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 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.
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, 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
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].
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].
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. 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].
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].
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).
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 ...