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
Keith Buckery, a federal inmate sentenced by this court, 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”). I find the
defendant eligible for relief, and I will grant the motions.
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).
before and after the 2018 FSA, if the government gives
appropriate notice prior to sentencing pursuant to 21 U.S.C.
§ 851, and the defendant is found to have been
previously convicted of one or more certain types of drug
crimes, the minimum and maximum terms of imprisonment and
minimum terms of supervised release are increased. 21 U.S.C.
§ 841(b)(1)(A), (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
defendant was indicted in this court on June 24, 2008, and
charged with possessing with the intent to distribute and
distributing five grams or more of cocaine base in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B). The United States
filed a Sentencing Enhancement Information to establish the
defendant's prior drug convictions pursuant to 21 U.S.C.
§ 851, subjecting him to an increased penalty range of a
mandatory minimum of 10 years imprisonment and a maximum of
life, and an eight-year period of supervised release, due to
at least one prior felony drug conviction.
October 14, 2008, the defendant pleaded guilty. According to
the Presentence Investigation Report (“PSR”), the
defendant was held accountable for approximately 36.3 grams
of cocaine base, consisting of 12.3 grams found on his person
and $2, 426 seized from his person and converted to the
equivalent amount of cocaine base. The defendant was
determined to be a career offender, and his Sentencing
Guideline range was enhanced in accordance with U.S.
Sentencing Guidelines Manual (“USSG”) §
4B1.1. He was determined to have a total offense level of 34
and a criminal history category of VI, yielding a guideline
range of 262 to 327 months imprisonment.
January 26, 2009, the defendant was sentenced below the
advisory guideline range to 240 months imprisonment to be
followed by eight years of supervised release. On November 4,
2016, the defendant received an Executive Grant of Clemency
from President Obama, reducing the term of his sentence to
151 months incarceration and leaving in effect the eight-year
term of supervised release. The Bureau of Prisons calculates
his current projected release date to be July 19, 2019. The
Probation Office estimates that the defendant has served
approximately 129 months of imprisonment to date on his
United States argues that the defendant is ineligible for a
reduction in sentence due to his receipt of an Executive
Grant of Clemency. In particular, it contends that because
the defendant is serving a presidentially commuted sentence,
he is no longer serving a sentence for an offense for which
the statutory penalties were ...