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United States v. Jones

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

August 9, 2019

UNITED STATES OF AMERICA
v.
GORDON RAY JONES

          MEMORANDUM OPINION

          Elizabeth K. Dillon, United States District Judge.

         Pending before the court is Gordon Ray Jones's motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018, filed by and through counsel. (Dkt. No. 421.) The motion is fairly brief and asks the court to reduce his sentence from 172 months to 100 months. He contends that his guideline range under the First Step Act has changed because, although he was designated a career offender when he was sentenced in 2008, that designation is no longer appropriate in light of intervening law. Specifically, he posits that the two offenses that the sentencing court relied upon to designate him a career offender no longer qualify as career offender predicates after United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Without the career offender designation, he calculates his guideline range as 151 to 188 months, and requests a variance below the guideline range proportional to the one he received at sentencing.

         The United States has filed a response in which it contends that Jones is not eligible to be considered for a reduction in sentence under the First Step Act. (Dkt. No. 429.) In particular, it contends that, in selecting the proper subsection of 21 U.S.C. § 841(b) applicable to his offense, the court should use the higher drug amounts for which the sentencing court held Jones responsible, rather than the amounts charged in the indictment. If the court were to do so, the argument continues, then Jones's statutory penalties have not changed and he is not eligible for relief. Even if he were eligible, moreover, the United States urges the court to exercise its discretion to deny relief. In support, the United States notes the significant drug weight involved in the offense and further notes that Jones's guideline range remains unchanged. (Id.)

         Neither party has requested a hearing, and Jones specifically states that he “does not seek a resentencing hearing.” (Mot. Reduce Sent. 3.) For the reasons discussed below, the court will deny in part and grant in part the defendant's motion to reduce sentence.

         I. BACKGROUND

         Jones and a number of co-defendants were charged in a multi-count indictment. (Dkt. No. 3.) Jones ultimately pled guilty only to Count One, which charged him with conspiracy to distribute and to possess with intent to distribute a mixture or substance containing more than fifty (50) grams of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). As part of the plea agreement, the government agreed to dismiss the remaining charges against him. At the time, the statutory penalties for an offense involving 50 grams or more of cocaine base were set forth in § 841(b)(1)(A). Because Jones was subject to an enhancement under 21 U.S.C. § 851 (Dkt. No. 114), the offense carried a mandatory minimum sentence of twenty years and a maximum sentence of life. (Presentence Investigation Report (PSR) ¶¶ 3, 84, Dkt. No. 422.)[1] The § 851 notice also triggered a ten-year mandatory minimum term of supervised release. (Id. ¶ 87.)

         At sentencing, the court determined that Jones should be held responsible for 4.5 kilograms of cocaine base, resulting in a base offense level of 38. The court determined that he was entitled to a three-level reduction for acceptance of responsibility. Accordingly, his total offense level was 35. Based on two prior offenses, he was a career offender. But the career offender guideline also resulted in the same total offense level, 35. (PSR ¶¶ 29-39.)

         He had a total criminal history score of 19, placing him in criminal history category VI, even before application of the career offender guideline. (Id. ¶¶ 56-57.) His resulting guideline range was 292 to 365 months. (Id. ¶ 85.) The court imposed a below-guideline sentence of 192 months, to be followed by a ten-year term of supervised release. (Dkt. No. 177.)

         Jones did not appeal, but he filed a motion pursuant to 28 U.S.C. § 2255, which was denied. He also filed several motions to reduce his sentence. One of these was granted. Specifically, on October 18, 2011, the court reduced his sentence pursuant to U.S. Sentencing Guideline Amendment 750. In doing so, the court applied the career offender guideline, which was required because that guideline resulted in a higher total offense level than using the drug weight guidelines. See U.S.S.G. § 4B1.1. Thus, his resulting guideline range was 262 to 327 months. The court imposed a proportionally below-guideline sentence of 172 months. (Addendum to PSR 2, Dkt. No. 424; Dkt. Nos. 264, 265.)

         II. DISCUSSION

         A. First Step Act

         As noted, Jones seeks relief under Section 404 of the First Step Act of 2018. 115 Pub. L. 391, § 404, 132 Stat. 5194 (enacted Dec. 21, 2018); see also 18 U.S.C. § 3582(c)(1)(B) (authorizing courts to modify a previously imposed sentence “to the extent otherwise expressly permitted by statute”). Section 404 allows-but does not require-district courts to reduce the sentence of certain defendants sentenced prior to August 3, 2010, the effective date of the Fair Sentencing Act of 2010. To be eligible, the defendant's offense must have been committed before August 3, 2010, and the statutory penalties applicable to the offense must have been modified by section 2 or 3 of the Fair Sentencing Act. First Step Act § 404(a).[2] Those sections of the Fair Sentencing Act “reduced the statutory penalties for cocaine base 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). If the court concludes that an offender is eligible, then the court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the [defendant's] offense was committed.” First Step Act § 404(b).

         B. Jones Is Eligible for Relief Under the First Step Act.

         The parties' first disagreement concerns whether Jones meets the criteria to be eligible to be considered for a reduction under Section 404. It is undisputed that his offense was committed before August 3, 2010. Jones asserts that he also meets the second requirement, because the statutory penalties applicable to his offense were modified by section 2 of the Fair Sentencing Act, which increased the quantity of cocaine base required to trigger the statutory penalties set forth in 21 U.S.C. § 841(b)(1)(A) from 50 grams to 280 grams. The United States Probation Office agrees. (See Addendum to PSR 1, 3.)

         Specifically, Jones was charged with 50 grams or more of cocaine base, but less than 280 grams. Thus, applying the Fair Sentencing Act to his case and using the amount charged in the indictment means he would no longer be subject to the statutory penalties of § 841(b)(1)(A), but would instead be subject to the penalties set forth in § 841(b)(1)(B). Under that provision, and with the § 851 notice, Jones's revised ...


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