United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
Miguel Aybar, represented by counsel, filed a motion to
reduce his sentence pursuant to Section 404(b) of the First
Step Act of 2018. ECF No. 119. He asks the court to reduce
his term of imprisonment from 120 months to 70 months. After
filing the motion for modification of his sentence, Aybar was
released from prison because he had fully served his sentence
and he currently is on supervised release. The government
agrees that Aybar is eligible for consideration of a
reduction of his sentence, but asserts that relief should be
limited to a reduction in his term of supervised release from
5 years to 4 years. For the reasons set forth below, the
court will GRANT Aybar's request in part
and DENY it in part. His sentence will be
modified to time served, rather than 70 months, to be
followed by a 4-year term of supervised release.
6, 2010 Aybar was indicted on one count of possessing with
intent to distribute 50 grams or more of a mixture containing
a detectable amount of cocaine base, in violation of 21
U.S.C. §§ 841 (a)(1) and 841 (b)(1)(A). On August
5, 2010 Aybar was charged by superseding indictment with one
count of conspiracy to distribute and possess with intent to
distribute more than 50 grams or more of a mixture containing
cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A) (Count 1), and one count of
possessing with intent to distribute, as a principal and
aider and abettor, 50 grams or more of a mixture containing
cocaine base, in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1) and 846(b)(1)(A) (Count 2). ECF
No. 25. The government also filed an information to establish
a prior conviction for possession with intent to distribute
cocaine in the Superior Court for the County of Middlesex,
New Jersey. ECF No. 22.
October 1, 2010 Aybar entered into a Rule 11(c)(1)(C) plea
agreement where he pleaded guilty to Count 1, with the
understanding that Count 2 would be dismissed at sentencing.
The parties agreed that Aybar would be sentenced to 120
months. ECF Nos. 64, 124. On October 5, 2010 the government
moved to withdraw the 21 U.S.C. § 851 enhancement. ECF
No. 66. Aybar pleaded guilty in accordance with the plea
agreement on October 6, 2010. ECF Nos. 68, 73. On January 6,
2011 Aybar was sentenced to 120 months on Count 1, to be
followed by a 5-year term of supervised release. Count 2 was
dismissed. ECF No. 82.
PSR it was stated that Aybar was responsible for at least 196
but not more than 280 grams of cocaine base. ECF No. 124. He
had a total offense level of 27 and a criminal history
category of III, which resulted in a guideline range of 87 to
108 months. U.S.S.G. Ch. 5 Pt. A; ECF No. 124. His 120-month
sentence reflected the statutory minimum sentence. 21 U.S.C.
§ 841(b)(1)(A) (2008). ECF Nos. 86, 126. Aybar was
released from custody to his term of supervised release on
February 1, 2019.
to passage of the Fair Sentencing Act, 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) (2008).
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.
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).
parties agree that the First Step Act applies to Aybar.
Because he pleaded guilty to 50 grams of cocaine base, and
had an accountable drug weight of 196 to 280 grams of cocaine
base, if he had been sentenced under the Fair Sentencing Act,
he would have had a mandatory minimum sentence of 60 months
and a guideline sentencing range of 70-87 months. 21 U.S.C.
§ 841 (b)(1)(B) (2008). U.S.S.G. Ch. 5 Pt. A.
Aybar been sentenced in accordance with the Fair Sentencing
Act, the appropriate sentence would have been 70 months
followed by a 4-year term of supervised release. A sentence
of 70 months is the bottom of the guidelines range and
corresponds to the 120-month sentence which was the statutory
mandatory minimum sentence in his case. Thus, an appropriate
sentence for Aybar under the First Step Act would be 70
months, followed by a 4-year term of supervised release.
Aybar has been released on supervision, his sentence will be
modified to time served, rather than 70 months, and a 4-year
period of supervised release. Aybar argues that he is
entitled to have his sentence modified to 70 months and
should be allowed to apply his overserved time against any
future violation of supervised release. The court declines to
allow Aybar to have "banked" time to apply to a
future violation of supervised release. While it is
unfortunate that Aybar served more time in prison than he
would have had he been sentenced under the Fair Sentencing
Act, nothing in the First Step Act makes it appropriate to
allow a defendant to "bank" any time he overserved
against future violations of his conditions of supervised
release. Also, Aybar would have very little incentive to
comply with the conditions of supervised release if he were
allowed to use the excess time he served in prison to offset
any time he might be ordered to serve for violation of the
terms of his supervised release. See United States v.
Johnson, 529 U.S. 53, 59 (2000) (declining to allow
excess prison time to be applied to a term of supervised
release, reasoning that the objectives of supervised release
would be thwarted if excess prison time were applied to
offset and reduce the term).
court will GRANT Aybar's's emergency
motion to reduce his sentence, ECF No. 119, and modify his
sentence to time served, to be followed by a 4-year term of
supervised release. The court will DENY his
request to modify his sentence to 70 months. The court finds
that a sentence of time served is sufficient, but not greater
than necessary, and accounts for the sentencing factors the
court must consider ...