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 January 16, 2019 motion to modify an imposed
term of imprisonment, and defendant's May 23, 2019
supplemental motion for the imposition of a reduced sentence
pursuant to the First Step Act. [Docs. 59, 61]. The
government has responded, [Doc. 62], and defendant replied,
[Doc. 65]. The matter is now ripe for review.
September 2008, the defendant pled guilty to Count One of the
indictment for violating 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846, conspiracy to distribute, and possession
with the intent to distribute, fifty grams or more of a
mixture or substance containing a detectable amount of
cocaine base, and Count Nine of the indictment for violating
18 U.S.C. § 924(c)(1)(A), possession of a firearm in
furtherance of a drug trafficking crime. [See Doc.
30]. At the March 2009 sentencing hearing, the Court found
that the offense involved 567.3 grams of cocaine base, which
corresponded to a base offense level of 34. [Presentence
Investigation Report (PSR) ¶¶ 16]. After a
three-level reduction for acceptance of responsibility, the
Court calculated a Guidelines range of 135 to 168 months on
Count One. See U.S.S.G. 4B1.1(b). Count Nine,
possession of a firearm in furtherance of a drug trafficking
crime, carried a mandatory consecutive sentence of 60
months' imprisonment. [PSR ¶ 56]. See 18
U.S.C. § 924 (c)(1)(A). With the consecutive sentence,
defendant's total Guidelines range was 195 to
Court imposed a sentence of 120 months as to Count One, and
60 months as to Count Nine, to run consecutively, for a total
effective sentence of 180 months' imprisonment. [Doc. 51
at 2]. Defendant was sentenced to a five-year term of
supervised release as to Count One and a five-year term of
supervised release as to Count Nine, to run concurrently, for
a total effective term of supervised release of five years.
[Id. at 3]. The government and defendant inform the
Court that defendant's current release date is August 16,
2021, according to the Federal Bureau of Prison's
website. [Docs. 61 at 3, 62 at 2].
courts are forbidden, as a general matter, to modify a term
of imprisonment once it has been imposed, but the rule of
finality is subject to a few narrow exceptions. Freeman
v. United States, 564 U.S. 522, 526 (2011) (internal
citation and quotation marks omitted). One such exception is
18 U.S.C. § 3582(c)(1)(B), which provides that a
“court may modify an imposed term of imprisonment to
the extent otherwise expressly permitted by statute . . .
.” The First Step Act expressly permits sentence
modification for some defendants.
December 21, 2018, the President signed the First Step Act of
2018, Pub. L. 115-391, into law. Section 404 of the Act gives
retroactive effect to the changes made by Sections 2 and 3 of
the Fair Sentencing Act of 2010. Section 404(a) defines a
“covered offense” as “a violation of a
Federal criminal statute, the statutory penalties for 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.” Section 404(b) then provides
that “[a] court that imposed a sentence for a covered
offense may . . . impose a reduced sentence as if Section 2
or 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.”
August 3, 2010, the Fair Sentencing Act of 2010. Pub. L.
111-220, went into effect. Section 2 of the Act increased the
quantity of cocaine base required to trigger the enhanced
penalties of Section 841. Specifically, it raised the
(b)(1)(A) threshold from “50 grams” to “280
grams” and the (b)(1)(B) threshold from “5
grams” to “28 grams.” See Dorsey v.
United States, 567 U.S. 260, 269 (2012). Section 3
eliminated the mandatory minimum for simple possession of
cocaine base under 21 U.S.C. § 844(a). Congress did not
apply these changes retroactively to defendants sentenced
before the Act's passage. Accordingly, the defendant
could not obtain relief under the Fair Sentencing Act.
argues that he is eligible for a sentence reduction under
§ 404. [Doc. 61]. More particularly, defendant argues
his drug offense is a “covered offense” under
Section 404(a), because the statutory penalty in Count One
was modified by section 2 of the Fair Sentencing Act, and his
violation was committed before August 3, 2010. [Id.
at 4-6]. As such, he argues the Court should impose a reduced
proportional sentence of 147 months' imprisonment, at the
bottom of his new current guideline range, which he would
then render him eligible for a time served sentence and
subject to immediate release. [Id. at 6].
government argues that even though defendant committed his
offense before August 3, 2010, and even though his offense
carries the statutory penalties which were modified by
Section 2 or 3 of the Fair Sentencing Act, he does not
qualify for a sentence reduction. [Doc. 62 at 2-11]. The
government further argues that it is the drug weight for
which a defendant is held responsible and not the drug weight
for which he was convicted that determines eligibility for
First Step Act relief and that the drug quantity listed in
defendant's PSR makes him ineligible. [Id.].
argues “the quantity of crack charged and to which he
pled guilty is the relevant quantity for determining whether
defendant is eligible” for a § 404 reduction.
[Doc. 61 at 6]. Specifically, defendant argues that drug
weight is an element of the offense, and the statutory weight
controls eligibility and not the drug weight in the factual
basis of the plea agreement or the PSR. [Id. at
6-15]. Defendant maintains the 50 grams of cocaine base
alleged in the plea agreement and indictment and not the
567.3 grams of cocaine base listed in the PSR dictate his
eligibility under 404. [Id. at 15].
government asserts that whether a defendant is entitled to
relief under the First Step Act depends on the amount of
cocaine base for which he was found responsible in the PSR,
rather than the amount for which he was indicted and
convicted. [Doc. 62 at 11-12]. Because defendant was found
responsible for 567.3 grams of cocaine base, which would make
him subject to the 21 U.S.C. § 841(a)(1)(A) penalties,
the government argues that he is not entitled to relief under
the First Step Act. [Id. at 5].
government's interpretation of § 404(a) is contrary
to the weight of persuasive authority, both within and
outside the Sixth Circuit. See United States v.
Rose, ___ F.Supp.3d ___, No. 03-CR-1501 (VEC), 2019 WL
2314479, at *11-13 (S.D.N.Y. May 24, 2019) (collecting
cases); United States v. Stanback, ___ F.Supp.3d
___, 2019 WL 1976445, at *3 (W.D. Va. May 2, 2019)
(concluding defendant was eligible for relief despite a
judicial finding that he was responsible for 1.5 kilograms of
crack cocaine); United States v. Pride, Nos.
1:07CR00020-001, 1:07CR00020-002, 2019 WL 2435685, at *13-14,
(W.D. Va. June 11, 2019) (relying on the drug weight charged
in the indictment and not the drug weight attributed in the
PSR in considering defendant's First Step Act motion);
United States v. Martinez, No. 04-cr-48-20 (JSR),
2019 WL 2433660, at *7 (S.D.N.Y. June 10, 2019) (collecting
cases); United States v. Bradshaw, No.
2:05-cr-17-01, 2019 WL 2290595, at *4 (W.D. Mich. May 15,
2019) (holding the statute of conviction, and not the conduct
outlined in the PSR controlled); United States v.
Robinson, No. 97-30025, 2019 U.S. Dist. LEXIS 82432, at
*4-6 (C.D. Ill. May 15, 2019) (finding defendant eligible for
relief despite being held accountable for 500 grams of crack
cocaine at sentencing); United States v. Allen, No.
3:96-cr-00149-RNC-3, 2019 WL 1877072, at *2-3 (D. Conn. Apr.
26, 2019); United States v. Davis, No.