United States District Court, W.D. Virginia, Charlottesville Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge.
defendant has filed motions 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 motions.
2 of the 2010 FSA reduced the 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). 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 50
grams, to trigger the 10-years-to-life penalty range of 21
U.S.C. § 841(b)(1)(A) and 28 grams of cocaine base,
rather than five grams, to trigger the 5-to-40 years penalty
range of 21 U.S.C. § 841(b)(1)(B). 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).
before and after the 2018 FSA, 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).
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).
defendant was initially indicted on March 17, 2004. On August
30, 2004, the defendant pleaded guilty without a plea
agreement to illegal entry to the United States after having
been deported and removed, in violation of 8 U.S.C. §
1326(a), (b)(2) (Count Five of Superseding Indictment). On
September 15, 2004, the defendant was charged in a Second
Superseding Indictment with, among other things, conspiring
to distribute and possess with the intent to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count One), and using or
carrying a firearm in relation to or furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(Count Six). The grand jury included the following Notice of
Special Findings as to Count One:
1. Pursuant to the provisions of Sections 1B1.3(a)(1)(B),
2D1.1(a)(3), and 2D1.1(c)(1), of the United States Sentencing
Guidelines, the Grand Jury further finds that it was
reasonably foreseeable to COLIN F. GORDON, . . . that members
of this jointly undertaken criminal conspiracy conspired to
distribute or to possess with intent to distribute 1.5
kilograms or more of a mixture or substance containing a
detectable amount of cocaine base, or “crack, ” a
Schedule II controlled substance, during the conspiracy.
Superseding Indictment 1, ECF No. 105.
United States also filed an Amended Information to establish
the defendant's prior convictions pursuant to 21 U.S.C.
§ 851, subjecting him to an increased penalty of
mandatory life imprisonment due to two or more prior drug
convictions. Am. Information 1, ECF No. 133.
November 1, 2004, just prior to trial, the defendant pleaded
guilty pursuant to a written Plea Agreement to Counts One and
Six of the Second Superseding Indictment. The defendant
agreed that “for purposes of Guideline Sections 2D1.1
and 1B1.3, ” he would be held accountable for 1.5
kilograms of cocaine base. Plea Agreement 4-5, ECF No. 152.
It was also agreed that only one conviction would apply under
21 U.S.C. § 851, subjecting the defendant as to Count
One of the Second Superseding Indictment to a mandatory
minimum of 20 years imprisonment and a maximum of life, and a
10-year term of supervised release. The defendant also
acknowledged that he was a Career Offender under the
Sentencing Guidelines and agreed that any sentence on Count
One should be no lower than 360 months, with a consecutive
sentence of no less than 60 months on Count Six.
to the recommended scoring in the Presentence Investigation
Report (“PSR”), prepared in advance of
sentencing, the defendant was held accountable for
“well over 1.5 kilograms of cocaine base.” PSR
¶ 16, ECF No. 280. He was determined to have a total
offense level of 42 and a criminal history category of VI,
yielding a guideline range of 360 months to life ...