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. 102), the UNITED STATES' RESPONSE TO DEFENDANT'S
MOTION FOR MODIFICATION OF SENTENCE UNDER THE FIRST STEP ACT
(ECF No. 103), and the DEFENDANT'S REPLY TO THE
GOVERNMENT'S RESPONSE TO DEFENDANT'S FIRST STEP ACT
MOTION (ECF No. 108). For the reasons set forth below,
DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE
FIRST STEP ACT OF 2018 (ECF No. 102) will be denied.
January 2010, Timothy L. Scaife pled guilty to one count of
distribution of five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a). In the Statement of
Facts accompanying the guilty plea, the parties agreed that
"for the purpose of sentencing the amount of drug weight
for which TIMOTHY LEE SCAIFE will be accountable will not
exceed 149 grams of cocaine base." Scaife was determined
to be a career offender and application of the career
offender guideline resulted in an offense level of 31, a
criminal history category of VI, which yielded a guideline
range of 188 to 235 months of imprisonment. Scaife was
sentenced to 235 months of imprisonment and four years of
the Fair Sentencing Act, the mandatory minimum period of
imprisonment would be twenty years; the offense level would
be 32 which, when reduced for acceptance of responsibility,
would result in an offense level of 29 which, with a criminal
history category VI would result in a sentencing range of 151
to 188 months. In the motion, Scaife offers no evidence of
post-conduct rehabilitation. However, in his reply brief,
Scaife notes that he has received positive work evaluations
from his superiors because of his work in the barber shop
where he is the lead barber. Scaife also notes that he has
completed several classes and programs and obtained a GED, as
well as taking drug treatment courses, vocational programs
and educational programs.
United States agrees that Scaife is eligible for modification
of sentence under Section 404(b) of the First Step Act but
argues that the motion should be denied because of the
lengthy and disturbing criminal history before Scaife's
arrest and his infractions during incarceration.
to grant a modification under Section 404(b) of the First
Step Act is a matter of discretion which should be informed
by an examination of the facts as presented in the record
taken as a whole, as well as the arguments of the parties,
the statement of defendant, and any post-offense
case the record reflects that Scaife willingly and
intentionally distributed more than five grams of crack
cocaine. According to the First Step Act Amendment Worksheet,
the converted drug weight attributable to Scaife was 1, 392.8
kilograms. The Presentence Report confirms that conclusion,
albeit by using a different method. Scaife freely admitted
his guilt at the time of his guilty plea and accepted
responsibility for his conduct.
criminal history is indeed, as the United States argues,
disturbing. In 1981, while in the army, Scaife was convicted
of rape. In 1985, Scaife was convicted of forcible sexual
abuse and robbery. In 1991, he was again convicted of robbery
and criminal possession of a weapon. In 2000, Scaife was
convicted of possessing cocaine with intent to distribute it
and possession of a firearm while in possession of drugs, and
possession of a firearm by a convicted felon, and alluding
police so as to create endangerment. As to all those
convictions, Scaife received relatively lenient sentences.
the United States argues that Scaife's disciplinary
record in prison must be taken into account, the Court has
examined the only two infractions that appear in the record.
They are relatively minor infractions, both attributable to
being absent from assignment once in 2013 and again in 2014.
argues that his criminal history began when he was a young
man, 18 years of age, and that the convictions were 34 years
ago. Accordingly, Scaife seeks a variance sentence, something
that is argued for the first time in the DEENDANT'S REPLY
TO THE GOVERNMENT'S RESPONSE TO DEFENDANT'S FIRST
STEP ACT MOTION (ECF No. 108). This argument proceeds upon
the theory that a modification of sentence under the First
Step Act is a new sentencing. That, however, is not the case.
Chavez-Meza v. United States, 138 S.Ct. 1959, 1967
(2018); see Dillon v. United States, 560 U.S. 817,
825 (2010); United States v. Jones, No. 3:04-cr-392,
ECF. No. 107 at 4-7 (E.D. Va. June 19, 2019).
who is now over 57 years of age, is currently projected to be
released from prison on October 21, 2026. He seeks a sentence
of time served which would be achieved by reducing the
original period of incarceration from 235 months to a period
of 151 months, just below the low end of his amended
reviewed the entire record, including Scaife's efforts at
rehabilitation, and considering the very serious nature of
the offense of conviction and Scaife's extremely serious
criminal history, and the fact that he has not learned from
previous extensions of leniency by the judiciary, the ...