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

SUMMARY ORDER

Charles Michael Kee, proceeding pro se, appeals the district court's 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 court's 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 defendant's 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 Kee's arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.