United States District Court, W.D. Virginia, Harrisonburg Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Malcolm Carl Young, through counsel, has moved for a
reduction of his sentence pursuant to the First Step Act of
2018. For the following reasons, the motion will be dismissed
without prejudice for lack of jurisdiction.
October 1, 2009, a grand jury in the Western District of
Virginia returned a three-count indictment against Young. On
December 3, 2009, Young entered a plea of guilty to Count One
of the indictment, which charged him with distributing a
detectable amount of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). As permitted by Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure, the
parties agreed that Young would receive a term of
imprisonment of "no less than 200 months and no more
than 220 months." Plea Ag. 2, Dkt. No. 18.
appeared for sentencing on March 23, 2010. At that time, he
was found to qualify as a career offender under § 4B1.1
of the United States Sentencing Guidelines. The court
ultimately sentenced Young to a term of imprisonment of 210
months, which was within the range the parties agreed to
under Rule 11(c)(1)(C) and the advisory Guidelines range.
now moves for a sentence reduction based on Section 404 of
the First Step Act. The motion has been fully briefed and is
ripe for disposition.
404 of the First Step Act permits courts to retroactively
apply the statutory penalties modified by the Fair Sentencing
Act of 2010. 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 sections 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 section 2 or 3
of the Fair Sentencing Act of 2010 (Public Law 111-220; 124
Stat. 2372), that was committed before August 3, 2010."
2 of the Fair Sentencing Act, on which Young relies,
"reduced the penalties for specific cocaine-related
offenses punishable under 21 U.S.C. § 841(b)(1)(A) and
(b)(1)(B) by increasing the amount of cocaine base required
to trigger certain statutory penalties."* United
States v. Venable. 943 F.3d 187, 188 (4th Cir. 2019).
More specifically, Section 2 "increased the quantities
applicable to cocaine base to 280 grams for the ten-year
mandatory minimum [under § 841(b)(1)(A)(iii)] and to 28
grams for the five-year mandatory minimum [under §
841(b)(1)(B)(iii)]." United States v. Wirsing,
943 F.3d 175, 178 (4th Cir. 2019). Consequently, "any
inmate serving a sentence for pre-August 3, 2010 violations
of 21 U.S.C § 841 (b)(1)(A)(iii) or (B)(iii) ... is
serving 'a sentence for a covered offense' and may
seek a Section 3 of the Fair Sentencing Act "eliminated
the mandatory minimum sentence for 'simple
possession' of cocaine base." United States v.
Wirsing. 943 F.3d 175, 178 (4th Cir. 2019) (citing Fair
Sentencing Act § 3, 124 Stat. at 2372 (codified at
§ 844(a)). sentence reduction under the First Step
Act." Id. (quoting First Step Act §
404(b), 132 Stat. at 5222).
case, Young is not serving a sentence for a pre-August 3,
2010 violation of § 841(b)(1)(A)(iii) or (B)(iii).
Instead, Young is serving a sentence imposed for distributing
a detectable amount of cocaine base, in violation of 21
U.S.C. § 841(b)(1)(C). The statutory penalties set forth
in § 841(b)(1)(C) were not modified by the Fair
Sentencing Act. United States v. Duggan, 771
Fed.Appx. 261, 261 (4th Cir. 2019) (per curiam).
Consequently, Young is not serving a sentence for a
"covered offense," and the court lacks jurisdiction
to reduce his sentence under the First Step Act.
Id.; see also United States v. Brown, No.
19-6544, 2019 U.S. App. LEXIS 35205, at *2 (4th Cir. Nov. 25,
2019) ("Because the Fair Sentencing Act did not modify
the statutory penalties [under 21 U.S.C. §
841(b)(1)(C)], Brown's offense is not a covered offense
and the district court correctly denied Brown's motion to
reduce his sentence pursuant to § 404 of the First Step
these reasons, Young's motion for a reduced sentence
under the First Step Act will be dismissed without prejudice
for lack of jurisdiction. See Duggan, 771 Fed.Appx.
at 261 (modifying the district court's order to reflect a
dismissal without prejudice for lack of jurisdiction).
Clerk is directed to send copies of this memorandum opinion
and the accompanying order to the ...