United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
matter is before Court on the DEFENDANT'S MOTION TO
REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF
No. 254) and having considered the motion, the RESPONSE OF
THE UNITED STATES TO DEFENDANT'S MOTION PURSUANT TO THE
FIRST STEP ACT OF 2018 (ECF No. 257), the DEFENDANT'S
REPLY TO THE GOVERNMENT'S RESPONSE TO DEFENDANT'S
MOTION UNDER THE FIRST STEP ACT (ECF No. 260), the SUR-REPLY
OF THE UNITED STATES TO DEFENDANT'S MOTION PURSUANT TO
THE FIRST STEP ACT (ECF No. 262), as well as the file and the
Presentence Report, the DEFENDANT'S MOTION TO REDUCE
SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 254)
will be denied.
Gilbert was convicted of conspiracy to possess with intent to
distribute cocaine, possess with intent to distribute and
distribute cocaine base, and possess with intent to
distribute and distribute heroin, all in violation of 21
U.S.C. § 846. The Presentence Report was accepted,
adopted and filed as tendered, there being no objections to
it. Gilbert was held accountable for more than 1.5 kilograms
of cocaine base and 1 kilogram of heroin. The Presentence
Report assessed a 2-point enhancement for the presence of
guns (U.S.S.G. § 2D.1(b)(1)) and a 4-point enhancement
for Gilbert's leadership role in the offense (U.S.S.G.
§ 3B1.1(a)). He was given a 3-point reduction for
acceptance of responsibility (U.S.S.G. § 3E1.1). His
criminal history category was VI. As a result, Gilbert's
guidelines calculations were 360 months to life imprisonment.
That is still the guidelines calculation.
threshold question in this case is whether Gilbert is
eligible for relief under Section 404 of the First Step Act.
The United States contends that eligibility for reduction is
to be determined by the amount of controlled substance found
by the Court during the sentencing process where, as here,
the defendant entered a plea of guilty. The defendant takes
the view that eligibility is determined without regard to the
quantity of controlled substance found during the sentencing
process but only by considering the quantity of controlled
substance alleged in the Indictment. Neither view is correct.
reasons set forth in United States v. Mabry, 2019
U.S. Dist. LEXIS 192435, October 31, 2019, and United
States v. Hardnett, ___ F.Supp.3d ___, No. 3:03crl2,
2019 WL 5445888 at *1 (E.D. Va. Oct. 24, 2019), the Court
concludes that Gilbert is eligible for a reduction under the
First Step Act. That is because, before August 3, 2010,
Gilbert violated a federal criminal statute, the statutory
penalties for which were modified by Section 2 or 3 of the
Fair Sentencing Act of 2010.
next question is whether to grant the requested modification
of sentence and that is a matter of discretion which is to be
exercised in accord with all of the facts in the case,
including those set forth in the motion for reduction of
sentence, those in the Presentence Report, or otherwise,
those in the Statement of Facts accompanying the Plea
Agreement, and the record of the case in its entirety. That,
of course, means that, inter alia, the Court can
consider the quantity of controlled substance proved by the
record taken as a whole establishes that Gilbert was a leader
of a substantial conspiracy that distributed extremely large
quantities of crack cocaine and heroin in the Richmond area.
The members of the conspiracy, including Gilbert, employed
several other people in Richmond to distribute drugs and used
seven different houses for that purpose. The organization was
willing to use violence to carry out its operations and
Gilbert supplied firearms for the protection of the drug
trafficking organization. In addition, Gilbert's criminal
history category is VI.
reply brief tendered by Gilbert (ECF No. 260) reflects that
Gilbert has no reported violations of prison rules during the
past 18 years and that he had only three minor violations in
2001. There is evidence that, while working in prison,
Gilbert exhibited a good work ethic and took pride in his
work. The record shows that Gilbert has taken a considerable
number of classes and has attended a number of programs since
he has been incarcerated in 1997. All of those activities
(self-improvement and educational) are laudable and evidence
effort toward rehabilitation on Gilbert's part.
also notes that he is 68 years of age at the present time.
That, he says, means that he is unlikely to commit further
crimes especially considering that the past 22 years of his
life have been spent in federal prison.
considered the entire record in the case, including the
extensive distribution accomplished by the conspiracy of
which Gilbert was one of the leaders; considering that his
criminal history category is VI; considering the mitigating
factors of his conduct while incarcerated outlined above;
and, considering that, as the defendant acknowledges, the
sentencing guidelines for the offenses of conviction would be
the same today as they were when he was sentenced in 1998,
even taking into account the adjustments made by the Fair
Sentencing Act of 2010, there is no warrant for the Court to
exercise discretion to modify Gilbert's
sentence.The existing sentence is necessary to
accomplishing the objectives of 18 U.S.C. § 3553(a),
especially protection of the public and promoting respect for
the law. For the same reasons, the five year period of
supervised release will not be modified.
foregoing reasons, the DEFENDANT'S MOTION TO REDUCE
SENTENCE PURSUANT TO THE FIRST STEP ACT OF ...