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United States v. Fulton

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

October 7, 2019


          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Lisa M. Lorish, Assistant Federal Public Defender, Charlottesville, Virginia, for Defendant.


          James P. Jones United States District Judge.

         The defendant, Richard Leroy Fulton, a federal inmate sentenced by this court, has filed a motion 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, but decline to reduce his sentence.


         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 (“BOP”), 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).

         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).


         The defendant was indicted with a coconspirator on November 13, 2001, and charged with three counts: (1) conspiring to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; (2) possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and (3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

         On October 25, 2002, the defendant pled guilty to Counts One and Three, pursuant to a written Plea Agreement. Fulton agreed that he “shall be held responsible for conspiring to distribute and distributing more than 1.5KG of cocaine base.” Reply Supp. Mot. Reduce Sentence Ex. 1, Plea Agreement § 3, ECF 108-1. In turn, the government agreed to recommend a sentence at the low end of the guideline range. According to the Presentence Investigation Report (“PSR”), the defendant was found accountable for “well over 25 kilos of cocaine base.” PSR ¶ 8, ECF No. 117. However, the drug amount that triggered the highest level on the drug table was 1.5 kilograms, as stipulated to in the Plea Agreement. Accordingly, he was determined to have a total offense level of 41, after enhancements of two levels for possession of a firearm and four levels for the defendant's role in the offense but with a three-level reduction for acceptance of responsibility. The defendant had a criminal history category of V, yielding a guideline range of 360 months to life.

         On May 16, 2003, the defendant was sentenced under the then-mandatory guidelines to 360 months imprisonment on Count One, along with a concurrent sentence of 120 months on Court Three, to be followed by five years of supervised release.

         The defendant's later motions under 18 U.S.C. § 3582(c)(2), based on amendments 706, 750, and 782 to the Sentencing Guidelines, were each denied because his guideline range was not affected by the reductions in the drug offense table. ECF Nos. 74, 81, and 109. The Fourth Circuit affirmed the court's decision as to amendment 750, finding that the judgment “specifically found him responsible for over twenty-five kilograms of crack cocaine.” United States v. Fulton, 533 Fed.Appx. 190, 190 (4th Cir. 2013) (unpublished). The BOP calculates his current projected release date to be April 13, 2029. The Probation Office of this court estimates that he has served approximately 214 months.


         The United States argues that the defendant is ineligible for a reduction in sentence in light of the drug weight attributed to him at sentencing. The United States contends that because the offense involved at least 1.5 kilograms and the PSR established over 25 kilograms of cocaine base, it involved a drug quantity over the revised threshold of 280 grams established in the 2010 FSA. The government therefore argues that the defendant was properly sentenced to 360 months for Count One, which is within the post-2010 FSA statutory range under § 841(b)(1)(A).

         The United States maintains that the court may rely on the drug weight found in the PSR despite the principles announced in Alleyne v. United States, 570 U.S. 99 (2013), and Appendi v. New Jersey, 530 U.S. 466 (2000), because it has been held that these principles are not applicable retroactively on collateral review. Alternatively, the United States reasons that even if the defendant is eligible for a reduction, the court should not exercise its discretion to do so. The defendant contends that he is ...

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