United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court upon motion of the
defendant through counsel, for a reduction of sentence based
on the First Step Act of 2018, (Doc. No. 150), to which the
defendant pled guilty to possessing with intent to distribute
at least 5 grams of cocaine base (Count 1ss) and assaulting a
government official with a deadly weapon (Count 2ss). (Doc.
No. 94: Judgment at 1). Based on the career offender
guideline and Count One's 40-year maximum sentence, the
advisory guideline range was 188 to 235 months'
imprisonment. (Doc. No. 151: Supplemental Presentence Report
(PSR) Supplement at 1). The Court sentenced the defendant at
the high end of that range, finding it “barely enough
to accomplish the sentencing goals while promoting respect
for the law and protecting the public.” (Doc. No. 110:
Sent. Hr'g Tr. at 39; Doc. No. 94: Judgment at 2).
the First Step Act, the maximum sentence for Count One would
fall to 20 years, reducing the advisory guideline range to
151 to 188 months. (Doc. No. 151: PSR Supplement at 2).
However, Sections 404(b) and (c) of the Act specify that a
court “may, ” but is not required to, impose a
reduced sentence as if the Fair Sentencing Act of 2010 had
been in place at the time of the original offense was
committed. First Step Act of 2018, Pub. L. 115-135 (2018).
Court found at the original sentencing hearing that the
defendant's criminal history category of VI, based on
criminal history points as well as the career offender
guideline, was understated because many of his violent crimes
did not score under the guidelines. (Doc. No. 110: Sent.
Hr'g Tr. at 36). His adjudication as delinquent at age 13
for robbery was followed by another delinquent adjudication
for larceny and resisting police, and another for aiding and
abetting store breaking. (Doc. No. 96: PSR at 7-9). At age 15
he was sentenced as an adult to 14 years' imprisonment
for consolidated armed robberies, later having his
conditional release revoked and then escaping while on work
release by stealing a car. (Id. at 11). He has also
been convicted of assaulting a female and a state correction
officer attempting to arrest him for the escape.
(Id. at 10-11). The defendant received the maximum
sentence for violating 18 U.S.C. §922(g)(1),
(Id. at 12), which involved the incredibly violent
conduct of brandishing a pistol at a rival drug dealer's
girlfriend and her 9 year old son, tying her up, and stealing
money from a safe, as well as invading an apartment with a
semi-automatic rifle, duct-taping the occupants, and stealing
money, (Doc. No. 110: Sent. Hr'g Tr. at 37-38; No.
3:93-cr-254, Doc. No. 79: PSR at 3-4).
supervised release in that case was later revoked for
possessing cocaine with the intent to sell and deliver, which
was the genesis of this one. (No. 3:93- cr-254, Doc. No. 78:
Revocation Judgment). Local police arrested the defendant for
selling crack to a confidential informant and allowed him to
cooperate by setting up another drug transaction.
(Id. at 4). Instead of completing the deal, the
defendant communicated to the police that he was being
stabbed and fled from the location. (Id.; Doc. No.
110: Sent. Hr'g at 33). After approximately 3 months, the
United States Marshal Service found where the defendant was
working and attempted to arrest him when he drove in. (Doc.
No. 96: PSR at 4). As law enforcement surrounded his SUV, the
defendant drove in reverse over a curb and handicapped
parking sign, down an embankment, hitting a tree.
(Id. at 5). He then attempted to accelerate forward
directly at a deputy marshal, but the SUV became stuck on the
sign. (Id.). The conduct described above illustrates
why the Court found 188 months insufficient to accomplish the
goals of sentencing in 18 U.S.C. § 3553(a) at the
original sentencing hearing.
instant motion for sentence reduction relates no
post-sentencing mitigation evidence, but rather points to the
inequity of sentences prior to the Fair Sentencing Act of
2010. (Doc. No. 150: Motion at 6). The defendant's
argument would be stronger if this matter involved a simple
non-violent drug offense. The Court's overriding concern
at the original sentencing hearing was the protection of the
public. (Doc. No. 110: Sent. Hr'g at 38). Although PSR
Supplement describes laudable participation in educational
programs while incarcerated, it also documents disciplinary
actions for possessing an unauthorized item in 2012,
possessing a hazardous tool in 2016, and fighting with
another person in 2018. (Doc. No. 151 at 2-3). That dangerous
conduct is similar to infractions during his previous federal
imprisonment of fighting and possessing a dangerous weapon.
(Doc. No. 96: PSR at 12). Accordingly, the Court finds that
the defendant remains a significant threat to public safety,
requiring a sentence of 235 months' imprisonment to
achieve the goals in § 3553(a). Therefore, the Court
declines to exercise its discretion under the Act to reduce
the defendant's sentence.
IS, THEREFORE, ORDERED that the defendant's
motion, (Doc. No. 150), is DENIED.
Clerk is directed to certify copies of this Order to the
defendant, counsel for the defendant, the United States
Attorney, the United States Marshals ...