United States District Court, E.D. North Carolina, Northern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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.
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.
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. On June 5, 2019,
the court granted the motion by order and judgment entered
separately. The court memorializes herein its reasoning for
Sentencing Act and First Step Act
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).
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.
Scope of Relief Under First Step Act
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.
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"
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
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 ...