United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Maurice Lewis (“Defendant”) has filed a motion
for reduction of sentence pursuant to the First Step Act of
2018. (Dkt. 112). The motion has been fully briefed and is
ripe for review. For the following reasons, the Court will
grant Defendant's motion.
Indictment was filed against Defendant on October 8, 2008.
(Dkt. 1). On March 19, 2009, he pled guilty to Count 1 of the
Indictment, manufacturing or possessing with the intent to
distribute and distributing a controlled substance, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18
U.S.C. § 2. (Dkts. 40, 41, 42). Pursuant to 21 U.S.C.
§ 841(b)(1)(A), this offense triggered a ten year
mandatory minimum sentence of imprisonment. Defendant later
filed a motion to reduce his sentence pursuant to Amendment
750, but it was denied due to his career offender status.
(Dkts. 83, 84, 85). Defendant then filed a motion to reduce
sentence in light of Hughes v. United States, 138
S.Ct. 1675 (2018), (dkt. 106), which is currently pending
before this Court. Defendant filed the instant motion
pursuant to the newly enacted First Step Act in February
2019. (Dkt. 112).
404 of the First Step Act of 2018 permits “a court that
imposed a sentence for a covered offense” to
“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. 115-015, § 404, 132
Stat. 015, 015 (2018). A “covered offense” is
defined as “a violation of a Federal criminal statute,
the statutory penalties for 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,
of sentences under the First Step Act are governed by 18
U.S.C. § 3582(c)(1)(B), which states: “The court
may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.” In determining if
modification is appropriate, the Court will first address
whether a reduction is consistent with the First Step Act,
and will then “consider whether the authorized
reduction is warranted, either in whole or in part, according
to the facts set forth in § 3553(a).” Dillon
v. United States, 560 U.S. 817, 826 (2010)
parties agree that Defendant's offense of conviction is a
“covered offense” as defined by the First Step
Act. The offense was committed before August 3, 2010 and the
applicable penalties were modified by section 2 of the Fair
Sentencing Act, which “reduced the statutory penalties
for cocaine based 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). As relevant
in this case, section 2 of the Fair Sentencing Act increased
the drug quantities necessary to trigger mandatory minimum
sentences under 21 U.S.C. § 841(b)(1). Pub. L. No.
111-220, 124 Stat. 2372 (2010). Specifically, the threshold
requirement to trigger the mandatory minimum sentence of ten
years under 21 U.S.C. § 841(b)(1)(A) was increased from
50 grams to 280 grams. Id.
initial sentencing guideline range, taking into account a
career offender enhancement pursuant to U.S.S.G. §
4B1.1, was 262-327 months' imprisonment. (Dkt. 111). The
Court imposed a sentence of 220 months' imprisonment.
(Id.). Under the First Step Act, Defendant's
guideline range is 188 to 235 months, and a comparable
variance would result in a sentence of 158 months.
(Id.). This calculation assumes Defendant's
designation as a career offender. At the time of his initial
sentencing, Defendant qualified as a career offender under
U.S.S.G. § 4B1.1 because he had at least two prior
felony convictions of either a crime of violence or a
controlled substance offense. (Dkt. 110 at 5). One of the
qualifying convictions was a North Carolina conviction for
assault with a deadly weapon on a government official.
(Id.). Pursuant to a recent Fourth Circuit case,
United States of America v. Simmons, a North
Carolina conviction for assault with a deadly weapon on a
government official is not categorically a “crime of
violence.” 917 F.3d 312, 318 (4th Cir. 2019).
Therefore, Defendant argues that if he was sentenced under
current law he would not be designated as a career offender
and his guideline sentence would be 70-87 months. (Dkt. 112
Court has been advised that Defendant's projected release
date is December 26, 2025, and, as of February 5, 2019, he
had served approximately 125 months of his sentence. (Dkt.
111). As of February 28, 2019, with full good time credit,
Defendant had served the equivalent of a 147 months sentence.
The Government does not dispute that Defendant is eligible
for some relief pursuant to the First Step Act, but they
disagree with Defendant regarding the terms of such relief.
consideration of the § 3553(a) factors as well as the
parties' arguments, the Court determines that a reduction
of Defendant's sentence to time served is appropriate.
The Court does not reach the reconsideration of
Defendant's career offender status, but does take into
consideration the fact that, if Defendant was sentenced under
current law, his sentence would be significantly lower.
See United States v. Newton, No. 5:02-cr-30020, ECF
No. 1463 at *6 (W.D.Va. March 1, 2019) (declining to reach
the issue of whether the court could change a career offender
designation in imposing a new sentence on a First Step Act
motion because the court could take “into account the
advisory nature of the Guidelines after Booker and
the considerations set forth in 18 U.S.C. §
3553(a)”). Additionally, the Court considers
Defendant's history and characteristics as reflected in
his positive Bureau of Prisons record, his offer of
employment, and his letters of support. (Dkt. 112 at 4-6).
Defendant's sentence will be followed by a term of
supervised release of 4 years. All other terms of the
original sentence will remain the same.
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to Defendant, all counsel of
record, the United States Probation Office, and the United
States Marshals Service, for delivery to the Bureau of
 Although subsection 3582(c)(1)(B) does
not reference 3553(a) as do other 3582(c) subsections, that
alone does not bar consideration of other factors. While the
Dillon Court analyzed the procedures under §
3582(c)(2), the language quoted is reflected in §
3582(c)(1)(B). Additionally, this approach is mirrored by the
Fourth Circuit's analysis under Rule 35(b), which allows
the Court to “consider other sentencing factors . . .
when deciding the extent of a reduction.” United
States v. Davis, 679 F.3d 190, 195 (4th Cir. 2012);
see also United States Sentencing Commission, Office
of Education and Sentencing Practice, FIRST STEP