United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Christine Madeleine
Lee, Assistant Federal Public Defender, Roanoke, Virginia,
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
defendant has filed a motion to reduce sentence pursuant to
the First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194, 5220 (2018) (“2018 FSA” or
“Act”), which made retroactive certain provisions
of the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2, 124 Stat. 2372, 2372 (2010) (“2010
FSA”). I find the defendant eligible for relief and I
will reduce the sentence.
2 of the 2010 FSA reduced the penalties for offenses
involving cocaine base by increasing the threshold drug
quantities required to trigger mandatory minimum and
increased maximum sentences under 21 U.S.C. § 841(b)(1).
The 2018 FSA provides that the court may, on motion of the
defendant, the Director of the Bureau of Prisons, the
attorney for the Government, or the court, impose a reduced
sentence as if the 2010 FSA were in effect at the time the
defendant's crime was committed. 2018 FSA § 404(b).
defendant whose crime was committed before August 3, 2010,
may be eligible for reduction in sentence, 2018 FSA §
404(a), the Act provides that the court is not required to
reduce any sentence, id. at § 404(c). Thus, the
court must first consider whether the defendant is eligible
for a reduction in sentence. Second, if the defendant is
eligible for reduction, the court must determine whether, and
to what extent, a reduction is warranted.
defendant in this case was charged in this court by a Second
Superseding Indictment on February 15, 2005, with possessing
with the intent to distribute and distributing powder cocaine
and five grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) (Count One); possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Two); and possessing a firearm in
furtherance of drug trafficking activity, in violation of 18
U.S.C. § 924(c) (Count Three). At the time of his
sentencing, a violation of § 841(b)(1)(B) carried a
mandatory minimum sentence of five years and a maximum
sentence of 40 years imprisonment. However, the United States
filed an Information to establish the defendant's prior
drug conviction pursuant to 21 U.S.C. § 851, which
subjected him to an increased penalty range of a mandatory
minimum of 10 years and a maximum of life imprisonment, due
to at least one prior felony drug conviction, and an increase
in the minimum applicable period of supervised release from
four years to eight years.
defendant pleaded guilty to Counts One and Three of the
Second Superseding Indictment on November 29, 2005, pursuant
to a written Plea Agreement. He stipulated to a base offense
level of 26 and that he had been convicted of a prior felony
drug offense for purposes of the § 851 enhancement. The
United States agreed to recommend a sentence at the low end
of the applicable guideline range.
to the Presentence Investigation Report (“PSR”),
the defendant was held accountable for between five and 20
grams of cocaine base. He was determined to be a career
offender and his sentencing guideline range was enhanced in
accordance with U.S. Sentencing Commission Guidelines Manual
(“USSG”) § 4B1.1. The resulting scoring
produced a base offense level of 37 and a criminal history
category of VI, yielding a guideline range of 322 to 387
months after adjusting the offense level for acceptance of
responsibility. In accord with USSG § 4B1.1(c)(2), this
guideline range was based upon the mandatory minimum of 60
months under Count Three plus the guideline range for Count
was sentenced on June 14, 2006, under the advisory
guidelines, to 240 months imprisonment and eight years
supervised release. The court arrived at this sentence
following the United States' motion for a downward
departure on account of the defendant's substantial
to its website, the Bureau of Prisons calculates the
defendant's current release date to be August 10, 2023.
The Probation Office estimates that Rader has served over 14
years (174 months) in custody for the present offenses.
parties agree that the defendant is eligible for reduction in
sentence under the 2018 FSA. Because he was charged with five
grams or more of cocaine base and not at least 28 grams, the
new statutory range for Count One, with the § 851
Information, is a term of imprisonment of up to 30 years and
a term of supervised release of at least 6 years to life. 21
U.S.C. § 841(b)(1)(C). Although he remains a career
offender, the lower statutory maximum as to Count One
produces a guideline range of 262 to 327 months under the
Career Offender Table, USSG § 4B1.1(c)(3).
reviewed the defendant's original PSR and programming and
disciplinary data while in prison, as well as the briefs
filed by counsel. The defendant has a serious criminal
history and a number of disciplinary violations in prison.
Nevertheless, he is now 45 years old, and his maturity may
produce less risk of recidivism. I find it appropriate in
determining whether to reduce the defendant's sentence,
and the extent of any such reduction, to consider the
sentencing factors set forth in 18 U.S.C. § 3553(a).
Considering those factors, I will reduce the defendant's
sentence to time served, to be followed by a term of
supervised release of six years.
it is hereby O ...