United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, JUDGE
Wakeel Abdul Sabur filed a Motion for Sentence Reduction
Pursuant to 18 U.S.C. § 3582(c)(2) and the First Step
Act of 2018. (Dkt. 48). On March 8, 2000, Defendant pled
guilty to one count of mailing a threatening communication in
violation of 18 U.S.C. § 876 and was subsequently
sentenced to a term of 46 months imprisonment, consecutive to
any previous sentences, which was at the high end of the
sentencing guideline range. The guideline range was
calculated, in part, on a career offender enhancement under
U.S.S.G. § 4B1.1 based on crimes of violence. (Dkt. 19
at 26, 28 (Sentencing Transcript), dkt. 45 at 4-5
(Presentence Report), dkt. 49 at 1, 3 (Addendum to
argues that he is no longer a career offender, citing
Mathis v. United States, 136 S.Ct. 2243 (2016),
should be resentenced without the related enhancement, and,
noting that the First Step Act is new, suggests that this
“court may find several applications of the Act to
grant relief to the Petitioner.” (Id. at 6).
The Government moves to dismiss the Motion, arguing that the
First Step Act does not authorize consideration of a
reduction in this case because the Defendant pled guilty to
one count of mailing a threatening communication and,
therefore, is not eligible for consideration of a reduction
under the plain terms of the Act. The Government concludes
that nothing in the First Step Act provides an avenue for
Defendant to attack his conviction in light of
Mathis or any other changes in the law since his
sentencing. (Dkt. 50). In his reply, Defendant asserts that
his § 3582(c)(2) motion should be considered because he
was sentenced as a career offender and although
Mathis has not been deemed retroactive on collateral
review, the First Step Act is to apply the Fair Sentencing
Act of 2010 retroactively, even for Defendants designated as
career offenders. (Dkt. 51 at 1-2).
Government is correct that Section 404 of the First Step Act
does not apply to Defendant. (See Dkt. 50 at 1-2).
Section 404 permits courts 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 a
“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 . . . that was committed before
August 3, 2010.” Id. § 404(a). Section 2
of the Fair Sentencing Act changed the threshold levels of
cocaine base (crack cocaine) for sentences under 21 U.S.C.
§ 841(b)(1)(A) and (B), and under provisions of the
Controlled Substances Import and Export Act (21 U.S.C. §
960(b)). Section 3 eliminated mandatory minimum sentences
under 21 U.S.C. § 844(a) for simple possession of a
mixture or substance which contained cocaine base.
offense to be a “covered offense, ” its statutory
penalties must have been “modified by section 2 or 3 of
the Fair Sentencing Act.” Id. § 404(a).
The statutory penalties associated with mailing threatening
communications, 18 U.S.C. § 876, do not fit that
description. See 18 U.S.C. § 876 (as existing
on date of offense). Further, Mathis is not a
retroactive amendment to the Guidelines, so Defendant's
claim may not succeed independently under § 3582(c)(2).
United States v. Duenas-Rodriguez, 706 Fed.Appx. 215
(5th Cir. 2017) (Memorandum) (citing United States v.
Dillon, 560 U.S. 817, 826-27 (2010)); see United
States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016)
(“Motions under § 3582(c)(2) must be based on an
amendment to the Guidelines.”).
is also not eligible for relief under Sections 401-403 of the
First Step Act because, among other reasons, those sections
do not retroactively apply to Defendant, whose conviction was
entered and sentence imposed in 2000, nearly two decades
before enactment of the First Step Act. See Pub. L.
115-391 §§ 401(c), 402(b), 403(b).
Court, therefore will deny Defendant's Motion for
Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2)
and First Step Act of 2018 (Dkt. 48).
Clerk of the Court is directed to send certified copies of
this Memorandum Opinion and accompanying Order to all counsel
of record and to the Defendant.
 According to the Presentence Report,
Defendant was previously sentenced to significant terms of
imprisonment by Virginia courts. (See Dkt. 45 at
11-12). Defendant acknowledges he was sentenced to 52 years
by Virginia courts. (Dkt. 21 at 2; see Dkt. 48 at
 In his reply, Defendant appears to
argue that the First Step Act applies due to an overlap
between Mathis and Johnson v. United States, 135
S.Ct. 2551 (2015). (Dkt. 51). For the reasons stated above,
the First Step Act does not provide this Defendant an avenue
to challenge Defendant's career offender status in light
of his offense of conviction. See also Beckles v. United