United States District Court, W.D. Virginia, Harrisonburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Todd Herbert (“Defendant”) has filed a motion for
reduction of sentence pursuant to the First Step Act of 2018.
(Dkt. 249). The motion has been fully briefed and is ripe for
review. For the following reasons, the Court will grant
initial indictment was filed against Defendant on March 27,
1997. (Dkt. 1). First and second superseding indictments were
filed on June 13, 1997 and September 25, 1997 respectively.
(Dkts. 21, 48). The second superseding indictment charged
Defendant with conspiracy to distribute cocaine base in
violation of 21 U.S.C. 21 U.S.C. §§ 846, 841(a)(1),
and 841(b)(1)(A). (Dkt. 250). On January 15, 1998, a jury
found him guilty of that charge. (Dkt. 116). Pursuant to the
then mandatory guidelines, Defendant was sentenced to life
imprisonment. Defendant later filed a motion to reduce his
sentence pursuant to Amendment 750, this motion was granted
and his sentence was reduced to a term of 360 months. (Dkt.
239). Defendant then filed a motion to reduce his sentence
pursuant to Amendment 782, this motion was also granted and
Defendant's sentence was reduced to 324 months. (Dkt.
242). Defendant filed the instant motion pursuant to the
newly enacted First Step Act in February 2019. (Dkt. 249).
404 of the First Step Act of 2018 permits “a court that
imposed a sentence for a covered offense” to
“impose a reduced sentence as if sections 2 and 3 of
the Fair Sentencing Act of 2010 (Public Law 111-220; 124
Stat. 2372) were in effect at the time the covered offense
was committed.” Pub. L. No. 115-015, § 404, 132
Stat. 015, 015 (2018). A “covered offense” is
defined as “a violation of a Federal criminal statute,
the statutory penalties for which were modified by section 2
or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220;
124 Stat. 2372), that was committed before August 3,
of sentences under the First Step Act are governed by 18
U.S.C. § 3582(c)(1)(B), which states: “The court
may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.” In determining if
modification is appropriate, the Court will first address
whether a reduction is consistent with the First Step Act,
and will then “consider whether the authorized
reduction is warranted, either in whole or in part, according
to the facts set forth in § 3553(a).” Dillon
v. United States, 560 U.S. 817, 826 (2010)
parties agree that Defendant's offense of conviction was
a violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A), that the offense was committed before August 3,
2010, and that the applicable penalties were modified by
section 2 of the Fair Sentencing Act, which “reduced
the statutory penalties for cocaine based offenses” in
order to “alleviate the severe sentencing disparity
between crack and powder cocaine.” United States v.
Peters, 843 F.3d 572, 575 (4th Cir. 2016). As relevant
in this case, section 2 of the Fair Sentencing Act increased
the drug quantities necessary to trigger mandatory minimum
sentences under 21 U.S.C. § 841(b)(1)(A). Pub. L. No.
111-220, 124 Stat. 2372 (2010). Specifically, the threshold
requirement to trigger the mandatory minimum sentence of ten
years under 21 U.S.C. § 841(b)(1)(A) was increased from
50 grams to 280 grams. Id.
agreement as to these facts, the Government argues that
Defendant is not eligible for a reduction pursuant to the
First Step Act because the pre-sentencing report
(“PSR”) states that the offense involved a drug
quantity over the revised threshold. (Dkt. 255). In
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
the Supreme Court held that “other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” In Alleyne v. United States, 570 U.S.
99, (2013), 108 the Court expounded upon that rule, holding
that “facts that increase the mandatory minimum
sentence are  elements and must be submitted to the jury
and found beyond a reasonable doubt.” Here “the
jury found [Defendant] ‘guilty beyond a reasonable
doubt of knowingly conspiring to distribute or possess with
the intent to distribute more than fifty (50) grams of a
mixture of substance containing cocaine base.'”
(Dkt. 256 1-2 (quoting dkt. 155)). Nevertheless, the
Government argues, based on Defendant's PSR, that
Defendant's conviction involved a drug quantity above 280
grams, thus he is properly subjected to the revised mandatory
minimums set forth in 21 U.S.C. § 841(b)(1)(A).
