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 MOTION TO
REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF
No. 285), the UNITED STATES' RESPONSE TO DEFENDANT'S
MOTION FOR A SENTENCE REDUCTION UNDER THE FIRST STEP ACT (ECF
No. 287), the DEFENDANT'S REPLY TO THE GOVERNMENT'S
RESPONSE TO DEFENDANT'S MOTION UNDER THE FIRST STEP ACT
(ECF No. 290), and the UNITED STATES' SUR-REPLY REGARDING
DEFENDANT'S MOTION FOR MODIFICATION OF SENTENCE UNDER THE
FIRST STEP ACT OF 2018 (ECF No. 295). For the reasons set
forth below, DEFENDANT'S MOTION TO REDUCE SENTENCE
PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 285) will be
2005, Tyrone Henderson was convicted by a jury of conspiring
to distribute and possession with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§ 846 and of distribution of fifty grams or more of
cocaine base in violation of 21 U.S.C. § 841. Pursuant
to 21 U.S.C. § 851, the United States files a notice of
sentence enhancement. Henderson had a criminal history
category of VI, which together with his offense level of 38,
yielded a guideline range of 360 months to life imprisonment
(with a total 24 0 month mandatory minimum sentence because
of 21 U.S.C. § 851). Henderson was sentenced to 360
months on each count of conviction to run concurrently and to
ten years of supervised release.
February 2012, Henderson's sentence was reduced from 360
months to 324 months by virtue of the grant of a motion for
retroactive application of the sentencing guidelines as
applied to crack cocaine cases. In 2017, Henderson's
sentence was gain reduced from 324 months to 262 months.
the Fair Sentencing Act, the mandatory minimum would be ten
years (120 months) rather than twenty years (240 months).
Additionally, under the current guidelines, Henderson's
offense level would be 34 and considered in perspective of
his criminal history category VI, the advisory guideline
range would be 262 to 327 months (of course, limited by the
mandatory minimum sentence of 120 months).
record establishes that approximately one year from August
2003 to June 2004 Henderson and several others were engaged
in the distribution of crack cocaine in Richmond and
Petersburg, Virginia and elsewhere. Henderson supplied crack
cocaine to other members of the conspiracy and was the
subject of an undercover operation where he participated in
purchasing crack cocaine. In addition, Henderson arranged to
purchase substantial quantities of cocaine in June 2004 after
having been seized in April 2004 in the possession of a total
of approximately $9, 000.00 of United States currency and in
the company of a person who had an additional $2, 000.00. The
currency was the subject of an alert by a certified canine
dog. Henderson played an important role in the conspiracy but
was not given an enhancement for his role in the offense. For
purposes of relevant conduct, it was determined that
Henderson distributed 7.4 kilograms of cocaine base.
had an extensive criminal history beginning with possession
of cocaine at the age of 16 and again at the age of 18, again
at the age of 19 (this time possession of marijuana) and then
a number of offenses amounting to destruction of property and
obstruction of justice, failing to appear, driving offenses,
contempt of court, all of which he was given relatively
lenient sentences by the state court.
threshold issue in this case is whether Henderson is eligible
for reduction. For the reasons set forth in United
States v. Wirsing, __ F.3d __, No. 19-6381,
2019 WL 6139017 (4th Cir. 2019); United States v.
Mabry, 2019 U.S. Dist. LEXIS 192435, October 31, 2019
and United States v. Hardnett, __ F.Supp.3d__, No.
3:03cr12, 2019 WL 5445888 at *1 (E.D. Va. Oct. 24, 2019), the
Court concludes that Henderson is eligible for relief under
Section 404 (b) of the First Step Act. That is because,
before August 3, 2010, Henderson violated a federal statute,
the penalties for which were reduced by Sections 2 and 3 of
the Fair Sentencing Act of 2010.
to exercise that discretion and further modify
Henderson's period of confinement is a matter of
discretion that is to be informed by an examination of the
record, all of the papers in the case filed with respect to
the modification, the offense of conviction and criminal
history, as well as the defendant's post-offense
rehabilitation while in prison.
offense of conviction is indeed quite serious and the amount
of cocaine base involved is significant. While the amount of
cocaine base involved is not to considered in deciding
whether Henderson is eligible for modification of sentence
under Section 404(b) of the First Step Act, the quantity of
controlled substance is appropriate to consider in
determining whether to modify the sentence. Henderson's
original sentence has been twice modified so that is period
of confinement is 262 months and is projected release date is
now January 14, 2024. Henderson seeks a sentence of time
served, arguing that a variance under the sentencing
procedures is an appropriate way to achieve that result.
Court concludes that modification of sentence under Section
404 (b) of the First Step Act is not a resentencing and that
it is not appropriate the modification within the framework
of the guidelines (such as departures or variances) because
this is not a resentencing but, instead, is a modification or
reduction of sentence.
addition to the serious offense conduct and the significant
drug conspiracy and Henderson's extensive criminal
history, the record shows (raised for the first time in
Henderson's reply brief), that, while in prison, the
defendant argues that his most serious prior offense was a
state court conviction of simple possession of cocaine, one
in 1992 and one in 1995. He argues that the remainder of his
prior offenses were misdemeanor and driving offenses. There
is some truth to that argument but it ignores the fact that