A federal judge last month told two men serving life sentences that her “hands are tied” and she cannot reduce their prison terms, even in the face of recent federal legislation addressing the historical disparities in punishment for cases involving crack cocaine.

U.S. District Court Judge Regina M. Rodriguez denied the resentencing requests from Lee Arthur Thompson and Alvin Hutchinson, who were convicted more than 15 years ago in a drug distribution scheme out of Adams County. Since their trials, Congress passed a pair of laws to reduce the longstanding imbalance between powder cocaine and crack cocaine offenses – including for those with existing convictions.

The change unquestionably applied to Thompson and Hutchinson. However, the complicating factor was the “grouping” of their drug sentences with their convictions for violating the Racketeer Influenced and Corrupt Organizations (RICO) Act. Their RICO sentences were tethered to the drug crimes, but the new sentencing laws do not cover RICO offenses.

Although some federal appeals courts have decided trial judges may still provide relief to defendants on non-covered crimes like RICO, the U.S. Court of Appeals for the 10th Circuit, based in Denver, has taken the opposite view. Consequently, Congress’ intervention into drug sentencing has more broadly benefitted defendants in some parts of the country, but not Thompson and Hutchinson.

“The Court recognizes that there is a circuit split on this issue,” Rodriguez wrote in a Sept. 25 order. “Under binding Tenth Circuit precedent, however, the Court’s hands are tied. Therefore, the Court must dismiss Defendants’ requests for reduction of their sentences.”

Weeks before her order, one of Thompson and Hutchinson’s co-defendants filed a petition with the U.S. Supreme Court asking it to decide whose interpretation of federal law is correct: the 10th Circuit and two other appellate courts that have agreed with it, or the three circuits that believe convictions not covered by the sentencing reforms are, nonetheless, eligible for reduction.

The federal government has until Nov. 13 to respond to the petition.

Thompson and Hutchinson were involved in an extensive drug distribution conspiracy out of the Alpine Rose Motel in Adams County. Jurors heard that Thompson and Hutchinson were at the top of the organization, directing the sale of crack cocaine over many months. Their activities even included throwing crack off a balcony on Mother’s Day for mothers at the motel to grab, and using a “big rock of crack” in lieu of an egg at an Easter egg hunt.

Federal authorities charged each man with a conspiracy to distribute more than 50 grams of cocaine and a RICO violation, among other offenses. Two additional men were their co-defendants, also with similar charges. Thompson and Hutchinson’s convictions were grouped, meaning a single offense level applied to their aggregate sentence and they received life in prison for both the drug conspiracy and RICO offenses.

A few years later, Congress enacted the Fair Sentencing Act. Congress’s intent was to reduce the sentencing disparity, which existed since 1986, that punished someone for a crack cocaine offense as harshly as someone with 100 times the amount of powder cocaine. Historically, defendants in crack cocaine cases were overwhelmingly Black, while cases involving powder cocaine had mostly White defendants.

The legislation reduced, but not eliminated, the discrepancy – effectively raising the amount of crack cocaine needed to sustain a harsher sentence. In 2018, Congress passed the First Step Act, which made the changes retroactive to previously convicted defendants. In response, Thompson and Hutchinson petitioned for a reduction of their lifetime punishment.

U.S. District Court Senior Judge Marcia S. Krieger acknowledged in April 2021 that the defendants, as Black men convicted of drug crimes, were the intended beneficiaries of the new legislation. The problem was that their RICO convictions, grouped into their life sentences, were not covered by the change in law.

She also doubted the revisions would do anything practically for the defendants. Prosecutors had charged them with distributing more than 50 grams of crack, which previously allowed for a life sentence. Now, the threshold for life is 280 grams, but, Krieger pointed out, the evidence at trial suggested the men distributed a lot more than that.

“Thus, it is clear to the Court that any recalculation,” she wrote, “would nevertheless result in a Guideline range that included life imprisonment.”

Last summer, the 10th Circuit reviewed the appeal of William L. Gladney, one of Thompson and Hutchinson’s co-defendants whose sentence-reduction request Krieger also denied in her order. The 10th Circuit concluded Krieger was correct that the RICO conviction was not eligible for a sentence reduction and, as a result, any relief to the lifetime drug conspiracy sentence would have no practical effect.

Although the court believed there “must” be a prohibition against reducing sentences for non-covered offenses that are grouped with drug crimes, the Chicago-based Seventh Circuit reached the opposite conclusion in 2020, finding nothing prohibited judges from reconsidering a punishment for convictions not covered by the recent sentencing reform laws.

In early September, Gladney’s lawyer petitioned the Supreme Court for intervention, arguing trial judges “struggle” with whether they can give relief to defendants whose sentences are grouped with non-covered offenses in the wake of the Fair Sentencing and First Step acts.

Rodriguez, addressing Thompson and Hutchinson’s request to reconsider Krieger’s prior order, acknowledged the petition pending in the nation’s highest court. But she conceded she was obligated to follow the 10th Circuit’s directive and uphold their life sentences.

The case is United States v. Thompson et al.