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 a reduced sentence under Section 404 of
the First Step Act and Amendment 706 to the United States
Sentencing Guidelines. [DE 105]. The government has responded
in opposition and the motion for reduction is ripe for
disposition. For the reasons that follow, defendant's
motion for a reduced sentence is denied.
was indicted on April 17, 2001, for possession with intent to
distribute fifty grams or more of cocaine base (count one)
and possession with intent to distribute more than 500 grams
of cocaine hydrochloride (count two). 21 U.S.C. §
841(a)(1); [DE 1], Defendant pleaded guilty to count one, and
was sentenced on December 13, 2012, to 120 months'
imprisonment and five years of supervised release. [DE 41].
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 longeron 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 52], In May 2019, the Office of the Federal
Public Defender (FPD) appeared on behalf of defendant,
determined that it did not intend to present any motions on
defendant's behalf, and was granted permission to
withdraw, [DE 108-110]. In June 2019, the government
responded in opposition to defendant's motion for a
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).
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." Id.
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,
courts retain the discretion to decline to impose a reduced
is, however, facially ineligible for relief under Section 404
of the First Step Act. Although defendant was indicted prior
to the passage of the Fair Sentencing Act, he was not
sentenced until after it is passage, and thus he received the
benefit of the new statutory sentencing range. See
[DE 37] (listing defendant's statutory imprisonment range
as not less than five nor more than forty years; see also
Dorsey v. United Slates, 567 U.S. 260, 281 (2012)
("the Fair Sentencing Act's new, lower mandatory
minimums to apply to the post-Act sentencing of pre-Act
has also already received any benefit from Amendment 706 to
the United States Sentencing Guidelines. On November 1, 2008,
the Sentencing Commission issued Amendment 706, which revised
the crack guidelines to reduce the base offense levels
applicable to crack offenses under U.S.S.G. § 2D1.1 by
two levels. United States v. Lindsey, 556 F.3d 238,
242 (4th Cir. 2009). Defendant was sentenced in December
2012, and his advisory Guidelines base offense level was
calculated using the 2012 edition of the Guidelines
Manual, [DE 37]. Thus, Amendment 706 did not have the
effect of subsequently lowering defendant's Guidelines
sentencing range, and he is ineligible for a sentence
reduction on that ground pursuant to 18 U.S.C. §
above reasons, defendant's motion for a reduction in