United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
criminal matter is before the Court to address the
defendant's March 16, 2019 Motion to Reconsider and/or
Motion for Resentencing. [Doc. 74]. The government responded,
[Doc. 76], and defendant replied, [Doc. 77]. The matter is
now ripe for review.
was granted a sentence reduction in case number 2:03-CR-74
pursuant to Section 404 of the First Step Act of 2018, Pub.
L. 115-391. See United States v. Gregory L. Hardin,
No. 2:03-CR-74 (E.D. Tenn. Mar. 7, 2019). In 2003, this Court
imposed a 262-month sentence and a five-year term of
supervised release for a violation of 21 U.S.C. §
841(a)(1) and 846, conspiracy to distribute, and possession
with the intent to distribute, less than 50 grams of cocaine
base (crack). See Id. at [Doc. 407]. In that case,
it is undisputed that defendant's conviction is covered
under § 404 of the First Step Act. In briefing the First
Step Act motion, the parties advised the Court that defendant
had served 237 months' imprisonment, well over the
calculated proportionate reduction of 188 months. See
Id. at [Doc. 648]. The Court then reduced
defendant's sentence to a period of time served plus ten
days. See Id. at [Doc. 648].
defendant's term of imprisonment was reduced to time
served, defendant remained incarcerated serving a consecutive
eighteen-month conviction for a violation of supervised
release in case number 2:99-CR-36. [Doc. 72].
July 18, 2005 revocation hearing for case number 2:99-CR-36,
“defendant stipulated in open court that he has
violated the terms of his supervised release by his
conviction in N[o]. 2:03-CR-74.” [Id.]. The
Court found that a sentence on the lower end of the eighteen
to twenty-four sentence was appropriate, because it reflected
the seriousness of the offense, promoted respect for the law,
provided just punishment for the offense, afforded adequate
deterrence to criminal conduct, and protected the public from
further crimes of the defendant. [Id.]. The Court
then imposed an eighteen-month sentence to run consecutively
to defendant's sentence in case number 2:03-CR-74.
[Id.]. According to the parties, defendant began
serving the consecutive sentence on March 19, 2019. [Doc. 74
now argues that he has likely served more than the
proportionate sentence following the First Step Act reduction
combined with the eighteen-month sentence, and that the
proper resolution for both cases would be for his immediate
release. [Doc. 74]. Specifically, defendant's position
remains that the 213 months' imprisonment already served
should be credited towards both sentences. [Id.].
Defendant requests the “Court to reconsider the
specific relief granted in case number 2:03-cr-00074”
to a specific term of 188 months, to allow for
defendant's time served to be credited towards his
revocation sentence. Alternatively, defendant requests the
Court to enter an order resentencing defendant to “time
served” in case number 2:99-CR-36 “due to the
amount of time spent in prison” serving defendant's
2003 conviction. [Id. at 1-2].
government opposes defendant's request and contends that
the First Step Act “offers no basis to modify a
sentence for violating the terms of supervised
release.” [Doc. 76 at 2]. The government further argues
that defendant makes no reason to reduce his sentence in case
number 2:03-CR-74 to a sentence below the amount of time he
had served when the First Step Act was enacted.
to reduce a sentence is at the discretion of the Court and is
not required by the First Step Act. See First Step
Act § 404(c). See also 18 U.S.C. §
3582(c)(1)(B) (allowing a court can modify a term of
imprisonment “to the extent otherwise expressly
permitted by statute”). “If Congress intended for
courts to order defendants to be released immediately,
regardless of the circumstances, it could have written the
statute that way. It did not. The fact that the time-served
sentence has not resulted in defendant's immediate
release is not an ‘error.'” United States
v. Glore, __ F.Supp.__ 3d, No. 99-CR-82-pp., 2019 WL
1060838, at *21-22 (E.D. Wis. Mar. 6, 2019).
Court will not retract its decision to reduce defendant's
sentence to time served under the First Step Act in case
number 2:03-CR-74. To the extent that the defendant seeks the
Court to amend its order from time served to the specific
term of 188 months' imprisonment, defendant's request
is denied. A sentence of less than time served would allow
the defendant to have “banked time” to be applied
to any future term of imprisonment that might be imposed . .
. .” United States v. Fleurival, No.
5:06-cr-41-4, 2019, 2019 LEXIS 20057, at n.* (W.D. Va. Feb.
6, 2019). See United States v. Martin, No. 03-cr-795
(BMC), 2019 WL 2289850, at *10-12 (E.D.N.Y. May 28, 2019)
(explaining how resentencing to a specific term would allow
criminal defendants to “bank time” with respect
to other or future offenses); United States v. Paul,
No. 7:06-cr-89, 2019 WL 861420, at *5-6 (W.D. Va. Feb. 22,
2019) (discussing concerns of a court's reduction of a
sentence below time served would result in “banked
Court also considers the need to avoid unwarranted sentencing
disparities and the fact that other courts granting
reductions under the First Step Act have reduced sentences to
time served, even where a defendant already had served more
than the applicable guideline range. See United States v.
Jackson, No. 5:03-cr-30093, 2019 WL 613500, at *6 (W.D.
Va. Feb. 13, 2019) (refusing to reduce a sentence below time
served when granting relief under the First Step Act);
United States v. Thompson, No. 03-72, 2019 WL
460361, at *2 (W.D. Pa. Feb. 6, 2019) (noting that defendant
had already served over 54 months more than the high-end of
the guideline range, and reducing his sentence under the
First Step Act to time served).
Court further declines to reduce defendant's consecutive
revocation sentence to time served. The only sentence the
First Step Act authorized the Court to reduce is
defendant's conviction in case number 2:03-CR-74, and not
defendant's eighteen-month revocation sentence. The First
Step Act permits the court to impose a “reduced
sentence” and thus “modify” the term of
imprisonment under 18 U.S.C. § 3582(c)(1)(B).
See First Step Act § 404. Under §
3582(c)(1)(B), a Court can modify a term of imprisonment
“to the extent otherwise expressly permitted by
statute.” The First Step Act limits eligibility for
relief to a narrow class of defendants, and the
statutory language is devoid of any grant of authority to
permit courts to change or modify a sentence that is the
result of a violation of supervised release. See United
States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at
*7 (D. Conn. Apr. 26, 2019) (quoting Martin, 2019 WL
1558817, at *3) (“It is the statute of conviction, not
actual conduct that controls eligibility under the First Step
Act.”). Therefore, the Court declines to reduce
defendant's revocation conviction.
the First Step Act it does not “expressly permit”
full resentencing for reconsideration of the original
sentencing determinations. See First Step Act §
404(b). See also See United States v. Perkins, No.
CR06-0114-LRR, 2019 WL 1578367, at *3 (N.D. Iowa Apr. 3,
2019) (“a full resentencing is neither required nor
called for); United States v. Davis, No. 07-cr-2458,
2019 WL 1054554, at *4 (W.D.N.Y. Mar. 6, 2019) (“The
Act contemplates a recalculation of a defendant's
Guidelines numbers under the Fair Sentencing Act and a
possible sentencing reduction consistent therewith, if
warranted. Nowhere does the Act expressly permit the type of
plenary resentencing or sentencing anew that [defendant]