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 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.
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 (Count One), and 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) and (b)(1)(B)
(Count Two). 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
of mandatory life imprisonment due to at least two prior
felony drug convictions.
October 6, 2008, the defendant pleaded guilty to Count One
pursuant to a written plea agreement. The United States
agreed in the Plea Agreement that only one conviction would
apply under 21 U.S.C. § 851, subjecting Lee to a
mandatory 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. As a result, his Sentencing Guideline range was
enhanced in accordance with U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1. According to the
Presentence Investigation Report, the defendant was held
accountable for approximately 51.35 kilograms of cocaine
base. He was determined to have a total offense level of 41
and a criminal history category of V, yielding a guideline
range of 360 months to life imprisonment.
8, 2009, the defendant was sentenced under the advisory
guidelines to 180 months imprisonment, to be followed by ten
years of supervised release. The court departed from the
guideline range due to the defendant's substantial
assistance to the government. USSG § 5K1.1. The Bureau
of Prisons calculates his current projected release date to
be May 25, 2021. The Probation Office estimates that he has
served approximately 134 months of his sentence.
United States argues that the defendant is ineligible for a
reduction in sentence in light of the drug weight attributed
to him at sentencing. The United States contends that because
the offense involved at least 51.35 kilograms of cocaine
base, as established by the PSR, it involved a drug quantity
over the revised threshold of 280 grams established in the
2010 FSA. The government argues that Lee was thus properly
sentenced to 180 months - already below the statutory range
of 20 years to life under § 841(b)(1)(A). The government
contends that the court may rely on the drug weight found in
the PSR, despite the principles announced in Alleyne v.
United States, 570 U.S. 99 (2013), and Appendi v.
New Jersey, 530 U.S. 466 (2000), because it has been
held that these principles are not applicable retroactively
on collateral review. Alternatively, the government contends
that even if Lee is eligible for a reduction below the
statutory range set out in § 841(b)(1)(A), the court
should not exercise its discretion to do so. It bases this
argument in part on the ground that the court should at least
take into account the drug weight found in the PSR, to
reflect the serious nature of Lee's crime. See
18 U.S.C. § 3553(a)(2)(A) (providing that in determining
a sentence, the court should ...