United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Eric Martin VanBuren (âDefendantâ), through counsel, filed a
motion for reduction of sentence pursuant to the First Step
Act of 2018. (Dkt. 147). The motion has been fully briefed
and is ripe for review. For the following reasons, the Court
will grant Defendant's motion to the extent of a
reduction to 264 months of imprisonment, but not less than
time served, to be followed by 8 years of supervised release.
was indicted for conspiracy to possess with intent to
distribute and to distribute more than 50 grams of cocaine
base in violation of 21 U.S.C. §§ 846 and
841(a)(1). (Dkt. 147-1 (Exhibit - Indictment (Dkt. 3))). On
July 8, 2002, shortly before trial, the Government filed a 21
U.S.C. § 851 Notice of Enhanced Punishment. (Dkt. 147-2
(Exhibit - Notice (Dkt. 37))). On July 11, 2002, a jury found
Defendant guilty of the conspiracy. (Dkt. 42).
to the Presentence Report, Defendant's attributable drug
weight was 205 kilograms of cocaine base and his Total
Offense Level was 44. (Dkt. 148 at 6). Defendant objected to
this calculation at his sentencing. (Dkt. 147-3 at 5-8). The
Presentence Report also set out a Criminal History Category
of III. (Dkt. 148 at 9). The Court adopted the Presentence
Report, finding a Total Offense Level of 44 and a Criminal
History Category of III. (Dkt. 147-3 at 10, 14, 17). Pursuant
to the then mandatory guidelines for Defendant's level
and category, he was sentenced to life imprisonment followed
by 10 years of supervised release. (Dkt. 147-3 (Sentencing
Transcript)). The Fourth Circuit affirmed on appeal.
United States v. VanBuren 190 Fed.Appx. 257 (4th
Cir. 2006) (unpublished) (per curiam). Defendant filed the
instant motion pursuant to the First Step Act. (Dkt. 147).
404 of the First Step Act of 2018 permits “[a] court
that imposed a sentence for a covered offense” to
“impose a reduced sentence as if sections 2 and 3 of
the Fair Sentencing Act of 2010 (Public Law 111-220; 124
Stat. 2372) were in effect at the time the covered offense
was committed.” Pub. L. No. 115-391, § 404(b), 132
Stat. 5194 (2018). A “covered offense” is defined
as “a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010 (Public Law 111-220; 124
Stat. 2372), that was committed before August 3, 2010.”
Id. § 404(a). Nothing in § 404 shall be
construed to require a court to reduce any sentence pursuant
to the section. Id. § 404(a).
Fair Sentencing Act “reduced the statutory penalties
for cocaine base offenses” in order to “alleviate
the severe sentencing disparity between crack and powder
cocaine.” United States v. Peters, 843 F.3d
572, 575 (4th Cir. 2016). As relevant in this case, section 2
of the Fair Sentencing Act increased the drug quantities
necessary to trigger mandatory minimum and maximum penalties
under 21 U.S.C. § 841(b)(1)(A) & (b)(1)(B). Pub. L.
No. 111-220. Relevant here, the cocaine base threshold
required to trigger the application of 21 U.S.C. §
841(b)(1)(A) was increased from 50 grams to 280 grams and,
for § 841(b)(1)(B), from 5 grams to 28 grams.
of sentences under the First Step Act are governed by 18
U.S.C. § 3582(c)(1)(B), which states: “[T]he court
may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute . . . .” In
determining if modification is appropriate, the Court will
first address whether a reduction is consistent with the
First Step Act, and will then “consider whether the
authorized reduction is warranted, either in whole or in
part, according to the factors set forth in §
3553(a).” See Dillon v. United States, 560
U.S. 817, 826 (2010).
Court first determines whether a defendant is eligible for
consideration under the First Step Act. Defendant was
convicted of conspiracy involving a cocaine base-related
offense in violation of 21 U.S.C. §§ 846 and
841(a)(1), with sentencing under § 841(b)(1)(A). The
offense was committed before August 3, 2010. The Government
argues, however, that § 841(b)(1)(A) continues to
provide the appropriate statutory minimum and maximum
penalties for Defendant because the drug weight findings at
sentencing establish that the offense involved an amount
above the Fair Sentencing Act threshold of 280 grams of
cocaine base. Thus, the Government concludes, Defendant is
not eligible for a reduction pursuant to the First Step Act.
(Dkt. 155 at 1, 7-8). Defendant responds that the drug weight
is an element of the offense and that any fact that increases
a mandatory minimum penalty (or maximum penalty) must be
charged in an indictment and proved to a jury beyond a
reasonable doubt pursuant to the U.S. Supreme Court holdings
in Apprendi and Alleyne. (Dkt. 156 at 2).
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
the Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” In Alleyne v. United States, 570 U.S.
99, 108 (2013), the Court expounded upon that rule, holding
that “[f]acts that increase the mandatory minimum
sentence are therefore elements [of the offense] and must be
submitted to the jury and found beyond a reasonable
doubt.” Here, the jury found Defendant guilty of the
sole count in the Indictment, a count which accused Defendant
of conspiring to possess with intent to distribute and to
distribute a mixture or substance containing cocaine base,
which weighed more than fifty grams. (See Dkt. 147-1
at 1 (Indictment)). The Indictment does not charge 280 grams
or more of cocaine base, the Fair Sentencing Act threshold
for application of 21 U.S.C. § 841(b)(1)(A).
