United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
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.
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.
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.
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.
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.
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.
First Step Act
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.
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).
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.
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. ...