United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
JORDAN UNITED STATES DISTRICT JUDGE.
criminal case is before the Court on the defendant's
motion for sentence reduction. [Doc. 1438]. Through counsel,
the defendant asks the Court to reduce his sentence pursuant
to Section 404 of the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, which retroactively applies certain
provisions of the Fair Sentencing Act of 2010, Pub. L.
111-220, 124 Stat. 2372. The government has responded in
opposition to the motion [doc. 1443], and the defendant has
submitted a reply. [Doc. 1444]. For the reasons that follow,
the defendant's motion will be granted.
Defendant's Eligibility for First Step Act
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 identified in 18 U.S.C. § 3582(c)(1)(B),
which provides that “the court may modify an imposed
term of imprisonment to the extent otherwise expressly
permitted by statute . . . .” The First Step Act, which
was enacted on December 21, 2018, is one such statute.
404(b) of the First Step Act instructs that the “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 . . .
were in effect at the time the covered offense was
committed.” A covered offense is “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 . . ., that was committed before August 3, 2010.”
First Step Act, § 404(a).
to the Fair Sentencing Act, 21 U.S.C. § 841 (as applied
to the present defendant) mandated an enhanced sentence of
life imprisonment for violations of section 841(a)(1)
involving 50 grams or more of cocaine base. See 21
U.S.C. § 841(b)(1)(A)(iii) (2009). For 841(a)(1)
violations involving five grams or more (but less than 50
grams) of cocaine base, the enhanced statutory penalty was
ten years to life. See Id. § 841(b)(1)(B)(iii).
Since the enactment of the Fair Sentencing Act, the
841(b)(1)(A)(iii) penalties now apply only to offenses
involving 280 grams or more of cocaine base, and the
841(b)(1)(B)(iii) penalties apply only to offenses involving
28 grams or more (but less than 280 grams) of cocaine base.
See 21 U.S.C. § 841(b) (2018); Dorsey v.
United States, 567 U.S. 260, 269 (2012).
present defendant pled guilty to conspiring to distribute and
possess with the intent to distribute fifty grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(A). His Presentence Investigation Report
(“PSR”) deemed him responsible for a drug
quantity of at least 500 grams but less than 1.5 kilograms.
United States opposes the instant motion on multiple grounds.
Primarily, it presents various arguments that the defendant
is not eligible for First Step Act relief because he was not
sentenced for a “covered offense” as defined by
that legislation. Further, it is the United States'
position that granting the instant motion (and those of
similarly situated defendants) would result in “mass
disparity” which would “defeat the plain
Congressional intent in the First Step Act of assuring like
treatment of like offenders.” [Doc. 1443, p. 3, 7].
noted, the First Step Act 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 . . .,
” First Step Act, § 404(a). The United States
argues that the limitation “the statutory penalties for
which were modified by” in fact describes the word
“violation” rather than the immediately preceding
words “a Federal criminal statute.” In turn, the
United States submits that the word “violation”
means the entirety of a defendant's conduct-such as the
drug quantity found in a PSR or the factual basis of a plea
agreement-rather than the drug quantity threshold of the
statute of conviction. Therefore, according to the
government, a court can still find a § 404 movant
responsible (for statutory sentencing purposes) for
the higher drug quantity from, for example, his PSR. That is
so, says the government, because the Constitutional
safeguards of Alleyne were not “in effect at
the time the covered offense was committed, ” First
Step Act, § 404(b), and the holdings of those cases are
not to be applied retroactively. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (With the exception of
prior convictions, facts that increase a crime's penalty
beyond the statutory maximum must be submitted to
the jury and proved beyond a reasonable doubt.); Alleyne
v. United States, 570 U.S. 99, 114-16 (2013) (extending
Apprendi's holding to facts that increase
venture into the definitional morass of the United
States' “violation” argument is unnecessary
because this Court finds that the First Step Act uses the
words “the statutory penalties for which were modified
by” to describe the immediately preceding words
“a Federal criminal statute.” See, e.g.,
United States v. Rose, p.3d 223');">379 F.Supp.3d 223, 228 (S.D.N.Y.
2019) (persuasively explaining that § 404(a)'s
“‘penalties' clause modifies the adjacent
noun phrase, ‘Federal criminal statute[, ]'”
rather than the more distant noun, “violation.”).
“Here, the “penalties clause' is most
naturally read as modifying ‘Federal criminal
statute,' the noun phrase immediately next to it.”
this Court agrees with those cases which have rejected the
United States' Alleyne argument. True,
Apprendi and Alleyne do not retroactively
apply on collateral review, but the majority of courts to
thus far consider the issue have concluded that those
cases' holdings are nonetheless applicable to § 404.
See, e.g., United States v. Burke, No.
2:08-CR-63(1), 2019 WL 2863403, at *3 (E.D. Tenn. July 2,
2019) (Greer, J.) (collecting cases). “[I]t is not only
appropriate but also realistic to presume that Congress was
thoroughly familiar with . . . important precedents . . . and
that it expected its enactment to be interpreted in
conformity with them.” Cannon v. Univ. of
Chicago, 441 U.S. 677, 699 (1979); accord
Burke, 2019 WL 2863403 at *3 (collecting cases).
“The First Step Act neither directs nor implies that
the Court should perpetuate the application of an
unconstitutional practice when determining a new sentence
that complies with the Act's directives, and many courts
faced with the issue have applied the Apprendi rule
in First Step Act re-sentencings.” United States v.
Stone, No. 1:96 CR 403, 2019 WL 2475750, *2 (N.D. Ohio
June 13, 2019) (collecting cases).
eligibility under the language of the First Step Act turns on
a simple, categorical question: namely, whether a
defendant's offense of conviction was a crack cocaine
offense affected by the Fair Sentencing Act. If so, the
defendant is categorically eligible for consideration
regardless of actual quantities. The particular quantities
affect only the Court's discretionary call on whether to
grant a reduction in sentence.
. . .
This is a categorial decision based on the type of prior
conviction, not any particular quantity determination. The
Court then determines whether to exercise its discretion to
reduce the defendant's sentence. This determination is
informed by a guideline comparison between the guidelines as
they existed during the original sentencing and the
guidelines as they exist today, as well as from any other
information the parties present or the Court chooses to
consider. Based on this information, the Court will then
determine the extent of any reduction it decides in its
discretion to award, consistent with ...