United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States;
J. Beck, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
defendant has filed a motion 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, but I
will not reduce his current term 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).
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
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 May 28, 2008, and
charged with conspiring to distribute and possess with the
intent to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846. The United States filed an Information to establish the
defendant's prior convictions pursuant to 21 U.S.C.
§ 851, subjecting him to an increased penalty range of
mandatory life imprisonment to be followed by a 10-year term
of supervised release due to two or more prior drug
October 29, 2008, a jury found the defendant guilty of
conspiring to distribute and possess with the intent to
distribute 50 grams or more of cocaine base. According to the
Presentence Investigation Report (“PSR”), the
defendant was accountable for approximately 730 grams of
cocaine base. However, after hearing evidence at sentencing,
the court found the defendant accountable for 638 grams of
cocaine base. Sent. Tr. 18, ECF No. 2401. He was determined
to have a total offense level of 34 and a criminal history
category of IV. Because of the mandatory term of
imprisonment, his guideline sentence was determined to be
life imprisonment. USSG § 5G1.1(b).
September 8, 2009, the defendant was sentenced to life
imprisonment, to be followed by 10 years of supervised
release. On January 17, 2017, the defendant received an
Executive Grant of Clemency from President Obama, reducing
his sentence to 168 months incarceration and leaving in
effect the 10-year term of supervised release. The Bureau of
Prisons calculates his current projected release date to be
August 6, 2020.
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 ...