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United States v. Slade

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

July 12, 2019


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

          Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.


          James P. Jones United States District Judge

         The defendant Tyree Lamar Slade, a/k/a Ovious McFly, [1] has filed motions 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, and I will grant the motions.


         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).[2]

         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. 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).


         The defendant was indicted in this court on May 28, 2008, and charged with conspiring to possess with the intent to distribute and 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 drug convictions pursuant to 21 U.S.C. § 851, subjecting him to a mandatory sentence of life imprisonment to be followed by a 10-year term of supervised release.

         On December 1, 2008, the defendant pleaded guilty pursuant to a written Plea Agreement. In the agreement, the United States agreed that only one conviction would apply under 21 U.S.C. § 851, subjecting Slade to a minimum term 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 4.5 kilograms of cocaine base. He was determined to have a total offense level of 35 and a criminal history category of V, yielding a range of 262 to 327 months imprisonment under the U.S. Sentencing Guidelines Manual (“USSG”).

         On March 2, 2009, the defendant was sentenced under the advisory guidelines to 300 months imprisonment, to be followed by 10 years of supervised release. His appeal was unsuccessful. United States v. Slade, 371 Fed.Appx. 421, 421-22 (4th Cir. 2010) (unpublished). Subsequently, the court reduced the defendant's sentence to 269 months imprisonment pursuant to the retroactive USSG Amendment 750. Order, Nov. 8, 2011, ECF No. 2691.

         Thereafter, Slade filed a motion to vacate his sentence under 28 U.S.C. § 2255 on the ground that his convictions under North Carolina law no longer qualified as predicates for a career offender sentencing enhancement in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Following a response from the government, I denied the motion on the basis of Slade's waiver of collateral attack contained in his Plea Agreement. United States v. Slade, No. 1:08CR00024-005, 2014 WL 801332, at *5 (W.D. Va. Feb. 28, 2014), appeal dismissed, 600 Fed.Appx. 185 (4th Cir. 2015) (unpublished). I later denied a reduction in Slade's sentence pursuant to retroactive Amendment 782. United States v. Slade, No. 1:18CR00024-005, 2015 WL 7313880, at *2 (W.D. Va. Nov. 20, 2015), aff'd, 645 Fed.Appx. 296 (4th Cir.) (unpublished), cert. denied, 137 S.Ct. 343 (2016).

         The Bureau of Prisons calculates Slade's current projected release date to be August 28, 2028. The Probation Office of this court estimates that he has ...

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