United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon the Defendant's
Motion for Amended Judgment under the First Step Act of 2018
December 2005, the Defendant pled guilty to one count of
conspiracy to possess with the intent to distribute at least
50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a) and 846. At sentencing in July 2006, the
Court found that the offense involved at least 150 grams but
less than 500 grams of cocaine base, a quantity that
triggered the enhanced penalties of § 841(b)(1)(A).
[See Doc. 166: PSR at ¶¶ 3, 49]. Based on
that finding, the Defendant faced a statutory minimum
sentence of ten years, a statutory maximum of life, and a
minimum of five years of supervised release. [Id. at
¶¶ 120, 123]. The Court calculated a guidelines
range of 262 to 327 months under the career-offender
guideline, based on a total offense level (TOL) of 34 and a
criminal history category (CHC) of VI. [Id. at
¶¶ 55, 121]. The Court granted the Government
motion for a downward departure under U.S.S.G. § 5K1.1
[Doc. 94] and reduced the Defendant's CHC from a VI to a
IV, resulting in a revised sentencing range of 210 to 262
months. The Court then imposed a sentence of 210 months along
with a three-year term of supervised release. [See
Doc. 98: Judgment at 2-3].
Defendant now moves for relief under the First Step Act of
2018. [Doc. 196]. The Government agrees that the Defendant is
eligible for sentencing relief but requests that the Court
exercise its discretion to deny the Defendant's motion
because of his extensive criminal history and his consistent
misconduct while in the Bureau of Prisons. [Doc. 198].
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, reduces the Defendant's
total offense level from 34 to 31. U.S.S.G. § 4B1.1(b),
(c). Based thereon, his Guidelines range is reduced from
262-327 months to 188-235 months. See U.S.S.G.
§ 5A (sentencing table for offense level 31 and criminal
history category VI). This Court previously departed downward
the equivalent of two criminal history categories and imposed
a sentence of 210 months, the low end of the modified
sentencing range after the departure. Applying that same departure
now, the sentencing range two CHC levels below the
now-lowered Guidelines range under the First Step Act (TOL
31/CHC IV) would yield a modified sentencing range of 151 to
Defendant argues that the appropriate sentence is a matter of
mathematical calculation, employing the formula set out in
U.S.S.G. §1B1.10. That provision, however, pertains to
reductions based on retroactive amendments to the Guidelines.
It provides only limited guidance in the present situation.
The First Step Act calls for the Court to analyze, apart from
any such formula, how the Defendant would have been sentenced
if the statutory parameters of the Fair Sentencing Act of
2010 had then been in place. In addition, it calls upon the
Court to examine the whole record so as to exercise its
discretion regarding an appropriate sentence. This process is
something between a plenary resentencing and a mechanical
application such as §1B1.10. For this reason, the Court
needs to take into account the breadth of the offense
conduct. This is particularly true in a case such as this
where the Defendant has joined in a recommendation to the
Court concerning his responsibility for a range of drug
quantities that now straddles the line between the penalties
called for in §§ 841(b)(1)(A) and (b)(1)(B). While
the statutory sentencing range may be dictated by
the low end of the Defendant's admission per
Apprendi and Alleyne,  the potential
sentence within that statutory range remains dependent upon
the Court's determination regarding the drug quantities
for which the Defendant was responsible. In examining the
detailed offense conduct as set forth in the PSR, the Court
is persuaded that had the Fair Sentencing Act of 2010 been in
effect at the time of sentencing, the Defendant herein would
have been held responsible for a drug quantity toward the
lower end of the 150-500 gram range to which he admitted.
Thus, the Court need not examine whether the Defendant would
likely have been prosecuted under the revised §
the Court concludes that the Defendant would likely have been
sentenced at the low end of the modified sentencing range, as
calculated above, of 151 months. The Defendant has a total of
173 months credited time [Doc. 193: Supp. PSR at 3], which would
make him eligible for immediate release.
the Defendant is eligible for a sentence reduction, the First
Step Act makes clear that the decision of whether to reduce a
sentence, and the extent of any such reduction, remains a
matter within the Court's discretion. See Pub.
L. No. 115-391, §§ 404(a)-(b), 132 Stat. 5194,
5222. In exercising that discretion, the Court may consider
such factors as the Defendant's criminal history and the
Defendant's disciplinary record while in the Bureau of
Prisons. See United States v. Dixon, No. 0:09-207-03
(CMC), 2019 WL 2206326, at *4 (D.S.C. May 22, 2019) (denying
request for imposition of time served sentence and instead
imposing reduced sentence of 180 months in light of
defendant's criminal history and seriousness of
disciplinary infractions); United States v. Jones,
No. 3:00cr230, 2019 WL 2171100, at *2 n.5 (E.D. Va. May 8,
2019) (“the Fourth Circuit has recently made clear that
in analogous § 3582(c)(2) proceedings district courts
must adequately consider evidence of ...