United States District Court, W.D. Virginia, Harrisonburg Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States.
M. Lorish, Assistant Federal Public Defender,
Charlottesville, Virginia, for Defendant.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, Richard L. Fulton, has filed a Motion for
Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2)
and U.S. Sentencing Guidelines Manual (“USSG”)
§ 1B1.10. He relies on Amendment 782 to the Sentencing
Guidelines, which “reduced the base offense level by
two levels for most drug offenses.” Hughes v.
United States, 138 S.Ct. 1765, 1774 (2018). The United
States argues that because over 25 kilograms of cocaine base
were attributed to Fulton in his Presentence Investigation
Report (“PSR”), he is ineligible for a reduction,
and even if he were eligible, the court should exercise its
discretion to deny it. For the reasons that follow, I find
Fulton ineligible for a reduction, and I will deny the
pleaded guilty to conspiring to distribute and possess with
the intent to distribute more than 50 grams of cocaine base
and possessing a firearm after being convicted of a felony.
In the plea agreement, Fulton agreed “for purposes of
Guideline Sections 2D1.1 and 1B1.3, that [he] shall be held
responsible for conspiring to distribute and distributing
more than 1.5 KG of cocaine base.” Plea Agreement 3,
ECF No. 108-1.
PSR determined that because “at least 1.5
kilograms” of cocaine base had been attributed to him,
he had a base offense level of 38. PSR ¶ 13, ECF No. 90.
The PSR's description of Fulton's offense conduct
stated that “[n]umerous co-conspirators indicated that
Fulton routinely traveled to New York on at least a weekly
basis where he purchased between 500 and 750 grams of cocaine
hydrochloride.” PSR ¶ 8. He continued this conduct
for well over a year, making him responsible for the
distribution of “well over 25 kilos of cocaine
base.” PSR ¶ 8. Fulton filed objections to the
PSR, disputing the factual basis upon which it determined
that he was an organizer and leader of the conspiracy, and
the calculation of his criminal history. However, Fulton
“fully acknowledge[d] all other offense conduct.”
Letter Obj. to PSR 1, ECF No. 47.
16, 2003, Fulton was sentenced to 360 months imprisonment,
the low end of his Sentencing Guidelines range of 360 months
to life imprisonment.
Judgment entered in Fulton's case indicates that the
court adopted the factual findings in the PSR. In its
Statement of Reasons, the court stated that the
“[d]efendant has an extensive criminal history, and was
the leader of conspiracy, that was responsible for over 25
kilos of cocaine base.” J. 8, ECF No. 55.
2012, Fulton filed a Motion for Reduction of Sentence in
light of Amendment 750 to the Sentencing Guidelines, which
reduced the guideline ranges for offenses involving cocaine
base. However, the court declined to reduce Fulton's
sentence because the more than 25 kilograms of cocaine base
attributed to him in the PSR and at sentencing remained above
the drug weight represented by a base offense level of 38
even after Amendment 750. The Fourth Circuit affirmed the
district court's decision, stating that “[b]ecause
Fulton's original criminal judgment specifically found
him responsible for over twenty-five kilograms of crack
cocaine, the district court correctly ruled that he is
ineligible for a reduction in sentence.” United
States v. Fulton, 533 Fed.Appx. 190, 190 (4th Cir. 2013)
present Motion for Reduction of Sentence has been fully
briefed and is ripe for decision.
argues that he is eligible for a reduced sentence because his
base offense level should be determined by the “at
least 1.5 kilograms of cocaine base” attributed to him
in the PSR's calculation of his base offense level,
rather than the more than 25 kilograms attributed to him in
the PSR's description of his offense conduct and at his
sentencing. Mot. Reduction of Sentence 1, ECF No. 100. Fulton
contends that the Fourth Circuit's decision in United
States v. Hodge, 902 F.3d 420 (4th Cir. 2018), supports
this reading of his PSR. However, the United States argues
that Hodge is inapplicable to Fulton's motion
and that he is ineligible for a reduced sentence.
may, after considering the factors set out in 18 U.S.C.
§ 3553(a) and if it is consistent with the applicable
Sentencing Commission policy statements, reduce a
defendant's term of imprisonment if he or she was
sentenced based on a guideline range that was later lowered
by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The relevant policy statement provides, among other things,
that a sentence reduction is not authorized if an amendment
“does not have the effect of lowering the
defendant's applicable guideline range.” USSG
§ 1B1.10(a)(2)(B). After Amendment 782, defendants held
accountable for 25.2 ...