United States District Court, W.D. North Carolina, Asheville Division
REIDINGER, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon the Defendant's
Unopposed Motion for Amended Judgment under the First Step
Act of 2018 [Doc. 776]. The Government, through counsel,
consents to the requested relief.
February 2009, the Defendant pled guilty to one count of
conspiracy to possess with the intent to distribute a
quantity of cocaine base, in violation of 21 U.S.C.
§§ 841(a), 846. At sentencing in August 2009, the
Court accepted the parties' stipulation that the offense
involved at least 50 grams but less than 150 grams of cocaine
base, a quantity that triggered the enhanced penalties of
§ 841(b)(1)(A). [See PSR at ¶¶ 34,
126]. Based on that finding, the Defendant faced a statutory
minimum sentence of ten years, a statutory maximum of life,
and a minimum of five years of supervised release.
[Id. at ¶¶ 126, 129]. The Court calculated
a guidelines range of 262 to 327 months under the
career-offender guideline. [Id. at ¶¶
40-42, 127]. The Court then departed downward to a sentence
of 188 months and imposed the required five-year term of
supervised release. [See Doc. 307: Judgment at 2-3;
Doc. 477: Amended Judgment at 2-3].
August 3, 2010, the Fair Sentencing Act of 2010, Pub. L.
111-220, went into effect. Section 2 of the Act increased the
quantity of cocaine base required to trigger the enhanced
penalties of Section 841. Specifically, it raised the
(b)(1)(A) threshold from “50 grams” to “280
grams” and the (b)(1)(B) threshold from “5
grams” to “50 grams.” Section 3 eliminated
the mandatory minimum for simple possession of cocaine base
under 21 U.S.C. § 844(a). Congress did not apply these
changes retroactively to defendants sentenced before the
Act's passage. Accordingly, the Defendant could not
obtain relief under the Fair Sentencing Act.
December 21, 2018, the President signed into law the First
Step Act of 2018, Pub. L. 115-135. Section 404 of the Act
gives retroactive effect to the changes made by Sections 2
and 3 of the Fair Sentencing Act of 2010. 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(b) then
provides that “[a] court that imposed a sentence for a
covered offense may . . . impose a reduced sentence as if
Section 2 or 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.”
Defendant is eligible for relief under the First Step Act
because he was convicted of a “covered offense”
under Section 404(a)'s definition. His offense was
committed before August 3, 2010; he was subjected to the
enhanced statutory penalties under § 841(b)(1)(A); and
those statutory penalties were “modified by Section 2 .
. . of the Fair Sentencing Act.” Because the Defendant
is eligible for relief, this Court has the discretion under
Section 404(b) to “impose a reduced sentence” in
accordance with § 841(b)(1)(B)'s statutory
penalties, which provide a mandatory minimum term of five
years' incarceration and a forty-year maximum term, along
with a four-year minimum term of supervised release.
the Sentencing Guidelines as they existed at the time of the
Defendant's sentencing, but modifying any calculation of
the offense level as though Sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time that the
Defendant committed the offense, reduces the Defendant's
total offense level from 34 to 31. U.S.S.G. § 4B1.1(b),
(c). Based thereon, his Guidelines range is reduced from
262-337 months to 188-235 months. See U.S.S.G.
§ 5A (sentencing table for offense level 31 and criminal
history category VI). This Court previously departed downward
the equivalent of three offense levels and imposed a sentence
of 188 months, the low end of the modified sentencing range
after the departure. The low end of the sentencing range
three offense levels below the now-lowered Guidelines range
under the First Step Act would yield a sentence of 140
Defendant's sentence has not been previously reduced by
the operation of Sections 2 or 3 of the Fair Sentencing Act
of 2010, and no previous motion has been made by the
Defendant pursuant to Section 404 of the First Step Act of
the Court notes that the Supplemental Presentence Report
indicates that the Defendant has received only one minor
disciplinary action while in custody. [See Doc. 777:
Supp. PSR at 2]. The Defendant, however, has also
successfully completed numerous educational programs and work
assignments. With good time earned, he currently has a total
of 139 months of BOP credited time. [Id.].
these reasons, the Court concludes that the Defendant is
eligible for relief in the form of a reduced sentence
pursuant to the First Step Act of 2018 and 18 U.S.C. §
3582(c)(1)(B) (allowing the court to modify a sentence
“to the extent otherwise expressly permitted by
on the entire record of the case, including the
Defendant's disciplinary record with the BOP, the Court,
in its discretion reduces the Defendant's sentence to a
period of time served plus ten (10) days. The Defendant's
term of supervised release shall be reduced to a period of
four (4) years.
IS, THEREFORE, ORDERED that the Defendant's
Unopposed Motion for Amended Judgment under the First Step
Act of 2018 [Doc. 776] is GRANTED, and the
Defendant's sentence is hereby reduced to Time Served
plus ten (10) days and the term of supervised release is
hereby reduced to four (4) years. All other terms and
conditions of the Defendant's Amended Judgment [Doc. 477]
shall remain in full force and effect.
Clerk is respectfully directed to prepare an Amended Judgment
in accordance with this Order.
Clerk is further directed to provide copies of this Order to
the Defendant, counsel for the Defendant, the United States
Attorney, the United States Marshals Service, the United