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
October 2006, the Defendant was charged with one count of
conspiracy 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) (“Count One”) [Doc. 3], a
charge which subjected him to a mandatory term of
imprisonment of not less than 10 years nor more than life.
See 21 U.S.C. § 841(b)(1)(A). In February 2007,
the Defendant pled guilty pursuant to a written Plea
Agreement to Count One. [See Doc. 97]. In the Plea
Agreement, the parties agreed to jointly recommend to the
Court that the amount of cocaine base that was known to or
foreseeable by the Defendant was in excess of 150 grams but
less than 500 grams. [Id. at 2 ¶ 5(a)].
Presentence Report (PSR) was prepared in advance of the
sentencing hearing. In it, the probation officer recounted
the evidence pertaining to the Defendant's relevant
offense conduct and participation in the conspiracy.
[See Doc. 364: PSR at ¶¶ 6-28]. While much
of this evidence indicated that the Defendant was an active
“runner” dispersing crack cocaine, the exact
amounts distributed were unknown. Investigators estimated the
Defendant's accountability to be at least 150 grams but
less than 500 grams of crack cocaine. However, the
Defendant's voluntary statement alone provided to
investigators on December 15, 2004, indicated that the
Defendant distributed at least 4.39 kilograms during the
course of the conspiracy. [See id. at ¶ 29].
sentencing, the Court adopted the findings of the PSR, and
the Defendant did not object. Under Section 841(b)(1)(A), the
Defendant therefore faced a statutory maximum penalty of life
imprisonment and a mandatory minimum term of 10 years'
Court determined the Defendant to be a career offender. The
Court calculated a guidelines range of 262 to 327 months
under the career-offender guidelines. [Id. at
¶¶ 109, 112]. This calculation was driven in part
by the statutory maximum of life for a Section 841(b)(1)(A)
offense, which dictated a base offense level of 37.
[Id. at ¶ 42]. With a three-point reduction for
acceptance of responsibility, the Defendant's total
offense level (TOL) was calculated to be 34. Based on the
Government's motion, the Court departed downward the
equivalent of two offense levels to 32. Based on a TOL of 32
and a criminal history category (CHC) of VI, the Court
calculated a revised sentencing range of 210 to 262 months.
The Court imposed a sentence of 210 months' imprisonment
plus the statutory minimum of five years of supervised
release. [Doc. 227].
Defendant now moves for relief under the First Step Act of
2018. [Doc. 489]. The Government argues that the Defendant is
not eligible for sentencing relief based on the drug quantity
found by the Court when the Defendant was sentenced. Even if
the Defendant were eligible for a reduced sentence, the
Government contends that the Court should exercise its
discretion to deny the Defendant's motion. [Doc. 491].
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 offense levels and imposed a sentence
of 210 months, the low end of the modified sentencing range
after the departure. Applying that same ...