UNITED STATES v. Charles Michael Kee, aka O.G. Mike, Defendant-Appellant. (2021)

United States Court of Appeals, Second Circuit.2021-06-23No. 20-2156-cr

Summary · law.co

Holding. The court affirmed the district court's order denying the sentence reduction motion because Kee's racketeering conviction was not a covered offense under the First Step Act, as the racketeering and money laundering statutes under which he was convicted were not among those whose penalties were modified by the Fair Sentencing Act.

Charles Michael Kee sought a sentence reduction under the First Step Act of 2018, arguing that his racketeering conviction qualified because one of the predicate acts involved crack cocaine distribution. The district court denied his motion, finding that his offense was not a "covered offense" under the First Step Act. Kee appealed, claiming that the crack cocaine distribution element should trigger First Step Act eligibility.

The appellate court affirmed the denial of Kee's motion. Although the court acknowledged a recent panel decision addressing crack cocaine distribution convictions, it did not need to rely on that precedent because Kee's conviction and sentence were based on racketeering and money laundering statutes, not on the drug distribution statute. The Fair Sentencing Act of 2010 did not modify the penalties for racketeering offenses, so Kee's conviction fell outside the scope of statutes eligible for First Step Act relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a racketeering conviction qualifies as a covered offense under the First Step Act when a predicate act involved crack cocaine distribution
Whether the statute of conviction or the defendant's underlying conduct determines covered offense status
Whether a defendant sentenced under racketeering statutes can seek relief based on modified penalties for a predicate offense statute

Procedural posture

Kee appealed the district court's denial of his motion for a sentence reduction under the First Step Act.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Charles Michael Kee, proceeding pro se, appeals the district courts order denying his motion for a sentence reduction pursuant to the First Step Act of 2018. Kee was convicted of a racketeering offense pursuant to 18 U.S.C. § 1962(c) (“Count One”), and argued that one of the racketeering acts, distribution of crack cocaine under 21 U.S.C. § 841(b)(1)(C), qualified as a covered offense under the First Step Act. The district court denied the motion, having concluded that his sentence did not involve a covered offense under the First Step Act. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review the district courts order de novo. See United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020). The First Step Act provides that a court may reduce a sentence for a “covered offense” and 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 that was committed before August 3, 2010.” Pub. L. No. 115-391 § 404(a), (b). To determine if an offense is a “covered offense” requires courts to look to “the statute under which a defendant was convicted, not the defendants actual conduct.” United States v. Davis, 961 F.3d 181, 187, 191 (2d Cir. 2020). A panel of this Court very recently held that convictions under Section 841(b)(1)(C) are not “covered offenses,” United States v. Young, 998 F.3d 43, 46–47, 52–55 (2d Cir. 2021), even though that issue was (and remains) pending before the Supreme Court in Terry v. United States, No. 20-5904. Regardless, we need not rely on Young to resolve this appeal because Kee was convicted and sentenced under Sections 1962(c) and 1963(a), not Section 841(b)(1)(C). The statutory penalties for this conviction were not modified by the Fair Sentencing Act.

“[T]he First Step Act provides courts with authority to reduce sentences only if they were imposed for violations of a covered offense.” United States v. Fletcher, 997 F.3d 95, 97 (2d Cir. 2021) (internal quotation marks omitted). Kee was not convicted under any statute modified by the Fair Sentencing Act. Nor was Kee sentenced based upon the statutory range for Section 841(b); although distribution of crack cocaine formed one of the racketeering acts, Section 1963 “independently establishes” his penalty range. Id. Accordingly, his racketeering conviction was not a covered offense.

We have considered the remainder of Kees arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.