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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

 v.

TERRY THOMAS

No. 03 CR 902

Hon. Rebecca R. Pallmeyer 

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR 

REDUCTION OF SENTENCE PURSUANT TO THE RETROACTIVE 

APPLICATION OF THE FIRST STEP ACT

The United States of America, by and through its attorney, JOHN R. LAUSCH 

JR., United States Attorney for the Northern District of Illinois, respectfully submits 

this response to the defendant’s motion for a reduction of his criminal sentence 

following the retroactive application of the Fair Sentencing Act of 2010, Pub. L. 111-

220; §§ 2-3, 124 Stat. 2372, 2372 (2010), as set forth in the First Step Act of 2018, 

Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). As demonstrated below, 

Thomas is eligible for relief under the First Step Act. 

BACKGROUND

Defendant Terry Thomas is currently serving a 360-month sentence on his 

federal convictions for trafficking drugs in 1999. The defendant was charged in a 

second superseding indictment with conspiring to possess with intent to distribute in 

excess of five grams of crack cocaine and a detectable amount of heroin, in violation 

of Title 21, United States Code, Section 846 and Title 18, United States Code, Section 

2 (Count One) and possession with intent to distribute a detectable amount of heroin

and in excess of five grams of crack cocaine, in violation of Title 21, United States 

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Code, Section 841(a)(1) and Title 18, United States Code, Section 2 (Count Two).1

PSR at 1-2. The government timely filed a 21 U.S.C. § 851 notice of enhanced penalty. 

As such, the statutory mandatory minimum sentence on each count was ten years 

and the statutory maximum sentence was life imprisonment.

Following a jury trial, the defendant was convicted on both counts and, on 

October 21, 2005, this Court sentenced the defendant to a term of 360 months’ 

imprisonment. The Court determined that the defendant was a career offender 

pursuant to Guideline Section 4B1.1 which resulted in an adjusted offense level of 37, 

a criminal history category of VI, and an advisory range of 360 months to life 

imprisonment. After a trial, although the jury found the defendant guilty of 

distributing in excess of five grams of crack cocaine, the PSR found that Thomas was 

accountable for distributing in excess of 50 grams of cocaine base during the drug 

conspiracy. PSR at 6. However, likely because the defendant’s guideline range was 

driven by his classification as a career offender, the sentencing record does not reflect 

an express finding as to the drug quantity that Thomas was accountable for. 

On direct appeal, the defendant argued, among other things, that the Court 

misapplied the career offender guidelines. The Seventh Circuit affirmed this Court’s 

conclusion that the defendant’s offense level was 37 and, as such, received an advisory 

 1 Count One of the second superseding indictment originally charged in excess of 50 grams 

of crack cocaine, but was later amended to in excess of five grams of crack cocaine. PSR at 

2. 

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sentencing range of 360 months to life. R. 152; United States v. Thomas, 520 F.3d 

729 (7th Cir. 2008),

On July 18, 2008, the defendant filed his first motion for reduction of a 

sentence pursuant to Title 18, United States Code, Section 3582(c)(2). R. 155. This 

Court denied the defendant’s motion and the defendant appealed to the Seventh 

Circuit. R. 160 and 161. The Seventh Circuit affirmed the court’s denial of

defendant’s motion because, “his applicable guidelines range was driven entirely by 

his career-offender status and not by the crack cocaine guidelines, Amendment 706 

does not have the effect of lowering the appellant’s applicable guideline range.” R. 

174. On August 5, 2011, the defendant filed his second motion for reduction of 

sentence and an amended motion on October 19, 2011. R. 187 and R. 189. On March 

7, 2013, this Court denied the defendant’s motion for a reduction of sentence pursuant 

to Title 18, United States Code, Section 3582(c)(2). R. 200.

ARGUMENT

I. Thomas is eligible for relief under the First Step Act. 

On August 3, 2010, Congress enacted the Fair Sentencing Act (FSA), which 

reduced the disparity in the treatment of crack cocaine and powder cocaine offenses. 

See Fair Sentencing Act, Publ. L. No. 111-220, 124 Stat. 2372 (2010). Under the FSA, 

statutory penalties for drug offenses involving crack cocaine were reduced by 

increasing the quantity of crack cocaine necessary for increased statutory minimums 

and maximums. On December 21, 2018, the President signed the First Step Act into 

law. Section 404 of the First Step Act of 2018 makes retroactive the portions of the 

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FSA that lowered the threshold quantities triggering different statutory penalties for 

certain offenses involving crack cocaine.2

The First Step Act applies to “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 (Public Law 111-220; 124 Stat. 2372), that was committed before August 

3, 2010,” and provides that, in such cases, a court may “impose a reduced sentence as 

if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the 

covered offense was committed.” 

 2 That Section reads as follows:

Sec. 404. Application of Fair Sentencing Act

(a) Definition of Covered Offense – In this section, the term “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 (Public Law 111-220; 

124 Stat, 2372), that was committed before August 3, 2010.

(b) Defendants Previously Sentenced – A court that imposed a sentence for a covered 

offense may, on motion of the defendant, the Director of the Bureau of Prisons, the 

attorney for the government, or the court, impose a reduced sentence as if sections 

2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat, 2372), 

were in effect at the time the covered offense was committed.

