United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
Jose Breton-Pichardo filed an emergency motion to reduce his
sentence pursuant to the First Step Act of 2018, Pub. L. No.
115-015. He asks that his sentence be reduced to from 262
months to 188 months which will result in his immediate
release, to be followed by four years of supervised release.
ECF No. 650. The government does not contest that
Breton-Pichardo is eligible for consideration of a reduction
in his sentence and agrees that he is entitled to immediate
release to be followed by four years of supervised release.
ECF No. 654. Neither party requested a hearing. For the
reasons set forth below, the court will
GRANT Breton-Pichardo's request and
modify his sentence to 188 months, but not less than time
served, to be followed by a four-year term of supervised
29, 2003, pursuant to a written plea agreement,
Breton-Pichardo pleaded guilty to one count of possession
with intent to distribute more than 50 grams of cocaine base,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
PSR, ECF Nos. 652 at 1 and 653 at 1. The accountable drug
weight was 336.6 grams of cocaine base, but his guidelines
were determined based upon the career offender guideline,
U.S.S.G. § 4B1.1. ECF No. 652 at 9, 13. That guideline
provided a range of 262-327 months of imprisonment for
offenses where the maximum sentence is life imprisonment and
the defendant receives credit for acceptance of
responsibility. ECF No. 652 at 19. On November 14, 2003
Breton-Pichardo was sentenced to 262 months imprisonment and
an 8-year term of supervised release. ECF No. 100 at 2-3.
Breton-Pichardo's current release date is August 23,
2021. ECF No. 650 at 2.
time Breton-Pichardo was sentenced, a violation of §
841(b)(1)(A) carried a mandatory minimum sentence of 10 years
and a maximum of life imprisonment if the offense involved
more than 50 grams of cocaine base, and a penalty range of 5
to 40 years if the offense involved more than 5 grams of
cocaine base. 21 U.S.C. § 841(b)(1)(A) and (B) (2006).
In 2010, the Fair Sentencing Act was enacted, and Section 2
of the act reduced penalties for offenses involving cocaine
base by increasing the threshold drug quantities required to
trigger mandatory minimum sentences under 21 U.S.C. §
841(b)(1). Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2, 124 Stat. 2372 (2010). Currently, in order to
trigger the 10-years-to-life-sentencing range, the offense
must involve more than 280 grams of cocaine base, and to
trigger the 5-to-40-year sentencing range, the offense must
involve more than 28 grams of cocaine base.
First Step Act was enacted on December 21, 2018. Section 404
of the act permits a court, upon motion of the defendant or
the government, or upon its own motion, to impose a reduced
sentence for certain offenses in accordance with the Fair
Sentencing Act of 2010, if such a reduction was not
previously granted. Offenses qualify for the reduction if
they were committed before August 3, 2010 and carry the
statutory penalties which were modified by section 2 or 3 of
the Fair Sentencing Act of 2010. First Step Act of 2018, Pub.
L. No. 115-015, 132 Stat. 015 (2018).
parties agree that the First Step Act applies to
Breton-Pichardo. Because the indicted drug quantity was 50
grams of cocaine base, if the Fair Sentencing Act had been in
effect in 2007, Breton-Pichardo would have faced a maximum
term of 40 years rather than life imprisonment. In turn, that
maximum sentence would have resulted in an offense level of
31 rather than 34 under the career offender guideline. With a
criminal history category of VI, the corresponding advisory
range for offense level 31 is 188 to 235 months of
imprisonment. In addition, his mandatory minimum sentence
would have been 60 months rather than 120 months.
Breton-Pichardo been sentenced after passage of the Fair
Sentencing Act, the appropriate sentence would have been 188
months, followed by a 4-year term of supervised release.
Thus, the parties agree that an appropriate sentence for
Breton-Pichardo under the First Step Act would be 188 months,
followed by a 4-year term of supervised release. Because
Pichardo has served approximately 197 months, the parties
agree that his sentence should be modified to time
served. Breton-Pichardo has not previously moved
for a reduced sentence pursuant to the First Step Act of 2018
and has not previously had his sentence reduced as if die
Fair Sentencing Act of 2010 applied in his case.
court will GRANT Breton-Pichardo's emergency motion to
reduce his sentence, ECF No. 650, and modify his sentence to
a total period of 188 months, but not less than time served,
to be followed by a four-year term of supervised release. The
court finds the sentence agreed to by the parties is
sufficient, but not greater than necessary, and accounts for
the sentencing factors the court must consider pursuant to 18
U.S.C. § 3553(a), specifically deterrence, protection of
the public, and respect for the law.
appropriate Order and amended judgment will be entered.