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United States v. Gordon

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

August 14, 2019

UNITED STATES OF AMERICA
v.
COLIN F. GORDON, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         The 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.

         I.

         Section 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).

         Both 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).[1]

         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).

         II.

         The 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.

         Second Superseding Indictment 1, ECF No. 105.

         The 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.

         On 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.

         According 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 ...


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