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United States v. Thompson

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

August 20, 2019

UNITED STATES OF AMERICA
v.
MARCUS THOMPSON

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         This criminal matter is before the Court to address the defendant's April 25, 2019 motion for the imposition of a reduced sentence pursuant to Section 404 of the First Step Act. [Doc. 183]. The government has responded, [Doc. 184]. The matter is now ripe for review.

         I. Background

         In April 1999, the defendant pled guilty to Count One of the indictment for violating 21 U.S.C. §§ 841 (b)(1)(A) and 846, conspiracy to distribute, and possession with the intent to distribute cocaine hydrochloride and cocaine base. [See Doc. 76]. At the April 2000 sentencing hearing before the Honorable Thomas G. Hull, the Court found that the offense involved 53.1 grams of cocaine base[1], which corresponded to a base offense level of 32. [Presentence Investigation Report (PSR) ¶¶ 56-57]. Because the defendant had two prior federal drug convictions, he faced an enhanced statutory penalty of twenty years to life imprisonment.

         After a three-level reduction for acceptance of responsibility, the defendant's total offense level was 34 and his criminal history category was VI. [PSR ¶ 24]. This yielded an advisory sentencing guideline range of 262 to 327 months' imprisonment, but restricted by the enhanced mandatory minimum of 240 months' imprisonment. See U.S.S.G. 4B1.1(b). The government moved for downward departure based on defendant's substantial assistance; the Court granted the government's § 5K1.1 motion and imposed a sentence of 144 months and a ten-year term of supervised release. [Doc. 144]. Defendant unsuccessfully sought postconviction relief. [Docs. 178, 179].

         To this date, the Court has been advised that defendant has been in federal custody for 87 months, and has a projected release date of October 15, 2022, according to the Federal Bureau of Prison's website. [Docs. 183 at 2; 184 at 4].

         II. Analysis

         “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 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.

         On 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.”

         On 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.

         Defendant argues that he is eligible for a sentence reduction under § 404. [Doc. 183]. More particularly, defendant argues his drug offense is a “covered offense” under Section 404(a), because the statutory penalty in was modified by section 2 of the Fair Sentencing Act, and his violation was committed before August 3, 2010. [Id. at 6-7]. Defendant argues the Court should impose a reduced sentence of 144 months' imprisonment. [Id. at 10]. According to the defendant, the calculation should include his time served in both federal and state prison on charges stemming from relevant conduct, rendering him eligible for a time served sentence and subject to immediate release. [Id. at 7-10].

         The 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, the Court should refrain from imposing a sentence reduction in this case. [Doc. 184 at 4-6]. Specifically, the government contends that under the Fair Sentencing Act, defendant's career-offender guideline range remains unchanged, and therefore, should not warrant a sentence reduction. [Id. at 4-5].

         Applying the Sentencing Guidelines as they existed at the time of the Defendant's sentencing, but modifying any calculation of the offense 1evel as though Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the defendant committed the offense, the Act reduced defendant's enhanced mandatory minimum from twenty-years to ten-years imprisonment with the statutory maximum remaining life imprisonment. See U.S.S.G. 4B1.1(b). Based thereon, as a career offender, defendant's guideline range remains unchanged at 262 to 327 months' imprisonment. The fact that defendant's guideline range remains unchanged, however, does not foreclose a reduction of his sentence, at least not where the mandatory minimum sentence was thereafter reduced by Section 2 of the Fair Sentencing Act. See United States v. Bean, No. 1:09-cr-143, 2019 WL 2537435, at *5-6 (W.D. Mich. June 20, 2019). “If Congress had intended to limit eligibility under § 404 only to cases in which the guideline range had been lowered, again, it could have said so, but the First Step Act contains no such limiting language and this Court shall not read such a limitation into the statute.” United States v. Garrett, No. 1:03-cr-00062-SEB-DML-01, 2019 WL 2603531, at *7-8 (S.D. Ind. June 25, 2019).

         Under the First Step Act, the Court may "exercise the full range of its discretion consistent with the Section 3553(a) factors." Bean, 2019 WL 2537435, at *6. The defendant notes that he has only been in federal custody since May 2012 and his federal ...


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