United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Malik Delaney (“Defendant”) was identified as an
individual who may qualify for retroactive application of the
Fair Sentencing Act of 2010 under Section 404 of the First
Step Act of 2018. (Dkt. 41). This matter has been briefed and
is ripe for review. For the following reasons, the Court will
grant Defendant retroactive relief under the First Step Act.
8, 2008, Defendant was indicted on one count of distribution
of 50 grams or more of cocaine vase, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Dkt. 3). The
United States filed an Information to establish
Defendant's prior drug conviction pursuant to
§§ 841(b)(1)(A) and 851, subjecting Defendant to an
increased penalty range of a mandatory minimum of 20 years
(240 months) imprisonment and a maximum of life imprisonment.
(Dkt. 29). This prior felony drug conviction also increased
the applicable period of supervised release from 5 to 10
years. (Id.; dkt. 47 at 2). Defendant entered into a
written plea agreement on December 30, 2008, and pleaded
guilty on the same date. (Dkts. 33, 36). Defendant's
Guidelines range was the mandatory minimum sentence of 240
months imprisonment. On January 20, 2009, the Court sentenced
Defendant to 240 months imprisonment and 10 years supervised
release. (Dkt. 38).
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
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 under
21 U.S.C. § 841(b)(1)(A) was increased from fifty to 280
the First Step Act, the statutory range for Defendant's
offense, taking into account Defendant's total offense
level of 23 and his criminal history category of VI, would be
92 to 115 months imprisonment but Defendant remains subject
to the mandatory minimum sentence of 10 years (120 months)
pursuant to 21 U.S.C. § 851. The parties agree that a
modification of Defendant's sentence to 120 months, but
not less than time served, with 8 years of supervised release
to follow,  is appropriate. (Dkts. 47, 49). The Court
has been advised that Defendant has already served 128 months
of his original sentence.
review of the record and consideration of the factors set
forth in § 3553(a), and noting the parties'
agreement, the Court concludes that a modification of
Defendant's sentence pursuant to the First Step Act of
2018 is appropriate. Accordingly, the Court will order that
Defendant's sentence be modified to 120 months
imprisonment, but not less than time served, with 8 years of
supervised release. 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 § 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 Act,
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.”).
 The statutory penalty in
Defendant's case would now be a violation of 21 U.S.C.
§ 841(b)(1)(B); the range for a term of supervised
release would therefore be ...