United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge.
Robert Lee Bennett, through counsel, has filed a motion for
reduction of sentence pursuant to the First Step Act of 2018.
The motion has been briefed and is ripe for review. For the
following reasons, the court will grant the defendant's
August 13, 2009, a grand jury in the Western District of
Virginia returned an indictment against the defendant. Count
One of the indictment charged the defendant with conspiracy
to distribute more than fifty grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
and 846. The defendant entered a plea of guilty to that count
on December 9, 2009. Based on the amount of cocaine base
charged in the indictment, the defendant faced a mandatory
term of imprisonment often years to life under existing law.
See 21 U.S.C. § 841(b)(1)(A) (2006). As part of the
written plea agreement, the parties agreed to jointly
recommend that the defendant be sentenced to a term of
imprisonment of 180 months, with the understanding that the
court would not be bound by the parties' recommendation.
defendant appeared for sentencing on April 29, 2010. At the
time of sentencing, the defendant was held responsible for
96.25 grams of cocaine base, which gave rise to a base
offense level of 30 under § 2D 1.1 of the United States
Sentencing Guidelines ("U.S.S.G."). See U.S.S.G.
§ 2D1.1(c) (2009). In addition to a two-level firearm
enhancement under § 2D1.1(b)(1), the defendant received
a six-level enhancement under § 3A1.2(c)(1) because the
offense involved an assault on a law enforcement officer
during the course of attempting to avoid arrest. The
defendant was also designated as a career offender. That
designation, coupled with the "offense statutory
maximum," resulted in a base offense level of 37 under
U.S.S.G. § 4B 1.1(b). Because the defendant's
offense level under § 2D 1.1 was higher than the
applicable offense level under § 4B1.1, the court
applied § 2D 1.1 in sentencing the defendant. With a
three-level reduction for acceptance of responsibility and a
criminal history category of VI, the defendant's
guideline range was 292 to 365 months' imprisonment.
After considering the parties' arguments, the court
agreed that a downward departure was warranted in the
defendant's case, but declined to impose the 180-month
term of imprisonment jointly recommended by the parties.
Instead, the court found that a term of imprisonment of 210
months was appropriate under the facts of the case. The court
also imposed the mandatory minimum term of supervised release
of five years. See 21 U.S.C. § 841(b)(1)(A) (2006).
September of 2011, the government moved to reduce the
defendant's sentence for substantial assistance, pursuant
to Federal Rule of Criminal Procedure 35(b). The court
granted the motion and reduced the defendant's term of
imprisonment to 180 months. On October 4, 2013, the court
further reduced the defendant's term of imprisonment to
162 months to effectuate the court's intent to have his
federal sentence run concurrently with an undischarged state
2014, the defendant filed a motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to
the Sentencing Guidelines, which revised the drug quantity
tables in § 2D 1.1 to conform to the Fair Sentencing Act
of 2010. Since the new adjusted offense level based on the
drug quantity table in § 2D 1.1(c) and the applicable
enhancements (34) was lower than the career offender level
under § 4B1.1 (37), the court used the career offender
level as the starting point for the new sentencing
calculation. On July 22, 2014, the court notified the parties
that it proposed to reduce the defendant's period of
incarceration from 162 months to 143 months, which
represented a comparable reduction from the amended guideline
range. The government subsequently advised the court that it
did not challenge the legality or propriety of the proposed
reduction. On August 11, 2014, the court granted the
defendant's motion and reduced his term of imprisonment
to 143 months.
parties agree that the defendant is now eligible for a
sentence reduction under the newly-enacted First Step Act of
2018. Section 404 of the First Step Act permits the court to
retroactively apply the statutory penalties modified by the
Fair Sentencing Act. See First Step Act of 2018,
Pub. L. No. 115-391, § 404, 132 Stat. 5194 (enacted Dec.
21, 2018); see also 18 U.S.C. § 3582(c)(1)(B)
(authorizing courts to modify a sentence of imprisonment
"to the extent otherwise expressly permitted by
statute"). Section 404 provides that "[a] court
that imposed a sentence for a covered offense may, on motion
of the defendant, . . . 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- 391,
§ 404(b). The Act defines a "covered offense"
as "a violation of a Federal criminal statute, the
statutory penalties of 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, 2010."
Id. § 404(a).
case, it is undisputed that the defendant's offense of
conviction is a "covered offense" for purposes of
the First Step Act. The offense was committed before August
3, 2010, and the applicable statutory penalties were modified
by section 2 of the Fair Sentencing Act, which "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) (citing Fair
Sentencing Act of 2010, § 2, Pub. L. No. 111-220, 124
Stat. 2372, 2373 (codified at 21 U.S.C. § 841(2012))).
As relevant in the instant case, section 2 of the Fair
Sentencing Act increased the amount of cocaine base required
to trigger the statutory penalties set forth in §
841(b)(1)(A) from 50 grams to 280 grams. See Pub. L. No.
111-220, § 2(a)(1), 124 Stat. at 2372; see also
21 U.S.C. § 841(b)(1)(A) (2012). Accordingly, the court
is authorized to "impose a reduced sentence as if
[section 2] were in effect at the time the covered offense
was committed." 115 Pub. L. 391, § 404(b).
the Fair Sentencing Act is retroactively applied in the
defendant's case, the statutory sentencing range for the
defendant's offense is 5 to 40 years' imprisonment
and at least four years of supervised release, based on the
quantity of cocaine base charged in the indictment.
See 21 U.S.C. § 841(b)(1)(B) (2012) (setting
forth the statutory penalties applicable to offenses
involving 28 grams or more of a mixture or substance
containing cocaine base). The guideline range of imprisonment
that now applies in the defendant's case, based on a
statutory maximum sentence of 40 years, is 188 to 235 months.
The court has been advised that the defendant has already
served more than 119 months of his prison sentence. His
projected release date is October 20, 2019.
review of the record, the court concludes that a sentence
reduction is warranted in the defendant's case. Although
the government maintains that the defendant's offense
conduct and criminal history counsel against a reduction, the
same facts and circumstances were in existence at the time of
the defendant's original sentencing. Nonetheless, the
government recommended that the court impose a sentence
substantially below the applicable guideline range. Likewise,
the government did not oppose the defendant's motion for
reduction of sentence based on Amendment 750, or suggest that
a lesser reduction was warranted under the facts of this
case. Consequently, the court does not believe that the
defendant's offense conduct or his criminal history
should preclude him from obtaining the relief authorized by
the First Step Act.
considering the parties' arguments, the defendant's
positive institutional record, and the sentencing factors set
forth in 18 U.S.C. § 3553(a), the court will depart from
the new guideline range and impose a reduced term of
imprisonment of 135 months, but not less than time served.
The court will also reduce the defendant's period of
supervised release to four years. All other terms of the
original sentence will remain the same.
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to the defendant, all counsel of
record, the United States Probation Office, and the United