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 pro se May 6, 2019 motion for a
sentence reduction and defendant's June 28, 2019
supplemental motion for the imposition of a reduced sentence
pursuant to the First Step Act. [Docs. 82, 84, 89]. The
government has responded, [Doc. 91], and the matter is now
ripe for review.
January 2010, the defendant pled guilty to Count Four of the
indictment for violating 21 U.S.C. §§ 841(a)(1),
and (b)(1)(A), possession with the intent to distribute fifty
grams or more of cocaine base. [See Docs 20, 40]. At
the August, 2011 sentencing, the Court found that the
offenses involved 454.55 grams of cocaine base, which
corresponded to a base offense level of 32. [Presentence
Investigation Report (PSR) ¶¶ 18-27]. Because the
defendant had prior convictions, he faced a mandatory
enhanced statutory penalty, which corresponded to a base
offense level of 37, rather than the lower level calculated
above. After a three-level adjustment for acceptance of
responsibility, the Court calculated a Guidelines range of
262 to 327 months under the career-offender guideline.
See USSG 4B1.1(b). The government, based on
defendant's substantial assistance, filed a motion for
downward departure recommending a five-level reduction in his
offense level from 34 to 29, which reduced his guideline
range to 151 to 188 months' imprisonment. [Doc. 30]. The
Court then granted the motion and imposed a sentence of 151
months' imprisonment and a five-year term of supervised
release. [Doc. 40 at 2-3]. Defendant unsuccessfully sought
postconviction relief. [Docs. 67, 68, 81]. The government and
defendant inform the Court that defendant's current
release date is January 10, 2021, according to the Federal
Bureau of Prison's website. [Docs. 89 at 3, 91 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. [Docs. 84, 89]. More particularly, defendant
argues his drug offenses are “covered offenses”
under Section 404(a), because the statutory penalty in Count
Four 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 109 months'
imprisonment, at the bottom of his new current guideline
range, which he would then render him eligible for a time
served sentence. [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. 91 at 2-3]. 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.
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. 89 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
6-14]. Defendant maintains the 50 grams of cocaine base
alleged in the plea agreement and indictment and not the
454.55 grams of cocaine base listed in the PSR dictate his
eligibility under 404.
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. 91 at 5-16]. Because defendant was found
responsible for 454.55 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 6].
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.
07-CR-245S(1), 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019)
(“it is the statute of conviction, not actual conduct,
that controls eligibility under the First Step Act”).
See also United States v. Stone, No. 1:96 CR 403,
2019 U.S. Dist. LEXIS 99457, at *6-7 (N.D. Ohio June 13,
2019); United States v. Laguerre, No.
5:02-CR-20098-3, 2019 WL 861417 (W.D. Va. Feb. 22, 2019).
cases have “cut against the grain” but these
decisions remain outliers. Martinez, 2019 WL
2433660, at *7. See, e.g., United States v.
Boulding, ___, F.Supp.3d___, No. 1:08-cr-65-01, 2019 WL
2135494 (W.D. Mich. May 16, 2019); United States v.
Blocker, ___ F.Supp.3d___, No. 4:07cr36-RH, 2019 WL
2051957, at *3-4 (N.D. Fla. Apr. 25, 2019); United States
v. Banuelos, No. 02-cr-084 WJ, 2019 WL 2191788, at *6-8