United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE
Norwood Wallace Barber, Jr., represented by counsel, filed a
motion to reduce his sentence pursuant to the First Step Act
of 2018, Pub. L. No. 115-015. ECF No. 174. He asks that his
sentence be reduced from 240 months to time served. The
government argues that Barber is not eligible for
consideration of a reduction of his sentence because he
previously received an executive grant of clemency. The
government additionally argues that Barber is ineligible for
consideration because he was sentenced for a violation
involving 1.5 kilograms of cocaine base, which exceeds the
current threshold of 21 U.S.C. § 841(b)(1)(A). For the
reasons set forth below, the court will
GRANT Barber's request to modify his
sentence to time served. The order will be stayed for up to
ten days to allow the Bureau of Prisons time to process
13, 2005, following a jury trial, Barber was found guilty of
one count of conspiring with other persons to distribute more
than 50 grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1). ECF Nos. 1, 38. The government had
previously filed a notice pursuant to 21 U.S.C. § 851
that Barber had at least two prior felony drug convictions.
ECF No. 25.
PSR, it was noted that Barber "was responsible for
significant amounts of both powder and crack cocaine,
justifying the jury's finding that the defendant was
involved with more than 50 grams of cocaine base." ECF
No. 177 at ¶ 14. One codefendant testified that from
October 2, 2002 through June 2003, he supplied Barber with
approximately 200 grams of crack cocaine weekly. There was
additional testimony that on one occasion, Barber purchased
one-quarter of a kilogram of powder cocaine and 4 ounces (113
grams) of cocaine base. 14 at ¶ 12.
combination of a conviction for 50 grams or more of cocaine
base and having two prior felony drug convictions resulted in
a statutory mandatory life sentence for Barber. 21 U.S.C.
§ 841(b)(1)(A) (2002); ECF No. 177 at ¶ 58.
Barber's guidelines range was calculated on 1.5 kilograms
of cocaine base, which gave him a total offense level of 38
with no adjustments. He also was found to be a career
offender under the guidelines, which gave him an offense
level of 38. ECF No. 177 at ¶¶ 18-28, 59.
Based on the offense level of 38 and his criminal history
category of VI, his guidelines range was 360 months to life.
On December 22, 2005, the court sentenced Barber to life in
prison, to be followed by a 10-year period of supervised
release. ECF No. 51.
sought an executive grant of clemency and it was granted by
President Barack Obama on October 6, 2016. Barber's
sentence of life was reduced to 240 months to be followed by
a 10-year term of supervised release. ECF No. 172 at 3.
Barber has served approximately 176 months and his current
projected release date is June 15, 2022. ECF No. 179.
time Barber was sentenced, a violation of § 841(a)(1)
carried a mandatory minimum sentence of 10 years and a
maximum 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) (2002). In 2010,
the Fair Sentencing Act was enacted, 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).
government contends that Barber is ineligible for relief
under the First Step Act because he received the executive
grant of clemency lowering his sentence to 240 months. It
argues that he no longer is serving a sentence whose
penalties were modified by the First Step Act, but is serving
a sentence imposed by the President. However, by the terms of
the grant of clemency, the President did not impose a new
sentence. Rather, the grant of clemency commuted the total
sentence of imprisonment, remitted any unpaid balance of the
$2, 500 fine imposed by the court that remains unpaid upon
Barber's release, and "[left] intact and in effect
the 10-year term of supervised release imposed by the court
with all its conditions and all other components of the
sentence." ECF No. 172 at 3. Thus, the grant of clemency
shortened the sentence, but did not impose a new sentence.
government cites a concurring opinion in United States v.
Surratt. 855 F.3d 218, 219 (4th Cir. 2017) (en banc),
where the Fourth Circuit Court of Appeals dismissed as moot a
habeas corpus challenge to a mandatory life sentence for a
cocaine base conviction, following a presidential term
commutation. Other district courts looking at
Surratt in the context of the First Step Act have
found that it is distinguishable. In United States v.
Stallworth. No. 1:08-cr-24, 2019 WL 2912845 (W.D. Va.
July 8, 2019), the court found that Surratt did not
implicate the defendant's eligibility for relief under
the First Step Act, because Surratt addressed the
question of whether commutation of a sentence mooted a
challenge to the unlawfulness of the sentence when the
commutation cured the unlawful defect in the sentence.
Stallworth, 2019 WL 2912845 at *2 (citing United
States v. Dodd. 372 F.Supp.3d 795, 798 (S.D. Iowa 2019).
The court reasoned mat defendants seeking relief under the
First Step Act are not challenging the unlawfulness of their
sentences, but are seeking additional relief under new
statutory authority, hi See also United States v.
Buckery. No. 1:08-cr-30032, 2019 WL 2724340 at *2 (W.D.
Va. July 1, 2019) (same); United States v. Mitchell.
No. 05-00110 (EGS), 2019 WL 2647571 at *6 (D.D.C. June 27,
2019) (finding mootness doctrine did not apply because a case
becomes moot only when it is impossible for a court to grant
relief to the prevailing party, and relief is possible under
the First Step Act); and United States v. Razz. 379
F.Supp.3d 1309, 1316-1317 (S.D. Fla. May 22, 2019) (noting
that every court to have addressed the Surratt
argument in a First Step Act case has rejected it).
court finds persuasive the reasoning in Stallworth
and the other cases cited above. Accordingly, the fact that
Barber's original sentence was commuted by President
Obama does not ...