United States District Court, W.D. North Carolina, Asheville Division
MATTER is before the Court upon the Defendant's
Unopposed Motion for Amended Judgment under the First Step
Act of 2018 [Doc. 262]. The Government, through counsel,
consents to the requested relief.
September 2008, 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 February 2009, the
Court found that the offense involved between 50 grams and
150 grams of cocaine base, a quantity that triggered the
enhanced penalties of Section 841(b)(1)(A). [See PSR
at ¶¶ 29, 88]. Based on that drug quantity and the
filing of a Section 851 Notice by the Government, the
Defendant faced a statutory mandatory sentence of life
imprisonment. [Id. at ¶ 88]. The Court
calculated a guidelines range of 262 to 327 months under the
career-offender guideline. [Id. at ¶¶ 35,
89]. However, because the statutory minimum sentence of
imprisonment was greater than the maximum of the guidelines
range, the guidelines term of imprisonment became life.
See U.S.S.G. § 5G1.1(b). The Court then
departed downward, upon the Government's motion based on
the Defendant's substantial assistance, and imposed a
sentence of 262 months' imprisonment. [See Doc.
86: Judgment at 2].
Government then filed a Rule 35 motion after sentencing based
on the Defendant's continued substantial assistance.
[Doc. 100]. The Court granted the Government's motion and
accepted its recommendation to reduce the Defendant's
sentence “by 34 months” [see Doc. 100 at
2] from 262 months to 228 months [Docs. 102 at 1, 108 at 2].
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.” The 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 Section 841(b)(1)(A); and those statutory
penalties were “modified by Section 2 . . . of the Fair
Sentencing Act.” The 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 2018.
the Defendant is eligible for relief, this Court has the
discretion under Section 404(b) to “impose a reduced
sentence” in accordance with Section 841(b)(1)(B)'s
statutory penalties, which provide a mandatory minimum term
of ten years' incarceration and a maximum term of life in
cases where the Government has filed a Section 851 Notice of
prior conviction. Having determined that the Defendant
qualifies for and is entitled to a reduction in his sentence,
the question becomes what reduction is appropriate.
Defendant's counsel undertakes some remarkable
mathematical calisthenics to argue that the facts of this
case call for a sentence far shorter than the period the
Defendant has already served. Those arguments, however, are
founded upon modified versions of the calculation called for
in U.S.S.G. § 1B1.10 n.3 (“Note 3”) to apply
to motions pursuant to 18 U.S.C. § 3582(c)(2).
Defendant's counsel, however, argues that this is not a
motion pursuant to that section, but rather a motion only
pursuant to Section 404(b) of the First Step Act. [Doc. 262].
More importantly, there are great difficulties in applying
the Note 3 formula to the facts of this case, given that the
Defendant was originally facing a guidelines range of life.
The Defendant employed the Note 3 formula using the
assumption that a life sentence is a sentence of 540 months.
Nowhere do the Guidelines or any statute dictate or even
suggest this number.However, when adjusting these variables in
the formula, the results range between 76 months and 210
months. As a result, the formula and the Defendant's
arithmetic (though interesting) is of no assistance to the
Court in formulating an appropriate sentence.
404(b) of the First Step Act dictates that the sentencing
court may fashion a “sentence as if sections 2 and 3 of
the First Sentencing Act of 2010 . . . were in effect at the
time the covered offense was committed.” Applying that
principle here, the Defendant's Section 851 Notice would
have yielded a statutory sentencing range of ten years to
life as opposed to mandatory life. See 21 U.S.C.
§ 841(b). Therefore, as a career offender, the
Defendant's base offense level (BOL) would then have been
37. U.S.S.G. § 4B1.1(b). The Defendant was allowed a
three-level reduction for acceptance of responsibility, thus
yielding a retroactive total offense level (TOL) of 34. This
taken with the Defendant's criminal history category
(CHC) of VI renders a guideline range of 262 to 327 months
(precisely what was calculated for the Defendant at his
sentencing except for his Section 851 Notice).
original sentencing, the Defendant was allowed a downward
departure pursuant to U.S.S.G. § 5K1.1. It is difficult
to assess the degree of that departure because it was
expressed only in terms of the removal of the mandatory
minimum of life arising from the Section 851
Notice. The language of the Government's
departure motion, however, indicates that the Defendant's
assistance was substantial, yet relatively ordinary when
compared to others receiving such reductions. Based thereon,
the Court finds that the assistance expressed in the
Government's motion is such that it warranted a downward
departure the equivalent of approximately three to four
offense levels. Thus, the Defendant's offense level for
the purposes of sentencing would have been 30 or 31. That
taken with the Defendant's CHC of VI would have made the
Defendant's sentencing range to be somewhere between 168
to 235 months. In keeping with the sentencing court's
decision to sentence the Defendant at the low end of the
applicable guidelines range, this would have resulted in a
sentence of somewhere between 168 and 188
months. Subsequent to his sentencing, the
Defendant cooperated further and received a reduction of 34
months pursuant to Rule 35. There is no indication in the
Government's motion as to how the Government arrived upon
this 34-month figure. Presumably it is proportionately
related to the sentence the Defendant was then serving (262
months). A proportionate reduction from a 188-month sentence
would have allowed for an additional reduction of 24 months.
Taking all of this into account, the Court determines that
looking back to what sentence the Defendant would have
received if the Fair Sentencing Act of 2010 had been in
effect at the Defendant's original sentencing in 2009, he
would have received a sentence of somewhere between 134
months (168 minus 34) and 164 months (188 minus 24).
the Court must determine, in its discretion, whether the
Defendant is deserving of such a reduction. The
Defendant's conduct while in the Bureau of Prisons has
been relatively good, though not perfect. The Supplemental
Presentence Report indicates that the Defendant has received
only four minor disciplinary actions while in custody, and
three of those infractions occurred on the same day in 2014.
[See Doc. 263: Supp. PSR at 3]. Additionally, the
Defendant has successfully completed numerous educational
programs and work assignments. [Id.]. No. other
facts are present before the Court that would indicate that
the Defendant should be denied the benefit of Section
404(b). With good time earned, the Defendant
currently has a total of 148 months of BOP credited time.
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 shall
be sentenced to the statutory minimum term of supervised
release of eight (8) years.
IS, THEREFORE, ORDERED that the Defendant's
Unopposed Motion for Amended Judgment under the First Step
Act of 2018 [Doc. 262] is GRANTED, and the
Defendant's sentence is hereby reduced to Time Served
plus ten (10) days, followed by eight (8) years of supervised
release. All other terms and conditions of the
Defendant's Amended Judgment [Doc. 108] shall remain in
full force and effect.
Clerk is respectfully directed to prepare an Amended Judgment