United States District Court, E.D. North Carolina, Eastern Division
EARL BRITT, SENIOR U.S. DISTRICT JUDGE
matter is before the court on defendant's pro se
motions to reduce his sentence under the First Step Act of
2018 (“First Step Act”) and for the appointment
of counsel. (DE ## 126, 133, 140.)
2008, pursuant to a plea agreement, defendant pled guilty to
one count of possession with intent to distribute a quantity
of crack cocaine in violation of 21 U.S.C. § 841(a)(1)
(“Count One”); one count of possession with
intent to distribute more than five grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1) (“Count
Nine”); and two counts of using and carrying a firearm
in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c) (“Counts Two and Ten”). In
2009, the court sentenced defendant to 77 months imprisonment
on each of Counts One and Nine, to run concurrently, 60
months imprisonment on Count Two, to be served consecutively
to the terms of imprisonment on the other counts, and 300
months imprisonment on Count Ten, to be served consecutively
to the terms of imprisonment on the other counts, for a total
term of imprisonment of 437 months.
2014, on defendant's motion pursuant to 18 U.S.C. §
3582(c)(2) and based on retroactive amendment of the
sentencing guidelines pertaining to crack cocaine offenses,
the court reduced defendant's sentences of imprisonment
on Counts One and Nine to 60 months, to run concurrently. (DE
# 109, at 4.) The court did not alter defendant's
sentences of imprisonment on Counts Two and Ten.
(Id.) Defendant's total term of imprisonment was
therefore reduced to 420 months. (Id. at 4-5.) In
December 2016, President Barack Obama commuted
defendant's total term of imprisonment to 180 months. (DE
# 117, at 2.)
months ago, pursuant to Standing Order 19-SO-3, counsel was
appointed to represent defendant to determine whether he may
qualify for relief pursuant to the First Step Act. With court
approval, counsel withdrew from representation. (8/16/19 Text
Order.) Now, defendant, proceeding pro se, requests
that the court reduce his total term of imprisonment to time
served (which is approximately 144 months) “and leave
his term of supervised release unaltered.” (Supp. Mot.,
DE # 140, at 1.)
18 U.S.C. § 3582(c)(1)(B), a “court may modify an
imposed term of imprisonment to the extent otherwise
expressly permitted by statute.” The First Step Act is
such a statute. See United States v. Hardnett, No.
3:03CR212, 2019 WL 5445887, at *7 (E.D. Va. Oct. 24, 2019)
(“§ 3582(c)(1)(B) informs the Court regarding how
to modify a sentence pursuant to the First Step Act.”).
The Act made Sections 2 and 3 of the Fair Sentencing Act of
2010 (“Fair Sentencing Act”) retroactive.
See Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5222 (2018). Those sections of the Fair Sentencing Act
increased the threshold amounts of crack cocaine to trigger
mandatory minimum terms of imprisonment for trafficking crack
cocaine and eliminated the five-year mandatory minimum term
of imprisonment for simple possession of crack cocaine.
See Pub. L. No. 111-220, §§ 2, 3, 124
Stat. 2372 (2010). “A court that imposed a sentence for
a covered offense may . . . impose a reduced sentence as if
[these] sections . . . were in effect at the time the covered
offense was committed.” Pub. L. No. 115-391, §
404(b), 132 Stat. at 5222.
determine whether defendant is eligible for relief under the
First Step Act, the court considers whether his crack cocaine
offenses, i.e., Count One and Nine, are “covered
offenses.” See Hardnett, 2019 WL 5445887, at
*8. The First Step Act defines “covered offense”
as “a violation of a Federal Criminal statute, the
statutory penalties for which were modified by Sections 2 or
3 of the Fair Sentencing Act of 2010 . . ., that was
committed before August 3, 2010.” Pub. L. No. 115-391,
§ 404(a), 132 Stat. at 5222. Defendant committed both
crack cocaine offenses prior to 2010.
time defendant committed the offense charged in Count One,
possession with intent to distribute a quantity of crack
cocaine, the maximum term of imprisonment could not exceed 20
years. (PSR, DE # 114, at 1, 16.) See 21 U.S.C.
§ 841(b)(1)(C) (2006). The Fair Sentencing Act did not
modify that penalty. See Pub. L. No. 111-220, §
2(a), 124 Stat. at 2372. Therefore, defendant is not eligible
for relief as to his sentence on Count One.
time defendant committed the offense charged in Count Nine,
possession with intent to distribute more than five grams of
crack cocaine, the minimum term of imprisonment was five
years and the maximum term of imprisonment was 40 years.
(PSR, DE # 114, at 1, 16.) See 21 U.S.C. §
841(b)(1)(B)(iii) (2006). The Fair Sentencing Act
did modify the penalty for that offense.
See Pub. L. No. 111-220, § 2(a)(2), 124 Stat.
at 2372 (raising the threshold amount from five grams to 28
grams). If the Act was in effect at the time defendant
committed Count Nine, he would be not be subject to any
minimum term of imprisonment and subject to a maximum term of
imprisonment of 20 years. Accordingly, defendant is eligible
for relief as to his sentence on Count Nine.
so, the court, in its discretion, declines to reduce
defendant's term of imprisonment. See Hardnett,
2019 WL 5445887, at *7 (“[T]he First Step Act makes
clear that even if a defendant is eligible for a sentence
reduction, the decision whether to grant a reduction remains
within the district court's discretion.” (citing
Pub. L. No. 115-391, § 404(a)-(b), 132 Stat. at 5222)).
With the President's commutation, defendant's total
term of imprisonment has been reduced by nearly 60%.
Defendant's current sentence of imprisonment is
significantly lower than any sentence of imprisonment the
court might impose applying the Fair Sentencing Act and
relevant drug quantity amendments to the sentencing
motions for a sentence reduction are DENIED. To the extent
defendant requests the appointment of ...