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United States v. Smith

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

May 13, 2019

UNITED STATES OF AMERICA
v.
OTIS ANTONIO SMITH, Defendant

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski, Chief United States District Judge

         Otis Antonio Smith, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018. ECF No. 826. He asks the court to reduce his current sentence of 262 months to 135 months, but not less than time served, which will result in his immediate release. The government asserts that Smith 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. In the event the court determines that Smith is entitled to a reduction in his sentence, the government argues that the sentence should not be less than the guideline range of 188-235 months followed by a 4-year term of supervised release. For the reasons set forth below, the court will GRANT Smith's request in part and modify his sentence to 188 months, but not less than time served, to be followed by a 4-year term of supervised release.

         BACKGROUND

         On October 1, 2004, Smith entered into a plea agreement in which he pleaded guilty to conspiring to distribute and possess 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. § 846. In exchange, the government agreed to dismiss the remaining counts. ECF No. 206. On October 18, 2004, Smith pleaded guilty in accordance with the plea agreement. ECF Nos. 216, 217. The government had filed a notice of enhancement pursuant to 21 U.S.C. §851, but withdrew the notice pursuant to the plea agreement. ECF Nos. 187, 268.

         Pursuant to 21 U.S.C. § 841(b)(1)(A) (2002), Smith faced a statutory sentencing range of 10 years to life on the conspiracy charge. According to the PSR, Smith was responsible for between 500 grams and 1.5 kilograms of cocaine base. ECF No. 827. Under the sentencing guidelines, that drug quantity resulted in a base offense level of 36. He received a 2-point increase for possessing a firearm during his drug trafficking activities and a 3-point increase for his role in the offense. He also received a 3-point decrease for acceptance of responsibility, for a subtotal offense level of 38.

         However, because Smith had two prior felony drug convictions which made him a career offender, his base offense level was 37. U.S.S.G. § 4B1.1(a). When the 3-point decrease for acceptance of responsibility was applied, his subtotal offense level was 34. Nevertheless, because the subtotal offense level based on drug weight was 38, his total offense level was 38. U.S.S.G. §4B1.1(b). Coupled with a criminal history category of VI, Smith's guideline sentencing range was 360 months to life. U.S.S.G. Ch. 5, Pt. A.

         On July 7, 2005, Smith was sentenced to a 360-month term of imprisonment to be followed by a 5-year term of supervised release. ECF No. 381. In 2008, Smith's sentence was reduced to 292 months as a result of Amendments 706, 711, and 715 to the sentencing guidelines. In 2011 it was reduced to 262 months as a result of Amendment 750 to the guildelines. ECF No. 828. Smith has served 176 months and his current projected release date is June 30, 2024. Id.

         Smith seeks relief under the First Step Act. He argues that because his prior felony drug convictions were dismissed, he is no longer a career offender, which results in a guideline range of 135-168 months. In the alternative, he argues that even with the career offender designation, his new guideline range is 188-235 months and he asks the court to modify his sentence to 188 months.

         I. First Step Act

         At the time Smith 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) (2002). 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 Smith 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 Section 2 or 3 of the Fair Sentencing Act, he does not qualify for a sentence reduction. The government asserts 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 Smith's drug quantity in the Presentence Investigation Report (PSR) makes him ineligible. In the alternative, the government contends that even if Smith is eligible for a modification of his sentence, the court should exercise its discretion and decline to reduce the sentence.

         II. 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 Smith was found responsible for between 500 grams and 1.5 kilograms on the conspiracy charge, which would make him subject to the 21 U.S.C. ...


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