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United States v. Welch

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

May 13, 2019

UNITED STATES OF AMERICA
v.
DAMONTE ANTONIO WELCH, Defendant

          MEMORANDUM OPINION

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

         Damonte Antonio Welch, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018. ECF No. 391. He asks the court to reduce his current sentence of 120 months to time served. The government asserts mat Welch is ineligible for consideration of a reduction in his sentence, and in the alternative, mat if he is eligible for consideration, a further reduction of his sentence is not warranted. For the reasons set form below, the court will GRANT Welch's request and modify his sentence to time served, to be followed by a 4-year term of supervised release.

         BACKGROUND

         On August 3, 2010, a complaint was filed against Welch, alleging that on or about January 29, 2010, March 12, 2010, and March 16, 2010, he distributed a measurable amount of cocaine base and mat from on or about 2006 until March 16, 2010, he had conspired to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. ECF No. 1. On August 26, 2010, Welch was indicted and charged with one count of conspiring to distribute and possessing with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846 (Count 1), and three counts of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 29-31). ECF Nos. 49, 162.

         On November 1, 2010 Welch entered into a plea agreement where he pleaded guilty to Count 1 in exchange for the government dismissing Counts 29-31. He also agreed to be responsible for greater than 500 grams but less than 1.5 kilograms of cocaine base, recognizing that the matter of drug weight was a factual matter to be determined the court, which could disregard the stipulation and fix the actual drug weight at a higher or lower amount. ECF No. 128 at 3.

         Pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A), Welch faced a statutory sentencing range of 10 years to life. Under the sentencing guidelines, based on at least 500 grams of cocaine base, his base offense level was 32. He received a 2-point increase for possession of a dangerous weapon during the conspiracy and a 3-point decrease for acceptance of responsibility for a total offense level of 31. ECF No. 162. Coupled with a criminal history category of I, his guideline range was 108-135 months. U.S.S.G. Ch. 5, Pt. A. However, because the statutory mandatory minimum was 120 months, his guideline range was 120-135 months. U.S.S.G. § 501.1(c)(2).[1]

         On January 27, 2011, Welch was sentenced to a term of 120 months to be followed by a 5-year term of supervised release. ECF No. 159. He has served approximately 100 months and his projected release date is August 2, 2019. ECF No. 390.

         Welch seeks relief under the First Step Act. He argues that he is eligible for relief and that this court has discretion to reduce his sentence to time served.

         I. First Step Act

         At the time Welch 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 die 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 Welch committed his offense before August 3, 2010, and even though his offenses carry the statutory penalties which were modified by 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 Welch's drug quantity in the Presentence Investigation Report (PSR) makes him ineligible. In the alternative, the government contends that even if Welch 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 Welch was found responsible for more than 500 grams of cocaine base, which would make him subject to the 21 U.S.C. § ...


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