Government contends that the Apprendi/Alleyne
doctrine does not apply in the First Step context because
neither case is retroactively applicable on collateral
review. (Dkt. 255 (citing United States v. Sanders,
247 F.3d 139, 150-51 (4th Cir. 2001)). While the Government
is correct that the Apprendi/Alleyne
doctrine cannot be applied retroactively to afford relief on
collateral review, individuals are eligible for relief under
the First Step Act where they were convicted of a
“covered offense” as defined by Section 404 of
the First Step Act. Pub. L. No. 115-015, § 404, 132
Stat. 015, 015 (2018). Accordingly, the Court will consider
the crime of conviction not the conduct reported in the PSR.
In doing so, this Court joins others in this district finding
the holdings of Apprendi and Alleyne
applicable in the First Step context. See, e.g., United
States v. Ancrum, No. 2-30020, 2019 WL 2110589 (W.D. Va.
May 14, 2019) (J. Urbanski) (“although
Apprendi and Alleyne are not retroactively
applicable on collateral review, this court joins other
courts in finding that their holdings are applicable in the
context of the First Step Act”) (collecting cases).
relief consistent with the First Step Act, the Court next
“consider[s] whether the authorized reduction is
warranted, either in whole or in part, according to the facts
set forth in § 3553(a).” Dillon, 560 U.S.
at 826. The Government argues that the Court should exercise
its discretion in denying relief for two reasons: (1) relief
should be denied based on the drug weight reported in the PSR
and “the fact that [Defendant] would remain subject to
the higher penalties if he had been prosecuted after the
enactment of the Fair Sentencing Act, (dkt. 255 at 9), and
(2) relief would provide Defendant with an unfair windfall as
compared to defendants sentenced after the enactment of the
Fair Sentencing Act, but before Alleyne. This Court
does not find either argument persuasive.
first argument is based on the hypothetical prosecution of
Defendant today. As noted in United States v.
Stanback, No. 5:02-cr-30020, 2019 WL 1976445, *4 (W.D.
Va. May 2, 2019), “[w]hile it is possible that the
government would have proceeded against [the defendant] under
18 U.S.C. §841(b)(1)(A), it also is possible that it
would not . . . The retroactive assumption suggested by the
government simply is too speculative a basis on which to
determine” the eligibility or extent of Defendant's
relief. As for the Government's second argument, this
Court has already stated that it will consider the sentence a
defendant would receive if he “was sentenced under
current law.” United States v. Lewis,
No. 3:08-cr-39 (W.D. Va. May 8, 2019) (emphasis added). The
Government suggests that Defendant should be sentenced as he
would have been prior to the decision in Alleyne.
However, this Court is informed by the current
constitutional precedent and will make a determination in
accordance with those principles. Stanback, 2019 WL
1976445 at *4 (“While the court is aware of the need
for consistent sentences among defendants, it is not free to
ignore either the law or constitutional precedent.”).
initial, mandatory sentencing guideline range was life. (Dkt.
250). The Court has taken each opportunity to reduce
Defendant's sentence to the bottom end of his adjusted
guideline range, resulting in his current sentence of 324
months. (Dkt. 251). The Court has been advised that
Defendant's projected release date is June 20, 2022, and,
as of March 4, 2019, he had served approximately 243 months
of his sentence. (Id.).
consideration of the § 3553(a) factors, including the
history and characteristics of Defendant, as well as the
parties' arguments, the Court determines that a reduction
of Defendant's sentence is appropriate. Specifically, the
Court notes that Defendant was not previously credited for
the twenty four months he served in New York state custody on
a related offense. (Dkt. 249). This Court found that
Defendant's PSR “concluded that [his] state offense
was ‘related' to his federal charges”, that
the United States Probation Office agreed that
Defendant's state offense is related to his federal
offense, and “[t]he Probation Office has also confirmed
that [Defendant] served two years in New York custody on the
related offense.” (Dkt. 245 at 5). If Defendant were
sentenced today he would likely be sentenced to the low end
of the guideline range, 324 months' imprisonment, and
fairness demands this Court take into consideration his time
served but not previously credited. Thus, Defendant's
sentence will be reduced to 300 months, but not less than
time served. His sentence will be followed by a term of
supervised release of 4 years. All other terms of the
original sentence will remain the same.
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to Defendant, all counsel of
record, the United States Probation Office, and the United