United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States;
C. Dickenson, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge.
defendant has filed motions to reduce sentence pursuant to
the First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194, 5220 (2018) (“2018 FSA” or
“Act”), which made retroactive certain provisions
of the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2, 124 Stat. 2372, 2372 (2010) (“2010
FSA”). While I find the defendant eligible for relief,
I will not reduce his sentence of imprisonment.
2 of the 2010 FSA reduced the 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). After the enactment of the
2010 FSA, a violation of 21 U.S.C. § 841(a)(1) must
involve at least 280 grams of cocaine base, rather than 50
grams, to trigger the 10-years-to-life penalty range of 21
U.S.C. § 841(b)(1)(A) and 28 grams of cocaine base,
rather than five grams, to trigger the 5-to-40 years penalty
range of 21 U.S.C. § 841(b)(1)(B). The 2018 FSA provides
that the court may, on motion of the defendant, the Director
of the Bureau of Prisons, the attorney for the Government, or
the court, impose a reduced sentence as if the 2010 FSA were
in effect at the time the defendant's crime was
committed. 2018 FSA § 404(b).
defendant whose crack cocaine drug crime was committed before
August 3, 2010, may be eligible for reduction in sentence,
2018 FSA § 404(a), the Act provides that the court is
not required to reduce any sentence, id. at §
404(c). Thus, the court must first consider whether the
defendant is eligible for a reduction in sentence. Second, if
the defendant is eligible for reduction, the court must
determine whether, and to what extent, a reduction is
warranted. Cf. Dillon v. United States, 560 U.S.
817, 827 (2010) (setting forth procedures for modifying
sentences under retroactive guideline amendments). If
eligible, a plenary resentencing is not appropriate, since
the statute only authorizes the court to impose a
“reduced sentence.” 2018 FSA § 404(b).
defendant was indicted in this court on February 14, 2002,
and charged with, among other things, conspiring to possess
with the intent to distribute 50 grams or more of cocaine
base in violation of 21 U.S.C. §§ 841(b)(1)(A) and
846 (Count Two), and possessing with the intent to distribute
50 grams or more of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A) (Count Three).
April 17, 2003, the defendant pleaded guilty to Count Two
pursuant to a written plea agreement. According to the
Presentence Investigation Report, the defendant was held
accountable for approximately 499 grams of cocaine base. He
was determined to have a total offense level of 33 and a
criminal history category of V, yielding a guideline range of
210 to 262 months imprisonment.
17, 2003, the defendant was sentenced under the
then-mandatory guidelines to 262 months imprisonment, to be
followed by five years of supervised release. Subsequently,
the defendant filed motions for a reduced sentence pursuant
to retroactive amendments to the U.S. Sentencing Guidelines.
Based on these motions, the defendant's sentence was
ultimately reduced to 140 months imprisonment, to be followed
by five years of supervised release. The Probation Office of
this court estimates that the defendant has already served
approximately 95 months of his sentence. The Bureau of
Prisons calculates his current projected release date to be
April 19, 2022.
United States argues that the defendant is ineligible for a
reduction in sentence in light of the drug weight attributed
to him at sentencing. The United States contends that because
the offense involved at least 499 grams of cocaine base, as
established by the PSR, it involved a drug quantity over the
revised threshold of 280 grams established in the 2010 FSA.
The government argues that Latten was thus properly sentenced
to 262 months - within the statutory range of 20 years to
life under § 841(b)(1)(A). The government contends that
the court may rely on the drug weight found in the PSR,
despite the principles announced in Alleyne v. United
States, 570 U.S. 99 (2013), and Appendi v. New
Jersey, 530 U.S. 466 (2000), because it has been held
that these principles are not applicable retroactively on
collateral review. Alternatively, the government contends
that even if Latten is eligible for a reduction below the
statutory range set out in § 841(b)(1)(A), the court
should not exercise its discretion to do so. It bases this
argument in part on the ground that the court should at least
take into account the drug weight found in the PSR, to
reflect the serious nature of Latten's crime.
See 18 U.S.C. § 3553(a)(2)(A) (providing that
in determining a sentence, the court should consider the need
to reflect the seriousness of the offense).
to § 404, a defendant is eligible for reduction if he
was convicted of a “covered offense” before the
effective date of the 2010 FSA and is not otherwise excluded
by the limitations of § 404(c). Latten was convicted of a
covered offense since he was convicted pre-2010 FSA of
“a violation of a Federal criminal statute, the
statutory penalties for which were modified by [the 2010
FSA].” § 404(a). None of the exclusions of §
404(c) apply to him. Under the 2018 FSA, the quantity of
drugs involved in the conviction are not a condition of
eligibility, whether such quantity was charged in the
indictment, found by a jury, ...