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 Tyree Lamar Slade, a/k/a Ovious McFly,
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.
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 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
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”).
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.
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).
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 ...