United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Reduce Sentence and Reply to United States' Response
Pursuant to the First Step Act of 2018 - Immediate Release
Eligible. (Dkt. 132). The Government has filed a response
(Dkt. 134), supplementing its response pursuant to this
Court's January 25, 2019 Order (Dkt. 131). Defendant has
moved to amend his initial motion to reflect his agreement
with the last position taken by the Government. (Dkt. 135). The
parties do not request a hearing and the matter is now ripe
for a decision. For the following reasons, the Court will
grant the Motion and reduce the sentence to 136 months, but
not less than time served, and will reduce the period of
supervised release to four years.
February 26, 2009, Defendant was indicted and charged with
four counts of drug offenses. In Count One, Defendant was
charged with conspiracy to possess with intent to distribute
and to distribute 50 or more grams of a mixture or substance
with a detectable amount of cocaine base in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(A), all in violation of
21 U.S.C. § 846. (Dkt. 3). At the time of sentencing, a
drug offense subject to § 841(b)(1)(A) carried a
mandatory minimum sentence of ten years and a maximum
sentence of life imprisonment.
1, 2009, Defendant entered into a written plea agreement and
pleaded guilty to Count One of the Indictment. Under the plea
agreement, Defendant stated that he understood that because
of his prior criminal record he might be treated as a career
offender under U.S.S.G. § 4B1.1 if the Court determined
that he had at least two prior convictions for felony drug
offenses and/or crimes of violence. (Dkt. 39, 40, 41). The
Presentence Report (“PSR”), using the career
offender enhancement and the maximum possible sentence of
imprisonment for life, determined Defendant's Base
Offense Level to be 37, rather than a lower level that would
have resulted absent the enhancement. After an adjustment for
acceptance of responsibility, the PSR concluded that the
Total Offense Level was 34. (Dkt. 112 ¶¶ 21-23).
The PSR also concluded that Defendant's criminal history
category should be VI with or without his status as a career
offender. (Dkt. 112 ¶¶ 40-41). The resulting
Guideline range was 262 to 327 months with a mandatory
minimum and maximum of ten years to life imprisonment and a
mandatory minimum of five years of supervised release. (Dkt.
112 ¶¶ 66, 68-69).
Court at the sentencing hearing found the PSR correctly
calculated the applicable Guidelines in this case, including
an advisory Guideline range of 262 to 327 months.
(See Dkt. 60 at 2). The Court sentenced Defendant to
be imprisoned for a total term of 144 months, below the
Guideline range, to be followed by five years of supervised
release. (Dkt. 62 at 2-3). The Government and Defendant
inform the Court that Defendant's current release date is
October 16, 2019, according to the federal Bureau of Prisons
website. (Dkt. 131 at 2; Dkt. 132 at 4).
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. 115-391, § 404(b). 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, 2010.”
Id. § 404(a). The First Step Act further
provides that the court is not required to reduce any
sentence pursuant to § 404. Id. § 404(c).
of sentences of imprisonment under the First Step Act are
governed by the Act and 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
factors set forth in § 3553(a) to the extent they are
applicable.” Dillon v. United States, 560 U.S.
817, 826 (2010).
parties agree, and the Court finds, that Defendant's
offense of conviction is a “covered offense” as
defined by the First Step Act. (Dkt. 131 at 6; Dkt. 132). The
offense was committed before August 3, 2010, and the
applicable penalties were modified by 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), cert. denied, 137 S.Ct. 2267 (2017). As
relevant in this case, a violation subject to 21 U.S.C.
§ 841(b)(1)(A) must now involve at least 280 grams of
cocaine base rather than the “at least” 50-gram
level in effect at the time of Defendant's offense and
sentencing. The Government states that “because he was
charged with fifty grams or more of cocaine base and not 280
grams or more, under the First Step Act, the new statutory
range for his offense is 5 to 40 years.” (Dkt. 131 at
6). Thus, under the First Step Act, the Defendant would no
longer be subject to 21 U.S.C. § 841(b)(1)(A)'s ten
years to life imprisonment range but rather to §
841(b)(1)(B)'s five to 40 year penalty range. This
distinction is important here because application of the
First Step Act in this case lowers Defendant's career
offender Base Offense Level from 37 to 34 under U.S.S.G.
initially requested a reduction in his sentence to time
served or to 103 months (below time served). (Dkt. 132 at 1,
4). Although Defendant's Motion to Amend (Dkt. 135) will
be denied as moot, the grounds stated in that motion reflect
an agreement with the sentence reduction the Court will
Government initially opposed a reduction in the original term
of imprisonment imposed (Dkt. 131 at 7) but subsequently
informed the Court that it does not oppose the
Defendant's request to reduce his sentence and submitted
that an appropriate sentence is 136 months, but not less than
time served, and four years supervised release (Dkt. 134 at
1). The Defendant agrees with the Government's
submission. (See Dkt. 135).
review of the record, the arguments of the parties, and
consideration of the factors set forth in 18 U.S.C. §
3553(a), the Court concludes that a modification of
Defendant's sentence pursuant to the First Step Act of
2018 is consistent with the Act and appropriate in this case.
This is a reduction of eight months from Defendant's
original sentence. A sentence of 136 months, but not less
than time served, furthers the factors set forth in §
3553(a), which, among other things, require consideration of
the need to protect the public, deterrence, and the avoidance
of sentencing disparities among similarly situated
defendants. Accordingly, the Court will order that
Defendant's sentence be modified to 136 months
imprisonment, but not less than time served. See United
States v. Laguerre, No. 5:02-cr-30098, 2019 WL 861417,
at *3 (W.D. Va. Feb. 22, 2019) (discussing reasons for not
reducing defendant's sentence to below time served).
parties agree that a term of four years supervised release is
appropriate. Application of 21 U.S.C. § 841(b)(1)(B)
rather than 21 U.S.C. § 841(b)(1)(A) lowers
Defendant's minimum supervised release period from five
years to four years. The Court previously imposed the
statutory minimum period of supervised release and the Court
finds a reduction to four years is consistent with the
Court's original imposition of the minimum period of
supervised release applicable to Defendant and the purposes
and goals of supervised release. The Court will reduce
Defendant's period of supervised release from five years
to four years.
other terms of Defendant's original sentence shall remain
Government requests that if the Court imposes a reduction to
a sentence at or near time-served, that the order be stayed
up to 10 days to allow the Bureau of Prisons sufficient time
to process the Defendant's release. (Dkt. 131 at 1).
Defendant objects and requests that any order for a
time-served sentence include immediate release. (Dkt. 132 at
3). The Court finds the Government's request
well-grounded under the circumstances of this case,
particularly as Defendant may be at or near the end of the
sentence which will be imposed. The Court, therefore, ...