United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Diijon Timmons (“Defendant”) has filed a motion
for reduction of sentence pursuant to the First Step Act of
2018. (Dkts. 576, 587). The motion has been fully briefed and
is ripe for review. For the following reasons, the Court will
grant Defendant's motion.
December 8, 2004, Defendant was indicted for (1) conspiracy
to possess with intent to distribute more than 50 grams of
crack cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A) and (2) using and carrying a
firearm during and in relation to a federal drug trafficking
offense in violation of 18 U.S.C. § 924(c). (Dkt. 3).
Defendant pled guilty to these charges on August 8, 2005.
(Dkt. 167). Each of these two counts imposed a mandatory
minimum sentence of 10 years. §§ 841(b)(1)(A),
924(c). On November 11, 2005, this Court sentenced Defendant
to 235 months for Count 1 and 120 months for count 2, to run
consecutively and to be followed by 5 years of supervised
release. (Dkts. 192, 193). This Court later reduced
Defendant's sentence to 298 months under Amendment 706 in
2008, then to 271 months under Amendment 750 in 2011, and
finally to 241 months under Amendment 782 in 2015. (Dkt.
and the United States agree that Defendant's current
release date is August 22, 2022, and that Defendant had
served 171 months of his sentence as of March 26, 2019.
(Dkts. 587, 589). Defendant filed the present motion to
reduce his § 841 sentence from 121 months to 60 months
in light of the First Step Act. (Dkts. 576, 587). Coupled
with Defendant's good time credits, this would entitle
Defendant to immediate release.
eligibility under the First Step Act
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. 115-015, § 404, 132
Stat. 015, 015 (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,
of sentences under the First Step Act are governed by 18
U.S.C. § 3582(c)(1)(B), which states: “The court
may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure.” 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 facts set forth in § 3553(a).” Dillon
v. United States, 560 U.S. 817, 826
parties agree that Defendant's offense of conviction was
a violation of 21 U.S.C. §§ 846 and 841(b)(1)(A),
that the offense was committed before August 3, 2010, and
that the applicable penalties were modified by section 2 of
the Fair Sentencing Act, which “reduced the statutory
penalties for cocaine based 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
sentences under 21 U.S.C. § 841(b)(1)(A). Pub. L. No.
111-220, 124 Stat. 2372 (2010). Specifically, the threshold
requirement to trigger the mandatory minimum sentence of ten
years under 21 U.S.C. § 841(b)(1)(A) was increased from
50 grams to 280 grams. Id.
agreement as to these facts, the Government argues that
Defendant is not eligible for a reduction pursuant to the
First Step Act because the pre-sentencing report
(“PSR”) states that the offense involved a drug
quantity over the revised threshold. (Dkt. 591) (citing
Alleyne v. United States, 570 U.S. 99 (2013);
Apprendi v. New Jersey, 530 U.S. 466 (2000)). This
Court has already rejected this argument. See United
States v. Herbert, No. 5:97-cr-30024, ECF No. 261 at 4
(“[T]he Court will consider the crime of conviction not
the conduct reported in the PSR. In doing so, this Court
joins others in this district finding the holdings of
Apprendi and Alleyne applicable in the
First Step context.”) (internal citations omitted).
relief consistent with the First Step Act, the Court next
“consider[s] whether the authorized reduction is
warranted, either in whole or in part, according to the facts
set forth in § 3553(a).” Dillon, 560 U.S.
Government argues that the Court should exercise its
discretion in denying a reduction to Defendant's sentence
for three reasons: (1) relief should be denied based on the
drug weight reported in the PSR and “the fact that
[Defendant] would remain subject to the higher penalties if
he had been prosecuted after the enactment of the Fair
Sentencing Act”; (2) relief would provide Defendant
with an unfair windfall as compared to defendants sentenced
after the enactment of the Fair Sentencing Act, but before
Alleyne; and (3) because of the violent elements of
Defendant's conviction. (Dkt. 591 at 10). The Court
addressed and rejected the Government's first two
arguments in Herbert, and for the reasons stated
below, the Government's third argument is also
unpersuasive. Herbert, No. 5:97-cr-30024, ECF No.
261 at 4-5 (citing United States v. Stanback, No.
5:02-cr-30020, 2019 WL 1976445, *4 (W.D. Va. May 2, 2019)).
was originally sentenced to 355 months, but during each of
the three subsequent sentence modifications, Defendant's
term of imprisonment was reduced to the lowest end of his
revised sentencing guideline range. (Dkt. 578). Following the
First Step Act, Defendant's revised sentencing guideline
range remains 121 to 151 months for his § 841
conviction, the same as when Defendant was last resentenced
in 2015, but the Court in its discretion may deviate from
this range. The Government argues that “in light of the
violence involved in this offense, ” Defendant's
current sentence should be retained. (Dkt. 591 at 11).
However, the Court does not purport to amend Count 2 of
Defendant's conviction under 18 U.S.C. § 924(c), for
which this Court imposed a 10-year mandatory minimum
sentence. While such conduct by Defendant is relevant under
§ 3553(a),  he has pled guilty to and served
significant time for the violent elements of his conviction.
factors favor the reduction Defendant seeks. Defendant
stopped attending high school after the tenth grade but has
since completed his GED while incarcerated. Letters of
support from his aunt, grandmother, and daughter's
godmother speak of a changed man ready to be a present father
to his two daughters. Finally, the Bureau of Prisons reports
no incidents involving Defendant, at least for the last 6
months. In light of these and other considerations made
relevant under § 3553, the parties' arguments, and
the considerable time Defendant has already served, the Court
determines that a reduction of Defendant's sentence to
time served is appropriate. Defendant's ...