United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on the defendant's pro
se MOTION TO REDUCE DEFENDANT SENTENCE PURSUANT TO 18
U.S.C. § 3582(c) (ECF No. 163), the DEFENDANT'S
MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF
2018 (ECF No. 170), the RESPONSE OF THE UNITED STATES TO
DEFENDANT'S MOTION FOR MOEDIFICATION OF SENTENCE UNDER
THE FIRST STEP ACT OF 2018 (ECF No. 171), and the
DEFENDANT'S REPLY TO THE GOVERNMENT'S RESPONSE TO
DEFENDANT'S FIRST STEP ACT MOTION (ECF No. 174) . For the
reasons set forth below, the defendant's pro se
MOTION TO REDUCE DEFENDANT SENTENCE PURSUANT TO 18 U.S.C.
§ 3582(c) (ECF No. 163) and the DEFENDANT'S MOTION
TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018
(ECF No. 170) will be denied.
September 1999, Edwin Perez was tried by a jury and convicted
of one count of conspiracy to possess with intent to
distribute 50 grams or more of cocaine base, in violation of
21 U.S.C. § 846 and of one count of possession with
intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a). The United States
timely filed a Notice pursuant to 21 U.S.C. § 851 which
provides for an enhanced penalty by virtue of a previous drug
offense conviction. The drug weight attributed in the
Presentence Report to Perez was 576.25 grams of cocaine base.
The guidelines calculation provided for an offense level of
36, a criminal history category of IV, and a guideline rage
of 262 to 327 months imprisonment.
virtue of the First Step Act and the Fair Sentencing Act, the
current maximum penalty for the offenses of conviction is 40
years. The offense level is 3 0 and the criminal history
category is IV, with a mandatory minimum of 10 years of
imprisonment and the guideline range of 135 to 168 months of
record shows that Perez has long been involved in the
possession and distribution of controlled substances, having
been convicted of possession of controlled substances in 1995
and of distribution of controlled substances in 1996. Perez
was released from the Virginia Department of Corrections on
June 10, 1997. Shortly thereafter, Perez undertook the
conduct which resulted in the convictions in this case which
continued into the middle of 1999.
record shows that, while in prison, Perez has taken a
considerable number of courses intended to better himself.
The record also shows that a he has committed a number of
violations of the Bureau of Prisons' rules and
regulations, numbering approximately 30. Those infractions
include possessing a dangerous weapon and fighting with
another person on two occasions; assaulting others with and
without injury resulting; and threatening bodily harm. (ECF
No. 171-2). The most serious of his misconduct in prison was
assaulting a federal corrections employee of which he was
convicted and sentenced to 84 months in prison to run
consecutively with the sentence currently under review (ECF
for the United States and Perez agree that Perez is eligible
for modification of sentence under the First Step Act. And,
the Court agrees.
important issue in this case is whether to grant a
modification. That decision involves the exercise of
discretion as informed by the record and the motion, and the
papers supporting and opposing the motion, and the
defendant's record following his conviction.
record establishes that Perez has taken 19 adult continuing
education programs and seven release preparation programs. He
has earned his GED and completed five wellness programs. He
recently has been put into the ADX Step-down program as well.
The latter development reflects that his more recent conduct
in prison has not been contentious and violent as earlier
conduct while in prison.
the record in this case establishes beyond serious question
that Perez is a danger to society. He began participation in
the drug trade when he was 20. He received a lenient
sentence. He has a conviction for assault. He began the
offense conduct in this case very shortly after being
released from prison on the drug conviction in state court
for which he was accorded leniency. The nature and extent of
the conspiracy here was significant and, although Perez did
not receive a role adjustment, the record establishes that
his role in it was an important one.
record of violent and disruptive and disobedient behavior
while in prison is greater than the Court has ever seen. The
violations of the Bureau of Prisons' rules are many in
number. His violations span much of the period that Perez has
been in confinement. The history includes significant and
numerous acts of violence. The laudable efforts that Perez
has made to re-enter society while in prison does not
overcome the fact that he is a dangerous person and that the
sentence imposed in this case ...