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United States v. Stanback

United States District Court, W.D. Virginia, Harrisonburg Division

May 2, 2019

UNITED STATES OF AMERICA
v.
KELLY GEORGE STANBACK, Defendant

          MEMORANDUM OPINION

          HON. MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE

         Kelly George Stanback, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018. ECF No. 1449. He asks die court to reduce his current sentence of 248 months to time served. The government asserts that Stanback is ineligible for consideration of a reduction in his sentence, and in the alternative, that if he is eligible for consideration, a further reduction of his sentence is not warranted. The government suggests that the only relief to which Stanback is entitled is a reduction in his term of supervised release from 5 years to 4 years. For the reasons set forth below, the court will GRANT Stanback's request and modify his sentence to time served, to be followed by a 4-year term of supervised release.

         BACKGROUND

         On March 20, 2003, a jury convicted Stanback of one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 58); and three counts of distributing 5 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 60, 61, 62). Pursuant to 21 U.S.C. § 841(b)(1)(A) (2002), Stanback faced a statutory sentencing range of 10 years to life on the conspiracy charge. He faced a statutory sentencing range of 5 years to life on the distribution charge, 21 U.S.C. § 841(b)(1)(B), and 60 consecutive months on the possession of a firearm charge. 21 U.S.C. § 924(c)(1)(A). According to the PSR, it appeared that Stanback distributed well over 1.5 kilograms of cocaine base. ECF No. 1457 at 9.

         Under the sentencing guidelines, based on 1.5 kilograms of cocaine base, his base offense level was 38. He received a 4-point increase for his role in the offense, giving him a total offense level of 42. ECF No. 1457 at 9-10. Coupled with his criminal history category of I, his guideline range for the drug offense was 360-months to life. U.S.S.G. Ch. 5, Pt. A. On June 19, 2003, Stanback was sentenced to a term of 420 months, which represented die low end of the then-mandatory guidelines sentence of 360 months on the drug offenses, followed by 60 months on the firearm charge. The court also imposed a 5-year term of supervised release. ECF Nos. 292, 1455.

         Stanback's sentence has been reduced three times, pursuant to retroactive amendments to the drug weight sentencing guideline table. ECF No. 1455. Currendy, his base offense level is 32; his total offense level is 36; and the guideline range on his drug offenses is 188-235 months. His current sentence is 248 months, which represents 188 months on the drug offenses and 60 months on the firearm charge. He has served approximately 201 months and with good conduct time, his projected release date is January 2, 2021. Id.

         Stanback seeks relief under the First Step Act. He argues that he is eligible for relief and that because the sentencing guidelines are now advisory rather than mandatory, that this court has discretion to reduce his sentence to time served.

         I. First Step Act

         At the time Stanback was sentenced, a violation of § 841(a)(1) carried a mandatory minimum sentence of 10 years and a maximum sentence 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 passed, 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.

         The First Step Act was passed 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).

         The government argues that even though Stanback was sentenced prior to enactment of the Fair Sentencing Act of 2010, and even though his offenses carry the statutory penalties which were modified by the Section 2 or 3 of the Fair Sentencing Act, that he does not qualify for a sentence reduction. The government argues that it is the drug weight for which a defendant is held responsible and not the drug weight for which he was convicted that determines eligibility for First Step Act relief and that Stanback's drug quantity in the Presentence Investigation Report (PSR) makes him ineligible. In the alternative, the government contends that even if Stanback is eligible for a modification of his sentence, the court should exercise its discretion and decline to reduce the sentence.

         A. Drug Weight

         The government asserts that whether a defendant is entitled to relief under the First Step Act depends on the amount of cocaine base for which he was found responsible in the PSR, rather than the amount for which he was indicted and convicted. Because Stanback was found responsible for 1.5 kilograms on the conspiracy charge, which would make him subject to the 21 U.S.C. § 841(a)(1)(A) penalties, the government argues that he is not entitled to relief under the First Step Act.[1]

         Stanback responds that the drug weight is an element of the offense and that any fact that increases a mandatory minimum penalty is an element that must be charged in an indictment and proved to a jury beyond a reasonable doubt, citing Apprendi v. New Jersey. 530 U.S. 466 (2000) and Alleyne v. United States. 570 U.S. 99 (2013). Under those two cases, if Stanback were sentenced today, his ...


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