United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Patrick Anthony
Clarke's Motion for sentence reduction pursuant to the
First Step Act of 2018 (Dkt. 196); Defendant's Emergency
Supplemental Motion to Reduce Sentence (Dkt. 198); and
Defendant's Correction to Supplemental Motion (Dkt. 202).
Defendant has responded (Dkt. 201, 203) and the parties have
waived a hearing (Dkt. 198 at 4; Dkt. 201 at 1). This matter
is ripe for review. For the following reasons, the Court will
grant Defendant retroactive relief under the First Step Act.
August 11, 2004, Defendant was indicted and charged with (1)
conspiracy to distribute and possess with intent to
distribute 50 grams or more of a mixture or substance
containing a detectable amount of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), and
(2) possession with intent to distribute 50 grams or more of
a mixture or substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (Count Three). (Dkt. 15). On October 12,
2004, the Government filed an Information pursuant to 21
U.S.C. § 851, setting out two prior felony drug offenses
and noting that Defendant was thereby subject to an enhanced
minimum mandatory penalty of Life imprisonment under 21
U.S.C. § 841(b)(1)(A) as well as an increased period of
supervised release from at least five years to at least 10
years. (Dkt. 42).
same day Defendant entered into a written plea agreement and
pleaded guilty to Counts One and Three of the indictment.
(Dkts. 43, 44). The plea agreement recited that for Count One
and Count Three the maximum sentence was Life imprisonment.
The plea agreement also recited that the minimum sentence was
10 years imprisonment unless Defendant was subject to
enhanced penalties set forth in 18 U.S.C. §§
841(b)(1)(A) and 851(a)(1), which would raise the minimum
sentence. Defendant acknowledged in the plea agreement that
he was subject to the enhanced mandatory penalty of Life
imprisonment upon entry of his guilty plea. Defendant's
plea agreement stipulated to an amount between 150 grams and
500 grams of cocaine base. (Dkt. 44).
Presentence Report (“PSR”) calculated
Defendant's total offense level to be 35 based on 499
grams of cocaine base and adjustments for his role in the
offense and acceptance of responsibility under the
then-existing Guideline. The PSR also calculated
Defendant's criminal history category to be V, leading to
a Guideline range of 262-327 months. However, because the
statutory minimum sentence of Life imprisonment (based on the
Section 851 enhancements) exceeded this Guideline range, the
Guideline sentence became Life. (Dkt. 197). On August 18,
2006, the Court sentenced Defendant to Life imprisonment as
to each of Counts One and Three, to run concurrently, and 10
years supervised release as to each of Counts One and Three,
to run concurrently. Judgment to this effect was entered.
(Dkt. 112, 113).
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 the
language of the Act and 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).” See Dillon v. United
States, 560 U.S. 817, 826 (2010).
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 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 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). After the First Step Act a violation of 21 U.S.C.
§ 841(a)(1) must involve at least 280 grams of cocaine
base (rather than 50 grams) to trigger the penalty ranges of
21 U.S.C. § 841(b)(1)(A), and at least 28 grams to
trigger the penalty ranges of 21 U.S.C. § 841(b)(1)(B).
Id. In this case, the determination of the
applicable subsection of § 841(b)(1) also determines
which statutory enhancement(s) might apply because of
Defendant's prior drug offenses.
Government concedes in this case that the Defendant is
eligible for a reduction because he was sentenced under 21
U.S.C. § 841(b)(1)(A) for a cocaine base offense that
was committed prior to the Fair Sentencing Act. The
Government further asserts that 21 U.S.C. § 841(b)(1)(B)
rather than § 841(b)(1)(A) applies to the Defendant:
“Because he was charged with fifty grams or more of
cocaine base, and not at least 280 grams, under the First
Step Act the new statutory range for his offense, with the
§ 851 enhancements[, ] ¶ 10 years to Life
imprisonment and at least 8 years supervised release.”
(Dkt. at 6). See 21 U.S.C. § 841(b)(1)(B)
(setting out penalties for a person committing a violation
after a felony drug offense has become final). Applying the
Fair Sentencing Act retroactively to Defendant 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). See United States v.
Laguerre, No. 5:02-cr-30098-3, 2019 WL 861417, at *3
(W.D. Va. Feb. 22, 2019).
this reasoning, the Defendant is no longer subject to a
mandatory Life sentence on either Count One or Count Three.
Therefore, his Guideline range calculated in light of the
First Step Act is necessarily a part of the Court's
consideration of whether a reduction is warranted and, if so,
the extent of any reduction. The parties agree that
Defendant's new applicable Guideline range is 168 to 210
months based upon a total offense level of 31 and a criminal
history category of V. (Dkt. 201 at 7; Dkt. 202 at 1). The
Government notes that the total offense level of 31
“includes all retroactive guideline reductions to
U.S.S.G. § 2D1.1 enacted since the Defendant's
sentencing.” The Defendant initially requested a
sentence modification to 188 months but now requests a
sentence of 168 months, the low end of this new Guideline
range. (Dkt. 202 at 1). The Government objects to a sentence
of 168 months but does not object to the modification of a
sentence to time served. The Government estimates that
Defendant has served 177 months although because of his Life
sentence his current Release Date is Life. (Dkt. 203 at 1;
see Bureau of Prisons Inmate Locater website).
review of the record and consideration of the factors set
forth in 18 U.S.C. § 3553(a), and noting the
parties' arguments, 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 177
months imprisonment on each of Counts One and Three, to run
concurrently, but not less than time served, with eight years
of supervised release to follow on each of Counts One and
Three, to run concurrently. A sentence of 177 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. A modified sentence of 177 months falls
within the lower end of the revised Guideline range. A
sentence to less than time served is not warranted in this
case. See Laguerre, 2019 WL 861417, at *3-4.
requests a reduction of the period of supervised release to
eight years. (Dkt. 198 at 4). The Government does not object
to the reduction if the Court determines, as it has here,
that a reduction in sentencing is warranted. (Dkt. 201 at 7).
Supervised release of eight years is consistent with this
Court's initial imposition of the minimum term of
supervised release previously applicable. Based on the record
in this case and the purposes of supervised release, the
Court will reduce Defendant's term of supervised release
to eight years. See 18 U.S.C. § 3583.
other terms of the original sentence will remain the same.
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. 201 at 1). The
Court finds the request well-grounded under the circumstances
of this case, including Defendant's initial Life sentence
and, as a result, no prior calculation of a release date. The
Court, therefore, will stay the effective ...