United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
Augusta Smith, represented by counsel, filed a motion to
reduce his sentence pursuant to Section 404(b) of the First
Step Act of 2018. ECF No. 114. Smith has discharged, . his
underlying sentence of 120 months and currently is serving a
term of 30 months for violation of the conditions of
supervised release. The government asserts that Smith is
ineligible for consideration of a reduction in his sentence
because he is not currently serving a term for a covered
offense under the First Step Act and also asserts that
granting him relief would serve no reasonable sentencing
objective. For the reasons set forth below, the court
DENIES Smith's request for relief.
February 15, 2006, Smith entered into a plea agreement where
he pled guilty to one count of conspiracy to distribute and
possess with intent to distribute 50 grams or more of cocaine
base as charged in Count 1 of the indictment. ECF Nos. 1, 34.
Pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A),
Smith faced a statutory minimum sentence often years. 21
U.S.C. § 841(b)(1)(A); ECF No. 115 at 16.
the sentencing guidelines, based on the agreed amount of
62.25 grams of cocaine base, Smith had a base offense level
of 32, decreased by 3 levels for a total offense level of 29.
ECF No. 115 at 6. Coupled with a criminal history category of
IV, his guideline range was 121 to 151 months. U.S.S.G. Ch.
5, Part A; ECF No. 115 at 16. On May 10, 2006, Smith was
sentenced to a term of 121 months to be followed by a 5-year
term of supervised release. ECF No. 50 at 2-3. His term of
imprisonment was later reduced to 120 months as a result of
Amendment 706 to the federal Sentencing Guidelines.
7, 2013, Smith completed his federal sentence and was released
to begin his 5-year term of supervised release. On October
13, 2017, an arrest warrant was issued for Smith, following
allegations by Smith's probation officer that he had
failed a drug test and also because he had been arrested on a
drug charge in state court. ECF Nos. 92-93. Following a
hearing on November 5, 2018, Smith was found guilty of
violating the terms of his supervised release; his supervised
release was revoked; and he was sentenced to serve a 30-month
term in the BOP. The court did not impose an additional term
of supervised release. ECF Nos. 108-111, 112. According to
the BOP Inmate Locator Website, Smith's projected release
date is October 3, 2020.
time Smith was sentenced, a violation of § 841(a)(1)
carried a mandatory minimum sentence of 10 years and a
maximum sentence of life imprisonment if the offense involved
more than 50 grams of cocaine base, and a penalty range of 5
to 40 years if the offense involved more than 5 grams of
cocaine base. 21 U.S.C. § 841(b)(1)(A) and (B) (2006).
In 2010, the Fair Sentencing Act was passed, and Section 2 of
the Act reduced 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). Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2, 124 Stat. 2372 (2010). Currently, in order to
trigger the 10-years-to-life-sentencing range, the offense
must involve more than 280 grams of cocaine base, and to
trigger the 5-to-40-year sentencing range, the offense must
involve more than 28 grams of cocaine base.
First Step Act was passed on December 21, 2018. Section 404
of the act permits a court, upon motion of the defendant or
the government, or upon its own motion, to impose a reduced
sentence for certain offenses in accordance with the Fair
Sentencing Act of 2010, if such a reduction was not
previously granted. Offenses qualify for the reduction if
they were committed before August 3, 2010 and carry the
statutory penalties which were modified by section 2 or 3 of
the Fair Sentencing Act of 2010. First Step Act of 2018, Pub.
L. No. 115-015, 132 Stat. 015(2018).
undisputed that Smith committed his offense before August 3,
2010, and his offense carries the statutory penalties which
were modified by Section 2 or 3 of the Fair Sentencing Act.
Smith argues that had he been sentenced when the provisions
of the Fair Sentencing Act were in effect, that his
sentencing range would have been 57 to 71 months, subject to
a 5-year statutory minimum, and because he served almost 92
months on his sentence, the overserved time should be
credited toward the term he currently is serving for
violation of the terms of his supervised release.
government responds that because Smith is serving a sentence
related to violation of the terms of his supervised release
rather than for his underlying drug conviction, he is not
serving time for a covered offense under the First Step Act
and this court lacks jurisdiction to consider his motion. The
government further argues that no reasonable sentencing
objective would be served by reducing his original sentence
to allow him to receive credit against his current revocation
the First Step Act, 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." Pub.
L. No. 115-015, § 404, 132 Stat. 015, 015 (2018). The
government argues that the Fair Sentencing Act applies only
to violations of 21 U.S.C. §§ 841(b)(1)(A),
841(b)(1)(B), and 844 and that it has no bearing on sentences
imposed on supervised release revocations. Because Smith is
serving a sentence related to violation of the terms of his
supervised release, pursuant to 18 U.S.C. § 3583, the
government asserts that he is not serving a sentence for the
underlying drug conviction and thus is not serving a sentence
on a "covered offense."
the inclusion of a term of supervised release following a
sentence is part of the sentence. See 18 U.S.C. §
3583(a) ("The court, in imposing a sentence to a term of
imprisonment for a felony or misdemeanor, may include as a
part of the sentence a requirement that the defendant be
placed on a term of supervised release after imprisonment . .
. .) In addition, the Supreme Court rejected the notion that
revocation of supervised release is punishment for violations
of the conditions of supervised release in Johnson v.
UnitedStates, 529 U.S. 694 (2000) (Johnson
I). Rather, postrevocation sanctions are part of the
penalty for the ...