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United States v. Elliott

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

October 16, 2019

UNITED STATES OF AMERICA
v.
MARK ANTHONY ELLIOTT, Defendant

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge.

         Mark Anthony Elliott, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018 ("the Act"). ECF No. 80. In 2011 Elliott discharged his underlying sentence of 120 months and began serving a term of supervised release. He was arrested on additional charges and sentenced to a term of 135 months, which he currently is serving. He also must serve a consecutive 33-month term for violation of the conditions of supervised release on the instant case. Elliot seeks a reduction of his original 120-month sentence under the Act. The government asserts that Elliot is ineligible for consideration of a reduction in his sentence because he is not currently serving a term for a covered offense under the First Step Act and also asserts that granting him relief would serve no reasonable sentencing objective. For the reasons set forth below, the court DENIES Elliott's request for relief.

         BACKGROUND

         On September 23, 2002, Elliott entered into a plea agreement where he pled guilty to possession with intent to distribute 5 grams or more of cocaine base, cocaine powder, methamphetamine, marijuana, MDMA, and amphetamines in violation of 21 U.S.C. § 841(a)(1) (Count 1) and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 2). A third count was dismissed. ECF No. 81. Pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(B), Elliott faced a statutory minimum sentence of five years on each count, with the sentence on Count 2 to be imposed consecutively to Count 1. No. 81.

         Under the sentencing guidelines, based on the amount of drugs found, Elliott had a base offense level of 26, decreased by 3 levels for acceptance of responsibility, for a total offense level of 23. ECF No. 81. Coupled with a criminal history category of II, his guideline range on Count 1 was 51 to 63 months. U.S.S.G. Ch. 5, Part A; ECF No. 81. On Count 2, the statutory minimum sentence was 60 months to run consecutively to the sentence imposed in Count 1. ECF No. 81. On December 20, 2002 Elliott was sentenced to 63 months on Count 1 and a consecutive 60-month sentence on Count 2, to be followed by a 4-year term of supervised release. ECF No. 15 and minutes from December 20, 2002. His term of imprisonment later was reduced to 120 months as a result of Amendment 706 to the federal Sentencing Guidelines. ECF No. 26.

         On June 9, 2011, Elliott completed his federal sentence and was released to begin his 4-year term of supervised release. On November 7, 2011, a petition for warrant or summons was issued for Elliott, following his arrest by Virginia State Police for reckless driving by speeding, felony possession of a firearm by a convicted felon, and possession of a concealed weapon by a felon. ECF No. 33. On February 7, 2012, Elliot's term of supervised release was revoked and he was sentenced to a term of time served, home confinement for six months, and an additional term of supervised release. ECF No. 51. On July 18, 2014, an arrest warrant was issued for Elliott for violation of the terms of supervised release after he was arrested by the RUSH task force for conspiring to distribute methamphetamine, possession with intent to distribute methamphetamine, and possession of marijuana. ECF No. 52.

         On March 12, 2015 he was indicted on one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine in United States v. Elliot, No. 5-.15-CR-08 (W.D. Va. 2016). He pled guilty and on February 25, 2016 he was sentenced to 135 months to run consecutively with the sentence imposed in the instant case, to be followed by a 5-year term of supervised release. ECF No. 133 in 5:15-CR-08. On the same day, he was sentenced to a term of 33 months on the revocation of supervised release in the instant case to be served consecutively to the sentenced imposed in 5:15-CR-08. ECF No. 78 in No. 5:02-CR-30031. He was to receive credit for time served beginning on July 17, 2014. ECF No. 133 in 5:15-CR-08 and ECF No. 78 in 5:02-CR-30031. No. additional term of supervised release was imposed in the instant case. Elliot's current projected release date is November 2, 2026.

         I.

         At the time Elliott was sentenced, a violation of § 841(a)(1) carried a mandatory minimum sentence of 10 years and a maximum sentence of life imprisonment if the offense involved more than 50 grams of cocaine base, and a penalty range of 5 to 40 years if the offense involved more than 5 grams of cocaine base. 21 U.S.C. § 841(b)(1)(A) and (B) (2006). In 2010, the Fair Sentencing Act was passed, and Section 2 of the Act reduced 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). Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010). Currently, in order to trigger the 10-years-to-life-sentencing range, the offense must involve more than 280 grams of cocaine base, and to trigger the 5-to-40-year sentencing range, the offense must involve more than 28 grams of cocaine base.

         The First Step Act was passed on December 21, 2018. Section 404 of the act permits a court, upon motion of the defendant or the government, or upon its own motion, to impose a reduced sentence for certain offenses in accordance with the Fair Sentencing Act of 2010, if such a reduction was not previously granted. Offenses qualify for the reduction if they were committed before August 3, 2010 and carry the statutory penalties which were modified by section 2 or 3 of the Fair Sentencing Act of 2010. First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 (2018).

         It is undisputed that Elliott committed his offense before August 3, 2010, and his offense carries the statutory penalties which were modified by Section 2 or 3 of the Fair Sentencing Act. Elliott argues that had he been sentenced when the provisions of the Fair Sentencing Act were in effect, he would not have been subject to a mandatory minimum sentence and his drug weight of 362.98 kilograms of marijuana would have established a base offense level of 24, placing him in a guideline range of 41-51 months, given his three-level reduction for acceptance of responsibility and his criminal history level of II. Because he served 60 months on Count 1, they argue that he overserved his sentence by 9 months, and that the overserved time should be applied to the 33 months of his revocation sentence.

         The government responds that because Elliott is serving a sentence related to violation of the terms of his supervised release rather than for his underlying drug conviction, he is not serving time for a covered offense under the First Step Act and this court lacks jurisdiction to consider his motion. The government further argues that no reasonable sentencing objective would be served by reducing his original sentence to allow him to receive credit against his current revocation sentence.

         II.

         Under the First Step Act, a covered offense is defined as "a violation of a Federal criminal statute, the statutory penalties for 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." Pub. L. No. 115-015, § 404, 132 Stat. 015, 015 (2018). The government argues that the Fair Sentencing Act applies only to violations of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), and 844 and that it has no bearing on sentences imposed on supervised release revocations. Because Elliott is serving a sentence related to violation of the terms of his supervised release, pursuant to 18 U.S.C. ...


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