United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendant's pro
se motion for reduction in sentence pursuant to Section
404 of the First Step Act. The government has responded,
defendant has replied, and the matter is ripe for ruling. For
the reasons that follow, defendant's motion for reduction
in sentence pursuant to Section 404 of the First Step Act is
denied. Defendant's additional motions seeking a
reduction in sentence are also denied.
pleading guilty, defendant, Dailey, was sentenced on March
11, 2015, to a total term of imprisonment of 262 months,
comprised of 202 months' imprisonment for possession with
intent to distribute twenty-eight grams or more of cocaine
base and a quantity of cocaine, 21 U.S.C. §§ 841(a)
& (b), and sixty months' imprisonment for possession
of a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c), to be served consecutively. [DE 29].
Dailey now seeks a reduction in his sentence. He first argues
that a reduction is appropriate under Section 404 of the
First Step Act. He further argues that his United States
Sentencing Guidelines career offender designation was not
proper. Finally, Dailey requests a downward variance in light
of his post-sentencing conduct pursuant to 18 U.S.C. §
Section 404 of the First Step Act.
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 fifty
grams of crack faced a mandatory minimum of ten years'
imprisonment; the Fair Sentencing Act raised the threshold to
280 grams. The Fair Sentencing Act further raised the
threshold for a statutory sentencing range of five-to-forty
years from five grams to twenty-eight 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.
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).
committed a crack offense after August 3, 2010. [DE 1], He is
therefore facially ineligible for relief under Section 404 of
the First Step Act. His motion for reduction in sentence on
this ground is denied.
Career offender enhancement.
outset, the Court GRANTS Dailey's motion to file a reply
to the government's response. In his reply, Dailey
asserts for the first time that he was improperly designated
as a career offender pursuant to U.S.S.G. § 1B4.1.
However, such a challenge must be raised in a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. Because Dailey has previously filed a §
2255 motion that was dismissed on the merits, he must first
seek authorization from the appellate court in order to file
a second motion pursuant to 28 U.S.C. § 2255. United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
Dailey requests a downward variance in his sentence pursuant
to 18 U.S.C. § 3661, which provides that
No limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted
of an offense which a court of the United States may receive
and consider for ...