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United States v. King

United States District Court, W.D. Virginia, Abingdon Division

August 8, 2019


          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.



         The 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.


         Section 2 of the 2010 FSA reduced the penalties for offenses involving cocaine base by increasing certain 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 at least 50 grams, to trigger the 10-years-to-life penalty range of 21 U.S.C. § 841(b)(1)(A) and at least 28 grams of cocaine base, rather than at least five grams, to trigger the 5-to-40 years penalty range of 21 U.S.C. § 841(b)(1)(B). For cocaine base of less than 28 grams, the statutory penalty of not more than 20 years, 21 U.S.C. § 841(b)(1)(C), was not changed.

         If the government gives appropriate notice prior to sentencing pursuant to 21 U.S.C. § 851, and the defendant is found to have been previously convicted of one or more certain types of drug crimes, the minimum and maximum terms of imprisonment and minimum terms of supervised release are increased. 21 U.S.C. § 841(b)(1)(A), (B), (C). The 2018 FSA did not change the increase under § 841(b)(1)(B) for at least 28 grams of cocaine base of 10-years-to-life and a minimum of eight years supervised release or the increase under § 841(b)(1)(C) for less than five grams of cocaine base of 30 years maximum imprisonment and six years supervised release.

         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).

         While a 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).


         The 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), and 846. The United States filed an Information to establish the defendant's prior drug convictions pursuant to 21 U.S.C. § 851.

         After a four-day trial, the jury found the defendant guilty, and in addition found that there should be attributed to him at least five but less than 50 grams of cocaine base. Verdict, ECF No. 104. Nevertheless, according to the Presentence Investigation Report (“PSR”) prepared by a probation officer in preparation for sentencing, the defendant was accountable for 419.8 grams of cocaine base. He was also determined to be a career offender, and his guideline range was enhanced in accordance with U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1, based on prior North Carolina drug convictions. The PSR recommended a total offense level of 37 and a criminal history category of VI, yielding an advisory guideline range of 360 months to life imprisonment.

         A sentencing hearing was held on October 19, 2009. I adopted the scoring recommendation of the PSR that King was a career offender and for that reason deemed it unnecessary to determine the defendant's objection as to the quantity of drugs attributed to him by the PSR. Sent. Hr'g Tr. 33, ECF No. 221. In sentencing King, I varied below the advisory guideline range to 180 months incarceration, on the grounds that King had a relatively minor role in the conspiracy and that the convictions used to support his career offender status had occurred a lengthy time in the past. Id. at 39-40. I also imposed a term of eight years of supervision after his release. King and a coconspirator appealed, but the Fourth Circuit affirmed King's conviction and sentence. United States v. Morton, 443 Fed.Appx. 775, 780 (4th Cir. 2011) (unpublished).[1]

         King then filed a § 2255 motion, arguing, among other things, that defense counsel had provided ineffective assistance by failing to file a petition for rehearing en banc to the Fourth Circuit or a writ of certiorari with the Supreme Court. I concluded that King had established that his counsel had failed to continue to appeal after King requested that he do so. Op. 46, ECF No. 232. However, because King had no constitutional right to counsel in pursuing certiorari review, I denied his § 2255 motion. Order ¶ 2, ECF No. 233. Nonetheless, because King was denied an opportunity to petition for a writ of certiorari, I noted that he “may choose to seek relief in the court of appeals in the form of a petition to recall the court's mandate and reenter its judgment in order to allow him a delayed petition for certiorari.” Id. at ¶ 1. King appealed the denial of the § 2255 motion, but the Fourth Circuit affirmed. United States v. King, 585 Fed.Appx. 170 (4th Cir. 2014) (unpublished). King also filed a motion to recall the mandate, which the Fourth Circuit granted. Order, No. 09-5004 (4th Cir. Nov. 13, 2014). Another attorney was appointed counsel for the reinstated direct appeal. He filed on King's behalf a petition for rehearing en banc, which was denied, Order, No. 14-6838 (4th Cir. Jan. 20, 2015), and sought certiorari from the Supreme Court, which was also denied, King v. United States, 135 S.Ct. 2817 (2015).

         King thereafter filed another motion under § 2255, alleging, among other things, that he had been erroneously sentenced as a career offender based upon the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). I held that this claim had been defaulted. United States v. King, No. 1:08CR00041, 2017 WL 4253753, at *3 (W.D. Va. Sept. 26, ...

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