Government contends that the Apprendi/Alleyne
doctrine does not apply in the First Step Act context because
neither case is retroactively applicable on collateral
review. (Dkt. 155 at 8 (citing, inter alia,
United States v. Sanders, 247 F.3d 139, 150-51 (4th
Cir. 2001))). Under the First Step Act, however, defendants
are directly eligible for relief under the Act where they
were convicted of a “covered offense” as defined
by Section 404(a) of the First Step Act. Pub. L. No. 115-391,
§ 404(a). “The term ‘covered offense'
means a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010.” Id.
Accordingly, the Court will consider the crime of conviction,
not the conduct reported in the Presentence Report, in
determining whether Defendant is eligible for a sentence
reduction under the First Step Act. In doing so, this Court
joins others in this district finding the holdings of
Apprendi and Alleyne applicable in the
First Step context with respect to whether the statutory
penalties have been modified. See, e.g., United States v.
Ancrum, No. 5:02-cr-30020, 2019 WL 2110589 (W.D. Va. May
14, 2019) (J. Urbanski) (“although Apprendi
and Alleyne are not retroactively applicable on
collateral review, this court joins other courts in finding
that their holdings are applicable in the context of the
First Step Act”) (collecting cases).
Court originally imposed a sentence under 21 U.S.C. §
841(b)(1)(A) because the jury's verdict, in light of the
Indictment, met the then-threshold amount of cocaine base set
out in that subsection. Because the Indictment, and thereby
the related jury verdict, specified more than 50 grams of
cocaine rather than more than 280 grams, subsection
841(b)(1)(B), as modified by the Fair Sentencing Act, applies
to Defendant under the First Step Act rather than subsection
841(b)(1)(A). Under subsection 841(b)(1)(B), a defendant is
subject to a statutory minimum sentence of five years and
maximum sentence of 40 years. With the application of one 21
U.S.C. § 851 enhancement, the new statutory minimum for
the Defendant is ten years while the statutory maximum is
life and the period of supervised release is at least eight
years. 21 U.S.C. § 841(b)(1)(B). The
statutory minimum at sentencing, with one § 851
enhancement, was 20 years. (See Dkt. 148 ¶ 54,
Dkt. 149 at 4; see also Dkt. 147 at 4). The Court,
therefore, finds Defendant is eligible for consideration of a
sentence reduction under the First Step Act.
relief consistent with the First Step Act in this case, the
Court next “consider[s] whether the authorized
reduction is warranted, either in whole or in part, according
to the factors set forth in § 3553(a).” See
Dillon, 560 U.S. at 826. In considering the factors
under 18 U.S.C. § 3553(a), the parties disagree as to
Defendant's applicable amended Guidelines range under the
First Step Act compared to the original Guidelines range.
Defendant compared the sentence he received in 2002 with the
sentence he would “likely receive today.”
Defendant began with a Base Offense Level of 24 (compared to
38 in the original Presentence Report) using “at least
50 grams of cocaine base” as the drug quantity,
increased to an Adjusted Offense Level of 30 in light of
Defendant's role in the offense, his obstruction of
justice, and the presence of a dangerous weapon. With a
Criminal History Category of III and an Offense Level of 30,
Defendant asserts the Court should consider the corresponding
Guidelines range of 121-151 months. (Dkt. 147 at 3-4).
Government, however, calculates the Base Offense Level as 38
by using the 205 kilograms in the original Presentence
Report, which was adopted by the Court as part of the
original sentencing. Although the threshold for a base level
of 38 has increased from 1.5 kilograms in 2002 to 25.2
kilograms today, both amounts are less than 205 kilograms.
The resulting Adjusted Offense Level would be 44 and the
corresponding Guidelines range would be life. (Dkt. 155 at
11). The Government argues that because the Guidelines range,
as calculated by the Government, remains life, no reduction
is warranted. (Id.).
difference between the proffered Guidelines ranges resides in
the calculation of the Base Offense Level under U.S.S.G.
§ 2D1.1. Defendant uses the range applicable to more
than 50 grams of cocaine base, which corresponds to a Base
Offense Level of 24 (at least 28 grams but less than 112
grams), while the Government uses the 205 kilograms of
cocaine base in the Presentence Report adopted by the Court,
which corresponds to a Base Offense Level of 38. Although
Apprendi and Alleyne preclude consideration
of the Court's determination of the amount of cocaine
base in determining whether a defendant is eligible for a
sentence reduction under the First Step Act and in
recalculating a defendant's statutory minimum and maximum
penalties, the holdings do not apply to a court's
determination of a Guidelines range within the statutory
penalty range. United States v. Benn, 572 Fed.Appx.
167, 180 (4th Cir. 2014) (unpublished)
(“Alleyne has no application to
Appellants' sentences in this case. The district
court's drug quantity determinations at sentencing did
not increase Appellants' statutory mandatory minimum
sentences, but rather, were used to determine their advisory
Guidelines ranges . . . .”) (collecting cases);
United States v. Orozco, 716 Fed.Appx. 390, 400 (6th
Cir. 2017) (“It is settled law that judge-found ...