United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge.
Edward Pinero, through counsel, has filed a motion for
reduction of sentence pursuant to the First Step Act of 2018.
The motion has been briefed and is ripe for review. For the
following reasons, the court will grant the defendant's
22, 1997, a grand jury in the Western District of Virginia
returned a superseding indictment against the defendant.
Count One of the indictment charged the defendant with
conspiracy to possess with intent to distribute cocaine base,
in violation of 21 U.S.C. § 846. Count Two charged the
defendant with possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). Count Three charged the defendant with
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii).
21, 1998, the defendant pled guilty to all three counts of
the indictment. In his written plea agreement, the defendant
acknowledged that he was subject to a mandatory term of
imprisonment of 10 years to life for the offense charged in
Count Two. The defendant also acknowledged that he was
subject to a mandatory term of imprisonment of 5 to 40 years
for the offense charged in Count Three. See Plea Agreement 2,
Dkt. No. 129-2.
defendant appeared for sentencing on September 9, 1998. At
that time, the court adopted the presentence report prepared
by the United States Probation Office, which designated the
defendant as a career offender. That designation, coupled
with the "offense statutory maximum" applicable to
Count Two, resulted in a base offense level of 37 under the
United States Sentencing Guidelines ("U.S.S.G.").
See U.S.S.G. § 4B1.1(b). With a three-level reduction
for acceptance of responsibility and a criminal history
category of VI, the defendant's guideline range was 262
to 327 months' imprisonment. The court ultimately imposed
a term of imprisonment of 262 months, to be followed by a
five-year term of supervised release.
parties agree that the defendant is now eligible for a
sentence reduction under the newly-enacted First Step Act of
2018. Section 404 of the First Step Act permits the court to
retroactively apply the statutory penalties modified by the
Fair Sentencing Act of 2010. See First Step Act of 2018, Pub.
L. No. 115-391, § 404, 132 Stat. 5194 (enacted Dec. 21,
2018); see also 18 U.S.C. § 3582(c)(1)(B)
(authorizing courts to modify a sentence of imprisonment
"to the extent otherwise expressly permitted by
statute"). Section 404 provides that "[a] court
that imposed a sentence for a covered offense may, on motion
of the defendant, ... 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). The Act defines a "covered offense"
as "a violation of a Federal criminal statute, the
statutory penalties of 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).
case, it is undisputed that the offenses with which the
defendant was charged in Counts Two and Three of the
indictment are "covered offense[s]" for purposes of
the First Step Act. The offenses were committed before August
3, 2010, and the applicable statutory 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) (citing Fair
Sentencing Act of 2010, § 2, Pub. L. No. 111-220, 124
Stat. 2372, 2373 (codified at 21 U.S.C. § 841(2012))).
As is relevant in the instant case, section 2 of the Fair
Sentencing Act increased the amount of cocaine base required
to trigger the statutory penalties set forth in §
841(b)(1)(A) from 50 grams to 280 grams, and it increased the
amount of cocaine base required to trigger the statutory
penalties set forth in § 841(b)(1)(B) from 5 grams to 28
grams. See Pub. L. No. 111-220, § 2(a)(1), 124 Stat, at
2372; see also 21 U.S.C. § 841(b)(1)(A)-(B)
(2012). Accordingly, the court is authorized to "impose
a reduced sentence as if [section 2] were in effect at the
time the covered offense was committed." 115 Pub. L.
391, § 404(b).
the Fair Sentencing Act is retroactively applied in the
defendant's case, the statutory sentencing range for the
most serious count-Count Two-is 5 to 40 years'
imprisonment. The guideline range of imprisonment that now
applies in the defendant's case, based on a statutory
maximum sentence of 40 years, is 188 to 235 months.
review of the record, the court agrees with the parties that
a sentence reduction is warranted in the defendant's
case. Specifically, after considering the parties'
arguments and the sentencing factors set forth in 18 U.S.C.
§ 3553(a), and in order to maintain consistency with the
relief afforded in similar cases, the court will reduce the
defendant's total term of imprisonment to 188 months, but
not less than time served. The court will also reduce the
defendant's total term of supervised release to 4 years.
All other terms of the original sentence will remain the
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to the defendant, all counsel of
record, the United States Probation Office, and the United
States Marshals Service, for delivery to the Bureau of
The defendant was sentenced by United
States District Judge James H. Michael, Jr., who passed away
in 2005. The defendant's case was reassigned to the
undersigned district judge on June 13, 2016.
Because the defendant's indictment
was issued several years before the Supreme Court's
decision in Apprendi v. New Jersey,530 U.S. 466
(2000), the indictment did not list particular drug
quantities. However, Count Two specifically referenced the
penalty provision applicable to offenses involving 50 grams
or more of cocaine base. See 21 U.S.C. §
841(b)(1)(A)(iii) (1994) (amended 2010) (providing for a
mandatory term of imprisonment of 10 years to life). Count
Three specifically referenced the penalty provision
applicable to offenses involving 5 grams or more of ...