(c) Limitations – No court shall entertain a motion made under this section to reduce 

a sentence if the sentence was previously imposed or previously reduced in 

accordance with the amendments made by section 2 or 3 of the Fair Sentencing 

Act of 2010 (Public Law 111-220; 124 Stat, 2372) or if a previous motion made 

under this section to reduce the sentence was, after the date of enactment of the 

Act, denied after a complete review of the motion on the merits. Nothing in this 

section shall be construed to require a court to reduce any sentence pursuant to 

this section. 

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Section 404(a) defines a “covered offense” as “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 (Public Law 111-220; 124 Stat. 2372), that was committed 

before August 3, 2010.” Section 404(c) makes clear that any sentence reduction is 

discretionary, stating, “[n]othing in this section shall be construed to require a court 

to reduce any sentence pursuant to this section.” A straightforward reading of § 404 

calls for the court to make two sequential determinations: first, whether it may 

impose a reduced sentence, and second, if so, what sentence would have been 

appropriate had the Fair Sentencing Act been in effect at the time the defendant 

committed his crime.

Section 404(b) authorizes a sentence reduction only if the court previously 

imposed a sentence for a “covered offense.” It has been and continues to be the 

government’s contention that the use of and definition of “covered offense” grounds 

the eligibility inquiry into the actual conduct involved in the defendant’s violation 

rather than the statute under which the defendant was convicted. However, because 

in this case the record does not reflect an express judicial finding as to the drug 

quantity, the government has limited its analysis to the amount of crack cocaine 

charged in the amended second superseding indictment or in excess of fives grams of 

crack cocaine. As such, the government contends that defendant is eligible for relief.

The second inquiry for the Court is what sentence would have been appropriate 

had the Fair Sentencing Act been in effect at the time the defendant committed his 

crime. Section 2 of the Fair Sentencing Act changed the triggering amount for a fiveCase: 1:03-cr-00902 Document #: 267 Filed: 10/02/19 Page 5 of 7 PageID #:1483
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year mandatory minimum sentence from five grams to 28 grams of cocaine base. See

21 U.S.C. § 841(b)(1)(B)(iii). Thus, if Sections 2 and 3 of the Fair Sentencing Act of 

2010 were in effect at the time the covered offense was committed, the defendant

would not have been subject to a five-year mandatory minimum sentence for the 

possession of in excess of five grams of cocaine base. Instead, the defendant would 

have been subject to the penalties found in 21 U.S.C. § 841(b)(1)(C) for which there is 

no mandatory minimum sentence. 

The defendant, however, would still face enhanced penalties pursuant to 21 

U.S.C. § 841(b)(1)(C), which raises his statutory maximum from 20 year to 30 years’

imprisonment. The defendant concedes that the First Step Act did not make 

retroactive any changes to enhanced penalties. Def. Br. at 12. 

In addition, nothing with respect to the defendant’s status as a career offender 

changes with the First Step Act and defendant concedes that the defendant was 

properly classified as a career offender at the time he was sentenced. Def. Br. at 4. 

However, because the defendant’s statutory maximum would change pursuant to the 

retroactive application of Sections 2 and 3 of the FSA, from life imprisonment (5-year 

mandatory minimum enhanced pursuant to a §851 notice) to 30 years’ imprisonment 

(no mandatory minimum sentence, but the statutory maximum is raised pursuant to 

an §851 notice), the defendant’s guideline range would also be altered. Specifically, 

Guideline § 4B1.1, dictates the defendant’s offense level would be 34 (offense 

statutory maximum of 25 years or more) as opposed to 37 (offense statutory maximum 

of life). An offense level 34 combined with a criminal history category VI, yields a 

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guideline range of 262 to 327 months’ imprisonment. Previously, at the time of the 

defendant’s sentencing, the defendant’s guideline range was 360 months to life 

imprisonment (offense level of 37 and a criminal history category IV). 

II. 18 U.S.C. § 3553(a) Factors.

The government respectfully requests that the Court consider a term of 

imprisonment within the revised Guideline range of 262 to 327 months’ 

imprisonment. In aggravation, the defendant was properly considered a career 

offender because of his long list of criminal convictions for controlled substance 

offenses as well as a prior gun offense. In mitigation, the defendant had a severely 

traumatic household, suffered abuse at the hands of his father, witnessed his father 

abuse his mother, and lived through his mother killing his father in retaliation for 

this abuse. 

CONCLUSION

The First Step Act applies to the defendant’s sentence because his statutory 

maximum and thus his offense level per career offender guidelines is altered. As such,

the government agrees that defendant’s motion for a reduction of sentence should be 

granted and contends that a term of imprisonment within the revised guideline range

is appropriate. 

Respectfully submitted,

JOHN R. LAUSCH JR.

United States Attorney

By: /s/ Katie M. Durick

KATIE M. DURICK

Assistant United States Attorney

219 South Dearborn Street, 5th Floor

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