United States District Court, W.D. North Carolina, Charlotte Division
Reidinger, United States District Judge.
MATTER is before the Court upon the Defendant's
Motion for Reduced Sentence under the First Step Act of 2018
1997 and 2003, the Defendant bought and sold large quantities
of crack cocaine in Charlotte, North Carolina. [Doc. 52:
Presentence Report (“PSR”) at ¶¶ 9-14].
Between February and March of 1997 alone, the Defendant
bought two kilograms of crack cocaine for $1, 000 per ounce.
[Id. at ¶ 13].
2003, the Defendant pled guilty pursuant to a written plea
agreement to one count of conspiring to possess with intent
to distribute 50 grams or more of cocaine base, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A) [Doc. 4: Bill
of Information; Doc. 5: Plea Agreement]. In the Plea
Agreement, the parties agreed to make a joint recommendation
to the Court that the offense involved at least 50 grams but
less than 150 grams of cocaine base. [Doc. 5: Plea Agreement
at ¶ 3(a); Doc. 65: Supp. PSR at 1]. Based on that drug
weight and the Government's filing of a Section 851
Notice of the Defendant's three prior felony
drug-trafficking convictions, the Defendant faced a mandatory
sentence of life imprisonment. [See Doc. 4: Section
851 Notice; Doc. 52: PSR at ¶ 59].
sentencing in June 2005, the Government withdrew its reliance
on two of the Defendant's three prior felony
drug-trafficking convictions, thereby reducing the statutory
sentencing range from mandatory life to 20 years to life. The
Court determined that the Defendant was a career
offender based on his prior North Carolina convictions for
one count of selling or delivering cocaine and two counts of
possessing with intent to manufacture sell and deliver
cocaine. [Doc. 52: PSR at ¶ 27]. Based on a total
offense level (TOL) of 34 and a criminal history category (CHC)
of VI, the advisory guidelines range was 262 to 327
months' imprisonment. [PSR: Doc. 52 at ¶ 60]. The
Court sentenced the Defendant to 262 months'
imprisonment, the low-end of the career-offender guideline
range and imposed a term of 10 years of supervised release.
Defendant now moves for relief under the First Step Act of
2018. [Doc. 68]. While conceding that the Defendant is
eligible for a sentence reduction, the Government argues that
the Court should exercise its discretion and deny the
Defendant's motion. Specifically, the Government contends
that the Defendant was sentenced based on the career-offender
guideline, and if the Fair Sentencing Act had been in effect
at the time of the Defendant's sentencing hearing, he
would have received the same sentence. [Doc. 71].
August 3, 2010, the Fair Sentencing Act of 2010, Pub. L. No.
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 “28 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. No. 115-391, 132 Stat. 5194.
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.” 132 Stat. at 5222. 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.” Id.
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.” Moreover, 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
determined that the Defendant is eligible for a reduction in
his sentence, the next step is to determine the extent to
which the sentence may, in the Court's
discretion, be reduced. This begins with an examination of
the Defendant's sentencing calculus “as if . . .
the Fair Sentencing Act of 2010 … were in effect at
the time the covered offense was committed.” 132 Stat.
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, the Court concludes that the
Defendant would have received the same sentence. The
Government only partially withdrew its § 851 Notice. The
Notice remained as to one prior conviction. Thus, the
Defendant's statutory maximum sentence remained at life.
Applying the career offender guideline, § 4B1.1, the
Defendant's base offense level remained at 37 and his
guidelines range remained at 262 to 327 months. Examining the
sentencing documents, it is without question that the
sentencing judge would have imposed precisely the same
sentence as he did even “if . . . the Fair Sentencing
Act of 2010 [had been] in effect at the time the covered
offense was committed.” 132 Stat. at 5222.
Defendant argues that, in considering a reduction of his
sentence, this Court should disregard his career-offender
designation in light of United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc), which was decided
after the Fair Sentencing Act became effective. Section
404(b) of the First Step Act, however, does not authorize
such a plenary resentencing. Rather, it authorizes the Court
to 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.” This provision
makes clear that Congress contemplated “only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Dillon v. United
States, 560 U.S. 817, 826 (2010) (concluding that
reduction of sentence under 18 U.S.C. § 3582(c)(2) does
not involve plenary resentencing, but only application of new
guideline range as dictated by Sentencing Commission). By its
plain terms, Section 404(b) does not contemplate that the
Court would apply all other legal ...