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States v. Buckery

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

July 1, 2019

UNITED STATES OF AMERICA
v.
BRIAN KEITH BUCKERY, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States

          Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE

         Brian 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.

         I.

         Section 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).

         Both 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).

         While a 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.

         II.

         The 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.[1]

         On 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.

         On 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.[2] 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 sentence.

         III.

         The 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 ...


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