United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, SENIOR UNITED STATES DISTRICT JUDGE
Dwayne D. Bailey, through counsel, has moved for a reduction
of his 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 Bailey's motion.
February 14, 2008, a grand jury in the Western District of
Virginia returned a two-count indictment against Bailey. On
June 4, 2008, Bailey entered a plea of guilty to Count One of
the indictment, which charged him with distributing more than
5 grams of a mixture or substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Based
on the amount of cocaine base charged in Count One, Bailey
faced a mandatory term of imprisonment of 5 to 40 years under
then-applicable law. As a result, the offense was classified
as a Class B felony under 18 U.S.C. § 3559(a).
appeared for sentencing on September 3, 2008. At that time,
he was found to qualify as a career offender under §
4B1.1 of the United States Sentencing Guidelines. That
designation, coupled with the “offense statutory
maximum, ” produced a base offense level of 31 and a
criminal history category of VI. See U.S.S.G. §
4B1.1(b). The resulting Guidelines range of imprisonment was
188 to 235 months. The court varied from the Guidelines range
and imposed a term of imprisonment of 180 months, to be
followed by a four-year term of supervised
November of 2009, the government filed a motion for reduction
of sentence under Rule 35(b) of the Federal Rules of Criminal
Procedure. The court granted the motion and reduced
Bailey's term of imprisonment to 72 months.
August of 2014, while on supervised release, Bailey sold
heroin to a confidential informant. He was subsequently
charged with distributing a measurable quantity of heroin, in
violation of 21 U.S.C. § 841(a)(1). See
Indictment, Criminal Action No. 7:15-cr-00010, Dkt. No. 1.
Additionally, based on the new criminal conduct, the United
States Probation Office filed a petition to revoke
Bailey's supervised release. Because the offense for
which Bailey was on supervised release was classified as a
Class B felony at the time, he faced a statutory maximum term
of imprisonment of three years for violating his terms of
supervision. See 18 U.S.C. § 3583(e)(3). On May
9, 2016, the court revoked Bailey's supervised release
and sentenced him to the statutory maximum term of
imprisonment of 36 months, to be served consecutively with
the 75-month term of imprisonment imposed that same day in
Criminal Action No. 7:10-cr-00010 for the new substantive
offense. Bailey is currently serving the aggregate sentence
of 111 months. See 18 U.S.C. § 3584(c)
(“Multiple terms of imprisonment ordered to run
consecutively . . . shall be treated for administrative
purposes as a single, aggregate term of
has filed a motion for a sentence reduction based on Section
404 of the First Step Act. The court previously issued a
notice advising the parties that Bailey may be entitled to a
reduction of the 36-month term of imprisonment imposed upon
revocation of his supervised release. The motion is now ripe
404 of the First Step Act permits the court to retroactively
apply the statutory penalties modified by the Fair Sentencing
Act. See Pub. L. No. 115-391, § 404; 132 Stat.
5194, 5222 (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”). In particular, 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 [S]ections 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; 132 Stat.
at 5222. The Act defines a “covered offense” as
“a violation of a Federal criminal statute, the
statutory penalties of which were modified by [S]ection 2 or
3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124
Stat. 2372), that was committed before August 3, 2010.”
review of the record, the court concludes that Bailey is
eligible for a sentence reduction under the First Step Act.
It is undisputed that the cocaine base offense for which
Bailey was originally sentenced is a “covered
offense” for purposes of the 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) (citations omitted). As relevant here, Section 2 of the
Fair Sentencing Act increased the amount of cocaine base
required to trigger the statutory penalties set forth in 21
U.S.C. § 841(b)(1)(B) from 5 grams to 28 grams.
See Pub. L. No. 111-220, § 2(a)(1); 124 Stat.
2372, 2372 (2010). An offense involving less than 28 grams of
cocaine base is now classified as a Class C felony.
See 18 U.S.C. § 3559(a)(3); 21 U.S.C. §
841(b)(1)(C). “The effect of this reclassification not
only reduces the original statutory penalties for the drug
conviction, but also shortens the maximum revocation sentence
for a violation of supervised release from three years
(authorized for Class B felonies) to two years (authorized
for Class C felonies)." United States v.
Venable. ___ F.3d ___, 2019 U.S. App. LEXIS 34497, at *7
(4th Cir. Nov. 20, 2019). Because Bailey's revocation
sentence is considered to be "a component of his
underlying original sentence" for distributing cocaine
base, Bailey "is still serving his sentence for a
'covered offense' for purposes of the First Step
Act." Id. at* 15. Accordingly, the court is
authorized to reduce Bailey's sentence. Id.
review of the record, the court concludes that a sentence
reduction is warranted in Bailey's case. Although the
government correctly notes that the 36-month revocation
sentence was imposed as a sanction for a significant
violation of the court's trust, the same violation is now
punishable by a maximum term of imprisonment of two years.
See 18 U.S.C. § 3583(e)(3). Under the circumstances
presented, the court finds it appropriate to exercise its
discretion to grant a reduction. After considering the
parties' arguments and the sentencing factors set forth
in 18 U.S.C. § 3553(a), the court will reduce the period
of incarceration imposed upon revocation of Bailey's
supervised release from 36 months to 24 'months. All
other terms of Bailey's sentence will remain the same,
including the requirement that the 24-month revocation term
of imprisonment be served consecutively with the
75-month term of imprisonment
imposed in Criminal Action No. 7:15-cr-00010.
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
States Marshals Service, for delivery to the Bureau of
Bailey was sentenced by Senior United
States District Judge James C. Turk, who is now deceased. The
case was reassigned to the undersigned district ...