United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Ferguson, represented by counsel, filed a motion to reduce
his sentence pursuant to Section 404(b) of the First Step Act
of 2018. ECF No. 128. He asks the court to reduce his current
sentence of 120 months to time served. The government asserts
that Ferguson is eligible for consideration of a reduction in
his sentence but that a further reduction of his sentence is
not warranted. For the reasons set forth below, the court
will GRANT Ferguson's request and modify
his sentence to time served, to be followed by a 5-year term
of supervised release.
August 5, 2010, a superseding indictment was filed as to
Ferguson, alleging two counts: that beginning on or about
January 1, 2010 and continuing to on or about March 1, 2010,
he conspired with two other defendants to distribute 50 grams
or more of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A) and all in violation
of 21 U.S.C. § 846 (Count 1), and that on March 1, 2010
he and two other defendants possessed with intent to
distribute fifty grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18
U.S.C. § 2 (Count 2). ECF No. 25. On August 30, 2010,
the government filed an information pursuant to 21'
U.S.C. § 851, giving notice of its intent to rely upon
two previous drug convictions for purposes of enhancing
Ferguson's sentence. ECF No. 52.
September 30, 2010, Ferguson entered into a written plea
agreement where he agreed to plead guilty to Count 1 of the
indictment and the government agreed to dismiss Count 2 at
sentencing. In addition, the government agreed to seek
enhancement of his sentence for only one prior felony drug
offense, rather than two. ECF No. 62 at 3.
to 21 U.S.C. §§ 846 and 841(b)(1)(A)(2009),
Ferguson faced a statutory sentencing range of 20 years to
life. ECF No. 125 at 16. Under the sentencing guidelines,
based on at least 196 but less than 280 grams of cocaine
base, his base offense level was 30. He received a 3-point
decrease for acceptance of responsibility for a total offense
level of 27. ECF No. 125. Coupled with a criminal history
category of VI, his guideline range was 130 to 162 months.
U.S.S.G. Ch. 5, Pt. A.
Ferguson was classified as a career offender because he had
at least two prior felony convictions. ECF No. 125 at 6.
Because the statutory maximum penalty was life, his offense
level was 37, reduced by 3 points for acceptance of
responsibility, for a total offense level of 34. U.S.S.G.
§ 4B1.1; ECF No. 125 at 6. An offense level of 34
together with a criminal history category of VI resulted in a
guidelines range of 262 to 327 months. U.S.S.G. Ch. 5, Pt. A;
ECF No. 125 at 16. The government filed a motion for
substantial assistance asking the court to depart downward
from the otherwise applicable guideline range and mandatory
minimum statutory sentence. ECF No. 79.
January 7, 2011, Ferguson was sentenced to a term of 120
months to be followed by a 5-year term of supervised release.
ECF No. 88. He has served approximately 98 months and his
projected release date is April 28, 2020. ECF No. 127 at 3.
seeks relief under the First Step Act. He argues that he is
eligible for relief and that this court has discretion to
reduce his sentence to time served. The government agrees
that Ferguson is eligible for relief under the First Step
Act, but urges the court to exercise its discretion and
decline to reduce his sentence.
time Ferguson 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).
Ferguson were sentenced after the Fair Sentencing Act, he
would be facing a statutory sentence of 5 to 40 years,
increased because of the § 851 enhancement to
10-years-to-life, and a 5-year term of supervised release. In
other words, he would be facing a 10-year statutory minimum
sentence rather than a 20-year statutory minimum sentence,
before the reduction for substantial assistance.
argues that modification of his sentence is appropriate and
consistent with the aims of the Fair Sentencing Act He urges
the court to take into account his personal difficulties as
set out in the PSR, including the absence of his father, the
fact that his mother was a heroin addict who was "in and
out" of his life, that he lived with his grandparents,
both of whom died before Ferguson was 23, his long history of
drug abuse, his limited ninth-grade education, and his
relatively low IQ. ECF No. 125. In addition, Ferguson points
out that he had a relatively minor role in the offense and