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, and I
will grant the motion.
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).
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 September 24, 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),
December 16, 2008, a jury found the defendant guilty.
According to the Presentence Investigation Report
(“PSR”), the defendant was held accountable for
approximately 1.41 kilograms of cocaine base. He was
determined to have a total offense level of 32 and a criminal
history category of VI, yielding a guideline range of 210 to
262 months imprisonment.
February 12, 2009, the defendant was sentenced under the
advisory guidelines to 156 months imprisonment, to be
followed by eight years of supervised release. The court
varied below the guideline range on the grounds that many of
Jones' coconspirators received a lower base offense level
because of favorable plea agreements even though they may
have distributed a greater quantity of drugs, and because
Jones was a marginal member of the overall conspiracy. Sent.
Tr. 24-26, ECF No. 117. The Bureau of Prisons calculates his
current projected release date to be June 10, 2020. The
Probation Office estimates that he has served approximately
125 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 1.41 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 Jones was thus properly
sentenced to 156 months - within the statutory range of 10
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 Apprendi 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 Jones 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 Jones's crime. See
18 U.S.C. § 3553(a)(2)(A) (providing that in determining
a sentence, the court should consider the need to reflect the
seriousness of the offense). Jones contends that the
principles announced in Alleyne and
Apprendi, even if held not to be retroactive when
seeking collateral relief, are applicable here because §
404(b) is “a new statutory remedy that Congress
expressly made retroactive.” Reply 6, ECF No. 169.
to § 404, a defendant is eligible for reduction if he
was convicted of a “covered offense” before the
effective date of the 2010 FSA and is not otherwise excluded
by the limitations of § 404(c). Jones was convicted of a
covered offense since he was convicted pre-2010 FSA of
“a violation of a Federal criminal statute, the
statutory penalties for which were modified by [the 2010
FSA].” § 404(a). None of the exclusions of §
404(c) apply to him. Under the 2018 FSA, the quantity of
drugs involved in the conviction are not a condition of
eligibility, whether such quantity was charged in the
indictment, found by a jury, ...