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United States v. Terrell

United States District Court, E.D. Tennessee, Greeneville

July 29, 2019

UNITED STATES OF AMERICA
v.
ALEXIS DESMOND TERRELL

          MEMORANDUM AND ORDER

          LEON JORDAN, UNITED STATES DISTRICT JUDGE

         This criminal case is before the Court on the defendant's motion for sentence reduction. [Doc. 1445]. 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. 1449], and the defendant has submitted a reply. [Doc. 1455]. For the reasons that follow, the defendant's motion will be granted.

         I. Defendant's Eligibility for First Step Act Relief.

         “Federal 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 of those narrow exceptions is 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.

         Section 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).[1]

         Prior to the Fair Sentencing Act, 21 U.S.C. § 841 (as applied to the present defendant) mandated an enhanced sentence of twenty years to 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).

         The 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) (Count One) and conspiring to commit money laundering (Count 70). His Presentence Investigation Report (“PSR”) deemed him responsible for a drug quantity of 4.5 kilograms or more.

         The 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. 1449, p. 3, 7].

         As 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 statutory minimums).

         A 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.” Id.

         Further, 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).[2]

Thus,
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 ...

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