United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon, United States District Judge.
before the court is Ronald Samuel Jackson's motion to
reduce his sentence pursuant to Section 404(b) of the First
Step Act of 2018. (Dkt. No. 280.) The United States has filed
a response, in which it acknowledges that Jackson is eligible
for relief under the Act and asks that his sentence be
reduced to time served. (Dkt. No. 283.) Jackson also has
filed a reply. (Dkt. No. 284.) Neither party has requested a
hearing, and defendant has expressly waived any resentencing
hearing. (Dkt. No. 280 at 3.) For the reasons discussed
below, the court will grant the defendant's motion but
will not reduce his sentence below the time he has already
was indicted on September 2, 2003, on a single charge of
conspiracy to distribute 50 grams or more of crack cocaine,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
The government subsequently filed a notice under 21 U.S.C.
§ 851, which increased Jackson's statutory penalty
range upon conviction to a mandatory minimum of 20 years and
a maximum of life imprisonment. The notice also triggered a
ten-year mandatory minimum term of supervised release.
three-day jury trial, the jury returned a guilty verdict and
specifically found that the offense involved 50 grams or more
of crack cocaine. (Dkt. No. 129.) At sentencing, the court
determined that Jackson's base offense level was a 32,
based on a drug amount of between 50 and 150 grams of cocaine
base. Although the PSR recommended that he receive a
two-level upward adjustment for his role in the offense,
pursuant to United States Sentencing Guideline (U.S.S.G.)
§ 3B1.1(c), the sentencing court declined to apply that
adjustment. The court also determined that he was entitled to
a two-level reduction for acceptance of responsibility.
Accordingly, his total offense level was 30 and his criminal
history category was III, which would have resulted in a
guideline sentence below 240 months. Because of the statutory
mandatory minimum, however, his guideline sentence was 240
months. See U.S.S.G. § 5G1.1(b). The court
imposed the statutory mandatory minimum sentence of 240
months, to be followed by a ten-year supervised release term.
(Dkt. No. 177.)
appealed, and the Fourth Circuit affirmed his conviction and
sentence. (Dkt. No. 202, 205.) In 2008, Jackson filed a
motion for reduction of sentence pursuant to U.S.S.G.
Amendments 9 and 706. The court denied that motion because
the defendant had received the statutory mandatory minimum
sentence, and the guideline amendments did not authorize a
sentence below the statutory mandatory minimum. (Dkt. No.
through appointed counsel, now seeks relief under Section 404
of the First Step Act of 2018. 115 Pub. L. 391, § 404,
132 Stat. 5194 (enacted Dec. 21, 2018); see also 18
U.S.C. § 3582(c)(1)(B) (authorizing courts to modify a
previously imposed sentence “to the extent otherwise
expressly permitted by statute”). Section 404
effectively makes the provisions of the Fair Sentencing Act
of 2010 retroactive to defendants who were sentenced prior to
August 3, 2010, and it allows-but does not require-district
courts to reduce the sentence of a defendant as if the
sections of the Fair Sentencing Act were in effect at the
time the defendant's offense was committed. See
First Step Act § 404(c).
parties agree, Jackson meets all the criteria to be eligible
for a reduction under Section 404 of the First Step Act.
Specifically, his offense was committed before August 3,
2010, and the statutory penalties applicable to his offense
were modified by section 2 of the Fair Sentencing Act, which
“reduced the statutory penalties for cocaine base
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 here, section 2 of the Fair Sentencing Act
increased the quantity of cocaine base required to trigger
the statutory penalties set forth in 21 U.S.C. §
841(b)(1)(A), from 50 grams to 280 grams.
was charged with 50 grams or more of cocaine base, and not at
least 280 grams. Thus, applying the Fair Sentencing Act
retroactively to his case means he would no longer be subject
to the statutory penalties of § 841(b)(1)(A) but would
instead be subject to the penalties set forth in §
841(b)(1)(B). Under that provision, and with the § 851
notice, Jackson's statutory sentencing range is ten years
to life imprisonment and at least eight years of supervised
release. The guideline range of imprisonment that now applies
in the defendant's case is the statutory mandatory
minimum: 120 months. (February 8, 2019 Addendum to
Presentence Report, Dkt. No. 285.)
review of the record, the court agrees with the parties that
a sentence reduction is warranted in Jackson's case. He
has served approximately 14 years and 9 months. Jackson seeks
a sentence of 120 months, which would allow him to
“bank time” with the Bureau of Prisons, but the
United States objects to the imposition of any sentence below
time served. Having considered the sentencing factors of 18
U.S.C. § 3553(a), the court will reduce his sentence to
a sentence of time served, to be followed by an eight-year
term of supervised release, but will not reduce his sentence
below a sentence of time served. In particular, the need to
protect the public and the need for deterrence dictates that
a defendant not be allowed to “bank time, ” which
could allow him to commit further crimes without the fear of
imprisonment. Cf. Miller v. Cox, 443 F.2d 1019, 1021
(4th Cir. 1971) (“[T]he availability of credits against
sentences for future crimes would provide a sense of immunity
and an incentive to engage in criminal conduct.”). In
all likelihood, similar concerns underlie the express
prohibition on a court's reduction of a sentence below
time served when reducing based on a sentencing guideline
amendment. See U.S.S.G. § 1B1.10(b)(1)(C)
(directing that a reduction in a term of imprisonment
pursuant to a guideline amendment “[i]n no event may .
. . be less than the term of imprisonment the defendant has
court also considers the need to avoid unwarranted sentencing
disparities and the fact that other courts granting
reductions under the First Step Act have reduced to sentences
of time served, even where a defendant already had served
more than the applicable guideline range. See, e.g.,
United States v. Thompson, Crim. No. 03-72, 2019 WL
460361, at *2 (W.D. Pa. Feb. 6, 2019) (noting that the
defendant had already served at least 54 months more than the
high-end of the guideline range, and reducing his sentence
under the First Step Act to time served); see also United
States v. Fleurival, No. 5:06-cr-41-4 (W.D. Va. Feb. 6,
2019) (denying defendant's request to be resentenced to a
term of imprisonment less than time served).
foregoing reasons, this court will modify the defendant's
sentence, under the First Step Act of 2018 and 18 U.S.C.
§ 3582(c)(1)(B), to a sentence of time served, to be
followed by 8 ...