United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
William Newton, III, represented by counsel, filed a motion
to reduce his sentence pursuant to Section 404(b) of the
First Step Act of 2018. ECF No. 1446. In addition to seeking
a reduction of his sentence under the First Step Act, Newton
asserts that under current law he would not be considered a
career offender, and that even if he is considered a career
offender, he should be resentenced to a term significantly
below his career offender guideline range. He urges the court
to find that he has over-served his sentence and to
resentence him to time served. The government responded to
the motion and does not contest that Newton is eligible for a
reduction of his sentence pursuant to the First Step Act.
However, the government disagrees that Newton is entitled to
a finding that he is not a career offender and asserts that
he is only entitled to a reduction of his sentence from 360
months to 262 months. For the reasons set forth below, the
court will GRANT Newton's request and
modify his sentence to time served, to be followed by a
four-year term of supervised release.
March 20, 2003, a jury convicted Newton of one count of
conspiracy to possess with intent to distribute 50 grams or
more of cocaine base, which triggered a 120-month mandatory
sentence under 21 U.S.C. § 841(b)(1)(A). ECF Nos. 213,
294. His total offense level was 37. His criminal history
points established a criminal history category of V, but
because he was categorized as a career offender, his criminal
history category was VI, based on U.S.S.G. § 4Bl.l(b).
ECF No. 1451 at 8-9, 12. Based on a total offense level of 37
and a criminal history category of VI, his guideline range
was 360 months to life.
qualified as a career offender under U.S.S.G. § 4B1.1
because he had at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
ECF No. 1451 at 8. The prior felony convictions were for
breaking and entering when he was 16 and 17 years old.
Although charged as a juvenile in both counts, he was tried
and convicted as an adult. ECF No. 1451 at 9-10. Sentences
for both convictions originally were suspended, but after he
was found to have violated the terms of probation he was
ordered to serve two years of the original sentence on one
count and one year on the second count.
17, 2003, Newton was sentenced to a term of 360 months in
prison on the federal charge, to be followed by a five-year
term of supervised release. ECF No. 294 at 2-3. The sentence
was at the bottom of his mandatory guideline range. He has
been incarcerated since August 8, 2002 and has served 198
months to date.
24, 2016, Newton filed a 28 U.S.C. § 2255 motion to
vacate his sentence, arguing that his prior convictions for
breaking and entering under Virginia Code § 18.2-91
should not have been used to find that he was a career
offender. ECF No. 1404. On March 12, 2018, this court denied
Newton relief, finding that the § 2255 petition was
seeks First Step Act relief, and also asks that the career
offender designation be removed, because the state statute
under which he was convicted of breaking and entering no
longer serves as a predicate crime for the career offender
guideline. In the alternative, he asks that his sentence be
modified under current law, that the Guidelines be applied to
him in an advisory rather than mandatory manner, and that the
court sentence him well below the Guidelines range.
First Step Act
time Newton was sentenced, a violation of § 841(b)(1)(A)
carried a mandatory minimum sentence of 10 years and a
maximum sentence 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 passed, 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 Newton.
Because he was indicted on 50 grams of cocaine base, if the
Fair Sentencing Act had been in effect in 2007, Newton 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 34 rather than 37 under die
career offender guideline. With a criminal history category
of VI, the corresponding advisory range for offense level 34
is 262-327 monms of imprisonment. In addition, his mandatory
minimum sentence would have been 60 months rather man 120
Newton been sentenced after passage of me Fair Sentencing
Act, the appropriate sentence would have been 262 months,
followed by a 4-year term of supervised release. A sentence
of 262 monms represents the bottom of the sentencing range of
262-327 months. Such a modification corresponds to his
current sentence of 360 months, which was the bottom of the
360-months-to-life sentencing range. Thus, the government
argues mat an appropriate sentence for Newton under die First
Step Act would be 262 monms, followed by a four-year term of
supervised release, while Newton seeks additional
modifications of his sentence, as discussed below.
Designation as ...