United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge
defendant has filed a motion to reduce his 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 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).
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 February 3, 2009, and
charged with possessing 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). The United States filed an
Information to establish the defendant's prior
convictions pursuant to 21 U.S.C. § 851, subjecting him
to mandatory life imprisonment.
12, 2009, the defendant pleaded guilty pursuant to a written
plea agreement. The United States agreed that only one
conviction would apply under 21 U.S.C. § 851, subjecting
him to a mandatory minimum of 20 years imprisonment and a
maximum of life, and a 10-year term of supervised release.
The parties also stipulated that the defendant was a career
offender. According to the Presentence Investigation Report
(“PSR”), the defendant was held accountable for
approximately 82.9 grams of cocaine base. 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 under the U.S. Sentencing Guidelines
December 8, 2009, the defendant was sentenced under the
advisory guidelines to 262 months imprisonment, to be
followed by 10 years of supervised release. He thereafter
moved for a reduction in his sentence based upon the
USSG's retroactive Amendment 750, which the court denied.
Order, Dec. 2, 2011, ECF No. 67, appeal dismissed,
No. 11, 7698 (4th Cir. Feb. 21, 2012). The court also denied
France's request for reduction in sentence based upon the
USSG's retroactive Amendment 782. United States v.
France, No. 1:09CR00006, 2015 WL 13158497, at *2 (W.D.
Va. Apr. 24, 2015), aff'd, 637 Fed.Appx. 733
(4th Cir. 2016) (unpublished). On December 19, 2016, the
defendant received an Executive Grant of Clemency from
President Obama, reducing his sentence to 188 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 12, 2022. The
Probation Office of this court estimates that France has
served 10 years and six months of his sentence.
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 modified by the Fair Sentencing
Act; rather, he is serving a new sentence imposed by the
I find that the Executive Grant of Clemency does not render
the defendant ineligible for relief under the 2018 FSA. The
Executive Grant states, “I hereby further commute the
total sentence of imprisonment . . ., leaving intact and in
effect the 10-year term of supervised release with all its
conditions and all other components of the sentence.”
Executive Grant of Clemency 3, ECF No. 98. “In other
words, the commutation shortened an existing sentence, it did
not impose a new sentence that would place it outside the
reach of the First Step Act.” United States v.
Dodd, 372 F.Supp.3d 795, 798 (S.D. Iowa 2019) (internal
quotation marks and citation omitted). In addition, the
Fourth Circuit's holding in United States v.
Surratt, 855 F.3d 218 (4th Cir. 2017), does not
implicate the defendant's eligibility for relief under
the 2018 FSA. Surratt stands for the proposition
that “the commutation of a sentence moots a legal
challenge to the unlawfulness of the prior sentence when the
commutation cures the alleged unlawful defect in that
sentence.” Dodd, 372 F.Supp.3d at 799.
However, defendants moving for reduced sentences pursuant to
the 2018 FSA are not challenging the unlawfulness of their
sentence; rather, they are seeking additional relief under
new statutory authority.
under the 2018 FSA, the new statutory sentencing range, if
applied to the defendant with the § 851 Information, is
10 years to life imprisonment and at least eight years of
supervised release. 21 U.S.C. § 841(b)(1)(B). The
defendant remains a career offender based on an offense of