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United States v. Jones

United States District Court, E.D. North Carolina, Northern Division

June 11, 2019

UNITED STATES OF AMERICA,
v.
FRANKLIN SHURON JONES, Defendant.

          MEMORANDUM OPINION

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This matter came before the court on defendant's motions for reduction of sentence and to equalize the crack cocaine as used to sentence defendant (DEI 15, 116, 118). On June 5, 2019, the court granted the motions by order and judgment entered separately. The court memorializes herein its reasoning for this decision.

         BACKGROUND

         On May 15, 2006, defendant pleaded guilty to two counts of distributing more than 5 grams of cocaine base and one count of distributing more than 5 grams of cocaine base and a quantity of cocaine, all in violation of 21 U.S.C. § 841(a)(1). At the time defendant committed the offenses, the statutory sentencing range for distributing 5 grams or more of cocaine base was 5 to 40 years' imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii) (2006). At sentencing, the court found defendant responsible for distributing 58.6 grams of cocaine base and 19.9 grams of cocaine, which together produced a base offense level of 32 under the United States Sentencing Guidelines. The court also found defendant qualified for the career offender enhancement, which increased his base offense level to 34. After applying a three-level reduction for acceptance of responsibility, the court determined the final offense level was 31. With a criminal history category VI, defendant's Guidelines range was 188 to 235 months' imprisonment.

         On January 29, 2007, the court sentenced defendant to concurrent terms of 188 months' imprisonment and five years supervised release on all counts. Defendant filed the instant motion to reduce sentence pursuant to the First Step Act on March 19, 2019, which was fully briefed.[1] On June 5, 2019, the court granted the motion by order and judgment entered separately. The court memorializes herein its reasoning for this decision.

         DISCUSSION

         A. Fair Sentencing Act and First Step Act

         On August 3, 2010, Congress passed and the President signed into law the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The Fair Sentencing Act increased the threshold quantity of cocaine base that triggers § 841(b)(1)(A)(iii)'s 10-year to life term from SO grams to 280 grams, and the quantity for § 841(b)(1)(B)(iii)'s 5 to 40-year term from 5 grams to 28 grams (but under 280 grams). Fair Sentencing Act § 2(a), 124 Stat. at 2372. The statute also eliminated the mandatory minimum sentence for possession of a quantity of cocaine. Id. § 3. The Fair Sentencing Act, however, did not apply retroactively to defendants sentenced before August 3, 2010. See United States v. Black, 737 F.3d 280, 287 (4th Cir. 2013); United States v. Bullard, 645 F.3d 237, 249 (4th Cir. 2011).

         The First Step Act of 2018 ("First Step Act") makes the provisions of the Fair Sentencing Act described above retroactive. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222. Section 404 of the First Step Act provides that "[a] court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed." Id. § 404(b). The term "covered offense" means "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act. . . that was committed before August 3, 2010." Id. § 404(a). The court has discretion to deny relief under the Act even if the defendant meets the eligibility criteria. Id. § 404(c). Finally, the court may not impose a reduced sentence for defendants whose sentences previously were imposed or reduced in accordance with the Fair Sentencing Act, or if the defendant previously moved for relief under the First Step Act and the court denied motion on the merits. Id.

         B. Scope of Relief Under First Step Act

         The court begins by identifying the appropriate scope of relief available under the First Step Act. Defendant argues the First Step Act permits plenary resentencing, and asks the court to set this matter for a full resentencing hearing. If the court permits full resentencing, defendant would be able to contest his career offender designation and other previously-made Guidelines determinations that are unaffected by the First Step Act or the Fair Sentencing Act.

         Pursuant to 18 U.S.C. § 3582(c), a district court "may not modify a term of imprisonment once it has been imposed except[, ]" as relevant here, "to the extent otherwise expressly permitted by statute." § 3582(c)(1)(B). The First Step Act permits the court to impose a "reduced sentence" and thus "modify" the term of imprisonment under § 3582(c)(1)(B), but it does not "expressly permit" full resentencing. See id And the phrase "impose a reduced sentence" suggests a limited proceeding in which the court "reduces" the sentence by amending the judgment of conviction. Cf Dillon v. United States, 560 U.S. 817, 825-26 (2010) (holding proceedings under § 3582(c)(2) are "not... plenary resentencing proceeding[s]" where § 3582(c)(2) provides authority only to "'modify a term of imprisonment' by giving courts the power to 'reduce' an otherwise final sentence" (alterations omitted)).

         The United States Supreme Court's interpretation of Rule 35 of the Federal Rules of Criminal Procedure supports this interpretation. Rule 35 provides that the court "may reduce a sentence" upon the government's motion for sentence reduction based on defendant's substantial assistance to the government. Fed. R. Crim. P. 35(b)(1)-(2). Section 3582(c)(1)(B) also provides statutory authority for Rule 35 sentence reductions: "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by . . . Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). Similar to the First Step Act, Rule 35 generally provides the court "may reduce a sentence" but it does not "expressly permit" full resentencing. Compare First Step Act § 404(b), 132 Stat. at 5222 (providing the court "may impose a reduced sentence").

         In Dillon, the Supreme Court noted that Rule 35 does not require a full resentencing proceeding with the defendant present. See 560 U.S. at 827-828. As the Court explained, Rule 43 of the Federal Rules of Criminal Procedure requires that a defendant be present at "sentencing" but expressly "excludes from that requirement proceedings that 'involv[e] the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c),' . . . Rule 43 therefore sets the proceedings authorized by § 3582(c)(2) and Rule 35 apart from other sentencing proceedings." Id. at 828 (quoting Fed. R. Crim. P. 43(b)(4)). The same reasoning applies to First Step Act motions brought pursuant to 18 U.S.C. § 3582(c)(1)(B), particularly where the First Step Act does not expressly authorize plenary resentencing. See ...


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