United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant's pro
se motion for imposition of a reduced sentence under
Section 404 of the First Step Act. [DE 672]. The government
has responded in opposition to defendant's motion and the
motion is ripe for disposition. For the reasons that follow,
defendant's motion for a reduced sentence [DE 672] is
December 1994, following a jury trial, defendant was found
guilty of (1) conspiracy to possess with intent to distribute
50 grams or more of cocaine base (crack), in violation of 21
U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) engaging
in a continuing criminal enterprise, in violation of 21
U.S.C. § 848 (Count 2); (3) using a firearm during a
drug-trafficking crime and aiding and abetting, in violation
of 18 U.S.C. §§ 924(c)(1) and 2 (Count 3); (4) four
counts of trading food stamps for crack, in violation of 7
U.S.C. § 2024(b) and 18 U.S.C. § 2 (Counts 61, 68,
69, 71, 73); and more than a dozen substantive crack offenses
(Counts 4-11, 21, 31-34). [DE 26, 146]. In January 1995, upon
the government's motion, the Court dismissed the drug
conspiracy charge and the substantive drug charges, given
that they were lesser-included offenses in the continuing
criminal enterprise offense. [DE 155]. Defendant was
therefore sentenced for the continuing criminal enterprise
conviction, the § 924(c) conviction, and the four counts
of trading food stamps for crack. [DE665].
presentence investigation report (PSR) determined that, under
the applicable guideline for a continuing criminal
enterprise, defendant's base offense level was a 42.
Id. ¶ 49. Based on a total offense level of 42
and a criminal history category of IV, defendant's
guideline range of imprisonment was 360 months' to life.
Id. ¶ 72. In February 1995, the Court sentenced
defendant to life imprisonment on Count 2 for engaging in a
continuing criminal enterprise, 60 months, to be served
consecutively, on Count 3, and 60 months, to be served
concurrently, on the remaining counts. [DE 174].
Defendant's conviction on Count 3 was later vacated, but
his life sentence remained. [DE 612]. In January 2017,
defendant received an Executive Grant of Clemency that
reduced his sentence from life to 360 months'
imprisonment. [DE 669].
August 2010, Congress enacted the Fair Sentencing Act, Pub.
L. No. 11-220, 124 Stat. 2372, modifying the statutory
penalties for certain crack offenses. The Fair Sentencing Act
established new thresholds for mandatory minimum sentences.
Previously, a defendant found responsible for at least 50
grams of crack faced a mandatory minimum of 10 years'
imprisonment; the Fair Sentencing Act raised the threshold to
280 grams. The Fair Sentencing Act, however, was not made
retroactive, so it was inapplicable to individuals who had
already been sentenced and who were no longer on direct
review. In December 2018, Congress enacted the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194, which-among
other things-made the Fair Sentencing Act's new crack
thresholds retroactively applicable to defendants who had
been sentenced prior to August 3, 2010.
March 2019, relying on the First Step Act and the newly
retroactive crack thresholds, defendant moved for a reduced
sentence. [DE 672]. Pursuant to the Court's First Step
Act standing order, 19-SO-3, the Office of the Federal Public
Defender (FPD) appeared to represent defendant and determine
whether he could qualify for relief under the Act. [DE 674,
675]. In May, FPD determined that it did not intend to
present any motions on defendant's behalf and was granted
permission to withdraw. [DE 676-78]. In June, the government
responded in opposition to defendant's motion for a
reduced sentence, arguing that defendant is ineligible for a
reduced sentence under Section 404 of the First Step Act
because he was not sentenced for a covered offense. [DE 681].
Defendant's motion for a reduced sentence under the First
Step Act is ripe for disposition.
First Step Act authorizes courts to impose reduced sentences
"as if sections 2 and 3 of the Fair Sentencing Act of
2010 were in effect at the time the covered offense was
committed." Pub. L. 115-391, 132 Stat. 5194, §
404(b). A "covered offense" is 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, that was committed before August 3, 2010."
Id. § 404(a). But the First Step Act also
provides that courts shall not reduce a sentence if it
"was previously imposed or previously reduced in
accordance with the amendments made by sections 2 and 3 of
the Fair Sentencing Act of 2010 or if a previous motion made
under this section to reduce a sentence was, after the date
of enactment of this Act, denied after a complete review of
the motion on the merits." Id. § 404(c).
But the First Step Act also makes clear that "[n]othing
in this section shall be construed to require a court to
reduce any sentence pursuant to this section."
other words, if a defendant committed a crack offense prior
to August 3, 2010, the statutory penalties for which were
modified by the Fair Sentencing Act, and that defendant did
not already receive the benefit of the Fair Sentencing Act or
have a prior motion under § 404 of the First Step Act
denied on the merits, the defendant is facially eligible for
a reduced sentence. Even if a defendant is facially eligible,
however, courts retain the discretion to decline to impose a
the government argues that, and the Court agrees, that
defendant is not eligible for a reduced sentence under
Section 404 of the First Step Act because he was not
sentenced for committing a covered offense. Defendant was
sentenced under 21 U.S.C. § 848 for engaging in a
continuing criminal enterprise and faced a 20-year mandatory
minimum. He was not sentenced for violating any criminal
statute the penalties for which were modified by the Fair
Sentencing Act. Put simply, the fact that the Fair Sentencing
Act modified the crack thresholds, and the First Step Act
made those new thresholds retroactively applicable to
defendant, is irrelevant to the sentence that defendant is
serving. Thus, defendant is ineligible for relief under
Section 404 of the First Step Act, and his motion for a
reduced sentence is denied.
above reasons, defendant's motion for a reduced ...