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United States v. Newton

United States District Court, W.D. Virginia, Harrisonburg Division

March 1, 2019

UNITED STATES OF AMERICA
v.
JESSIE WILLIAM NEWTON, III, Defendant

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge.

         Jesse 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.

         BACKGROUND

         On 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.

         Newton 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.

         On June 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.

         On June 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 untimely.

         Newton 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.

         I. First Step Act

         At the 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.

         The 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).

         The 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 months.

         Had 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.

         II. Designation as ...


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