United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
Anthony Jerome Johnson filed an emergency motion to reduce
his sentence pursuant to the First Step Act of 2018, Pub. L.
No. 115-015, and asks that his sentence be reduced to 111
months. ECF No. 77. The government does not
contest that Johnson is eligible for consideration of a
reduction in his sentence pursuant to the First Step Act, but
argues that relief should be limited to reducing his term of
supervised release from 8 years to 6 years. In the
alternative, the government asserts that if the court finds
that Johnson is entitled to an adjustment of his sentence, it
should be reduced to 111 months, but not less than time
served. ECF No. 79. For the reasons set forth below, the
court will GRANT Johnson's request and
modify his sentence to 111 months, but not less than time
served, to be followed by a six-year term of supervised
was charged in a second superseding indictment on September
11, 2008 with one count of conspiracy to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) (Count 1), one count
of possessing a measurable quantity of cocaine base with the
intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C) (Count 2), and one count of
possessing 5 grams or more of cocaine base with the intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B) (Count 3). ECFNo. 48. In addition, the
government filed an Information to establish Johnson's
prior convictions pursuant to 21 U.S.C. §§
841(b)(1)(A), 841(b)(1)(B), and 851, subjecting him to an
increased penalty range of 20 years to life for Count 1, with
a potential supervised release term of 10 years, and 10 years
to life for Count 3, with a supervised release term of 8
years. ECF No. 37. With a base offense level of 32, a total
offense level 35, and a criminal history category of VI,
Johnson's original guideline range was 292 to 365 months.
ECF No. 80.
September 19, 2008, pursuant to a written plea agreement
under the terms of Rulel 1 (c)(1)(C), Johnson pleaded guilty
to Count 3 of the indictment. ECF No. 55. The parties agreed
that he would be sentenced to 180 months, reduced by 18
months to reflect the time he served for a related state
conviction in Pulaski County. As part of the agreement,
Johnson received only two points credit for acceptance of
responsibility. ECF No. 55 at 3. On November 17, 2018 the
court sentenced him to 162 months and 19 days to run
concurrently with the undischarged term of state imprisonment
imposed by the Pulaski County Circuit Court. The term was to
be followed by an 8-year term of supervised release. ECF No.
has served approximately 122 months and his current projected
release date is January 3, 2021. ECF No. 80.
time Johnson was sentenced, a violation of § 841(a)(1)
carried a mandatory minimum sentence of 10 years and a
maximum 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 enacted, 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 Johnson.
Because he was charged in Count 3 with an offense involving
five grams or more of cocaine base, and not at least 28
grams, the new statutory maximum for his offense, taking into
consideration the § 851 Information, is 30 years.
Coupled with his criminal history category of VI, his
guidelines range would be 210 to 262 months. ECF No. 80 at 3.
Johnson's original sentence of 180 months was 61.6% lower
than the bottom of the original guideline range of 292
months. Applying the 61.6% reduction to the bottom of the new
guideline range of 210 months results in a sentence of 129
months. Subtracting 18 months for the time Johnson served in
Pulaski County would result in a modified sentence of 111
months. Because he has served 122 months, Johnson
would be eligible for immediate release.
the government concedes that Johnson is eligible for the
reduction, it urges the court to decline to exercise its
discretion to modify his sentence. Absent the 11(c)(1)(C)
plea agreement, the low end of the sentencing guideline range
would have been 292 months. Johnson and the government
negotiated the 180-month sentence, which was 112 months below
the bottom of the guideline range. Also, the government
dismissed Count 1 of the indictment, which carried
significantly higher penalties. In exchange, the government
avoided a trial. The government contends that both parties
received the benefit of their bargain and because nothing has
changed to upset the bargain, the court should decline to
reduce the sentence.
agrees that a 111-month sentence represents a proportional
reduction in his sentence based on the guideline range of 210
to 262 months. However, he disagrees that the court should
decline to amend his sentence because it was the product of a
court concurs with Johnson. Many factors are at play when the
government and a defendant enter into a binding plea
agreement, including the statutory maximum and minimum
sentences based on drug quantities, which are at issue in the
case. The government's agreement to forego the
possibility of a higher sentence was based in part on the
applicable sentencing ranges in effect at that time. Those
sentencing ranges have since been modified by Congress and
made retroactively applicable by the First Step Act. The
court sees no reason to refrain from ...