United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is Xavier Marcellus Paul's ("Paul" or
"defendant") pro se Motion to Reduce [Dkt.
No. 315] and a Supplemental Motion to Reduce Sentence
Pursuant to § 404 of the First Step Act of 2018 [Dkt.
No. 319] filed on his behalf by the Office of the Federal
Public Defender, In these motions, Paul seeks a reduction of
the term of imprisonment for his convictions related to the
possession with intent to distribute crack cocaine from 324
months to 288 months, or time served if the Bureau of Prisons
("BOP") determines that a sentence of 288 months
would result in Paul's immediate release. The United
States opposes these motions, arguing that Paul is ineligible
for relief under the First Step Act and that even if he were
eligible, relief should be denied under the circumstances of
his case. For the reasons stated below, Paul's motions
will be granted.
14, 1998, when Paul was 24 years-old, a federal grand jury in
the Eastern District of Virginia returned an indictment
charging him and three co-defendants with conspiracy to
possess and distribute 50 grams or more of cocaine base, a
Schedule II controlled substance, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) (Count 1), and charging Paul
with aiding and abetting the possession with intent to
distribute 50 grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 5).
[Dkt. No. 319-1]. At the time, under 21 U.S.C. §
841(b)(1)(A)(iii), each count carried a mandatory minimum
sentence of 10 years' imprisonment and a maximum of life
August 1998, Paul and one of his co-defendants proceeded to a
jury trial conducted by Judge James C. Cacheris, who has
since retired from the bench. At the close of trial, Judge
Cacheris instructed the jury that "[t]he evidence
received in this case need not prove the actual amount of the
controlled substance that was part of the alleged
transactions or the exact amount of the controlled substance
alleged in the Indictment"; instead, "[t]he
government must prove beyond a reasonable doubt... a
measurable amount of the controlled substance alleged in the
Indictment." [Dkt. No. 319-1] at 21. The jury found Paul
guilty of Counts 1 and 5, but in light of how it was
instructed, made no findings about the amount of cocaine base
involved in either offense. Id. at 25.
Presentence Investigation Report (PSR) held Paul accountable
for 3, 598 grams of cocaine base, [Dkt, No. 320] at 7, ¶
17, and on that basis calculated Paul's base offense
level to be 38, PSR Worksheet A, Id. at 21. The
probation officer added two levels for obstruction of justice
based on Paul testifying falsely during the trial, resulting
in a final offense level of 40. Id. at 8-9, 17.
Given that Paul's criminal history was assessed as a
category VI,  Id. at 17, ¶ 69-70, the
resulting sentencing range was 360 months to life
imprisonment. Through counsel, Paul objected to this
sentencing range, asserting, among other claims, that the
amount of drugs attributed to him in the PSR was too high and
that the PSR overstated the seriousness of his criminal
history. [Dkt. No. 319-1] at 30-39, 41-42. The Court
overruled Paul's objections, adopted the PSR, and
pursuant to the then-mandatory guidelines,  sentenced him to
360 months' imprisonment for each count, to run
concurrently and to be followed by a five-year period of
supervised release. [Dkt. No. 319-1] at 42-45, 47. The Court
concluded that this sentence was "more than
adequate" for punishment and deterrence. [Dkt. No.
319-1] at 45.
March 2010, Paul filed a prose motion for a sentence
reduction under Guideline Amendment 706, which lowered the
base offense levels for crack cocaine offenses. [Dkt. No.
287], This motion was denied because even with the reduction
in the base offense level, Paul's guideline range
remained the same: 360 months to life imprisonment. [Dkt. No.
293]. In November 2015, Paul moved, through counsel, for a
sentence reduction pursuant to Amendment 782 to the
guidelines. [Dkt. No. 309]. As Paul argued at the time, under
the amended guidelines and using the amount of cocaine base
used in the PSR, Paul's offense level should be 36, which
combined with a category VI criminal history would result in
an advisory guideline range of 324 months to 405 months. The
Court granted Paul's motion, and reduced his sentence
from 360 months to 324 months. [Dkt. No. 310].
