crack cocaine. The following year, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, which prospectively reduced the amount and kind of punishment for crack cocaine convictions like Fowowe’s. Fowowe—sentenced well before the Fair Sentencing Act’s August 3, 2010 enactment—was ineligible for reduced sentencing under the Fair Sentencing Act.

Despite this initial ineligibility, eight years later, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, created an avenue for people, like Fowowe, sentenced before August 3, 2010, to seek retroactive application of the Fair Sentencing Act. Section 404(b) of the First Step Act authorizes—but does not require—district courts to reduce the punishment for a crack offense that occurred prior to August 3, 2010, with the Fair Sentencing Act’s shorter sentences.

In federal district court, Fowowe requested a reduced prison sentence under § 404(b) of the First Step Act to no avail. On appeal, Fowowe now argues the district court’s evaluation of his request was deficient because the court failed to apply a Seventh Circuit decision that post-dated his initial sentencing by more than eleven years. To address Fowowe’s argument, we must resolve a legal issue of first impression in this Circuit: Does § 404(b) authorize or require a district court to apply a judicial decision issued after the defendant was initially sentenced? This question is one narrow issue within a broader, emerging circuit split on the parameters of district court § 404(b) motion evaluation. We hold that § 404(b) authorizes but does not require district courts to apply an intervening judicial decision in evaluating First Step Act motions. Given this, we conclude the district court did not abuse its discretion in declining to recalculate Fowowe’s sentencing range. We now affirm.


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Derek A Hawkins is Corporate Counsel, at Salesforce.

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