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