Fair Sentencing Act of 2010, Congress amended §
841(b)(1) to reduce the disparity in the penalties for
cocaine-related drug offenses. As relevant here, it increased
the threshold for the statutory sentencing range often years
to life imprisonment from 50 grams to 280 grams of cocaine
base, and increased the threshold for the range of five to
forty years imprisonment from 5 grams to 28 grams of cocaine
base. Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372
(codified as amended at 21 U.S.C. § 841(b)(1)). And in
Section 404 of the First Step Act of 2018, Congress provided
mat a court that had "imposed a sentence" for a
"covered offense," meaning a pre-August 2010
violation of a federal criminal statute "the statutory
penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act," "may ... impose a reduced
sentence as if sections 2 and 3 of the [Act] were in effect
at the time the ... offense was committed." Pub. L. No.
115-391, § 404(a)-(b), 132 Stat. 5194, 5222. The First
Step Act makes clear that even if a defendant is eligible for
a sentence reduction, the decision whether to grant a
reduction remains within the district court's discretion.
See Id. § 404(c) ("Nothing in this section
shall be construed to require a court to reduce any sentence
pursuant to this section.").
September 13, 2019, Paul's Summary Reentry Plan -
Progress Report indicated that Paul's projected release
date is August 27, 2022, and that he has been incarcerated
for 21 years and three months, and has accrued 823 days of
good conduct time, statutory good time, or extra good time,
plus 167 days of jail credit. [Dkt. No. 319-2] at 13.
Combining these amounts, it appears that Paul has served at
least 288 months' imprisonment.
instant motion, Paul argues that the Court should reduce his
sentence from 324 months to 288 months or time served under
Section 404 of the First Step Act, in light of his
eligibility for such a reduction, the harshness of the prior
statutory penalties for crack cocaine offenses, and his
rehabilitation over the last twenty years. The government
argues both that the defendant is ineligible for a sentence
reduction under the First Step Act and that even assuming he
were eligible, such relief is inappropriate under the
circumstances of his case. Neither of the government's
arguments is persuasive.
government argues that Paul is ineligible for a First Step
Act reduction because he was not sentenced for a
"covered offense." Under the statute, a
"covered offense" is a pre-August 2010
"violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act." Pub. L. No. 115-391, §
404(a), 132 Stat. 5194, 5222. The government argues that the
phrase "the statutory penalties for which" modifies
the full phrase "a violation of a Federal criminal
statute," rather than simply "Federal criminal
statute." [Dkt. No. 322] at 6. Accordingly, the
government argues, the Court should evaluate Paul's
eligibility "by reference to the specific violation [he]
committed, rather than his statute of conviction."
Id. The government argues that Paul's violation,
as determined by reference to the offense conduct elicited
through trial testimony and described in the PSR, supports a
finding that he was responsible for more than 280 grams of
cocaine base and therefore would have been subject to the
same penalty range even if the Fair Sentencing Act had been
the Fourth Circuit squarely rejected this argument by
holding, in United States v. Wirsing, that
"[t]he most natural reading of the First Step Act's
definition of' covered offense' is that 'the
statutory penalties for which were modified by [certain
sections of the Fair Sentencing Act]* refers to 'a
Federal criminal statute' rather than 'a
violation of a Federal criminal statute, '"
and that this interpretation "is supported by the
statutory background in which the First Step Act was enacted
and which it incorporates." 2019 WL 6139017 at *8-9
(emphasis in original). The Fourth Circuit observed that
"[t]here is no indication that Congress intended a
complicated and eligibility-limiting determination at the
'covered offense' stage of the analysis," and
therefore adopted a "simple interpretation of the
statute": that "[a]ll defendants who are serving
sentences for violations of 21 U.S.C. §
841(b)(1)(A)(iii) and (B)(iii), and who are not excluded
pursuant to the expressed limitations in Section 404(c) of
the First Step Act, are eligible to move for relief under
that Act." Id. at *9.
such a defendant. At the time of Paul's offenses, the
applicable statutory penalties were provided under 21 U.S.C.
§ 841(b)(1)(A)(iii), which was modified by the Fair
Sentencing Act. None of the limitations in Section 404(c) of
the First Step Act apply. Paul's sentence was not previously
reduced under the Fair Sentencing Act,  nor has he filed
a previous First Step Act motion that was denied. The Court
has reviewed the government's remaining arguments with
respect to Paul's ...