United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Michael Tyron Terrell Sr. (“Defendant”) has filed
an emergency motion for a reduction of sentence pursuant to
the First Step Act of 2018. (Dkt. 130). The motion has been
fully briefed and is ripe for review. For the following
reasons, the Court will grant Defendant's motion.
multi-count indictment was filed against Defendant on August
15, 2007. (Dkt. 3). Defendant pled guilty to Count One of the
Indictment, specifically, conspiring or agreeing to
distribute fifty or more grams of cocaine base in violation
of 21 U.S.C. § 846. (Dkts. 57-59). His offense triggerd
a mandatory minimum of ten years imprisonment pursuant to
§ 841(b)(1)(A). See 21 U.S.C. § 846. Based
on the determination that Defendant was a career offender
under U.S.S.G. § 4B1.1, his Sentencing Guideline range
was calculated to be 262 to 327 months imprisonment. (Dkts.
130 at 2 and 132 at 2). However, based on a motion for
substantial assistance by the Government, Defendant was
ultimately sentenced to 180 months imprisonment to be
followed by a five year term of supervised release. (Dkts.
130 at 2, 79). Defendant later filed a motion to reduce his
sentence pursuant to Sentencing Guideline Amendment 750, but
it was denied due to his career offender status. (Dkts.
105-106). Defendant then filed this motion pursuant to the
newly enacted First Step Act. (Dkt. 130).
404 of the First Step Act of 2018 permits “a court that
imposed a sentence for a covered offense” to
“impose a reduced sentence as if sections 2 and 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.” Pub. L. No. 115-015, § 404, 132
Stat. 015, 015 (2018). A “covered offense” is
defined 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,
of sentences under the First Step Act are governed by 18
U.S.C. § 3582(c)(1)(B), which states: “The court
may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.” In determining if
modification is appropriate, the Court will first address
whether a reduction is consistent with the First Step Act,
and will then “consider whether the authorized
reduction is warranted, either in whole or in part, according
to the facts set forth in § 3553(a).” Dillon
v. United States, 560 U.S. 817, 826 (2010)
parties agree that Defendant's offense of conviction is a
“covered offense” as defined by the First Step
Act. The offense was committed before August 3, 2010 and the
applicable penalties were modified by section 2 of the Fair
Sentencing Act, which “reduced the statutory penalties
for cocaine based offenses” in order to
“alleviate the severe sentencing disparity between
crack and powder cocaine.” United States v.
Peters, 843 F.3d 572, 575 (4th Cir. 2016). As relevant
in this case, section 2 of the Fair Sentencing Act increased
the drug quantities necessary to trigger mandatory minimum
sentences under 21 U.S.C. § 841(b)(1). Pub. L. No.
111-220, 124 Stat. 2372 (2010). Specifically, the threshold
requirement to trigger the mandatory minimum sentence of ten
years under 21 U.S.C. § 841(b)(1)(A) was increased from
fifty grams to 280 grams. Id.
time of Defendant's sentencing, the applicable sentencing
range was 262-327 months imprisonment. Under the First Step
Act, the applicable sentencing range is 188-253 months
imprisonment. The parties agree that a reduction of
Defendant's sentence is appropriate. After a review of
the record and consideration of the parties' arguments as
well as the factors set forth in § 3553(a), the Court
determines that a sentence of time served, to be followed by
a four year term of supervised release is appropriate in this
case. All other terms of the original sentence
will remain the same.
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to Defendant, all counsel of
record, the United States Probation Office, and the United
States Marshals Service, for delivery to the Bureau of
 Although subsection 3582(c)(1)(B) does
not reference 3553(a) as do other 3582(c) subsections, that
alone does not bar consideration of other factors. While the
Dillon Court analyzed the procedures under §
3582(c)(2), the language quoted is reflected in §
3582(c)(1)(B). Additionally, this approach is mirrored by the
Fourth Circuit's analysis under Rule 35(b), which allows
the Court to “consider other sentencing factors . . .
when deciding the extent of a reduction.” United
States v. Davis, 679 F.3d 190, 195 (4th Cir. 2012);
see also United States Sentencing Commission, Office
of Education and Sentencing Practice, FIRST STEP
FIRST-STEP-Act.pdf (last visited Feb. 11, 2019).
(“[T]he courts should consider the guidelines and
policy statements, along with the other 3553(a) factors,
during the resentencing.”).
 Defendant argues, and the Court
agrees, that it cannot “impose or lengthen a prison
sentence . . . to promote rehabilitation.” Tapia v.
United States,564 U.S. 319 (2011); (Dkt. 133).
Therefore, it cannot sentence Defendant to time served for
rehabilitative purposes. However, the First Step Act does not
“require a court to reduce any sentence, ” and
after consideration of permissible factors including, but not
limited to, the history and characteristics of Defendant, the
seriousness of the offense, adequate deterrence, and the need
to avoid unwarranted sentence disparities, the Court finds
that 130 months, but not less than time served is appropriate
in this case. First Step Act, Pub. ...