United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
case comes before the court on Defendant's Motion for
Relief under the First Step Act of 2018. ECF No. 138. The
court has considered Defendant's motion, the Sentence
Reduction Report (“SRR”) (ECF No. 134), the
PreSentence Report (“PSR”) (ECF No. 134-1), the
Government's Responses (ECF Nos. 137, 141), and
Defendant's Reply (ECF No. 142).
August 2007, Defendant entered a guilty plea to possession
with intent to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). ECF Nos. 34 (amended plea agreement), 36
(guilty plea). Because of a prior drug felony, he faced a
penalty of 20 years to life imprisonment under 21 U.S.C.
§ 851. ECF No. 10. Due to his status as a career offender,
his total offense level was 34 and his criminal history
category was VI, resulting in an advisory guideline range of
262 to 327 months' imprisonment and at least ten
years' supervised release. ECF No. 134-1 at 19, 22. He
was sentenced on January 18, 2008 to 262 months'
imprisonment and ten years' supervised release.
2010, Congress passed the Fair Sentencing Act to reduce the
disparity in the treatment of cocaine base and powder cocaine
offenses. See Pub. L. No. 111-220, 124 Stat. 2372 (increasing
the quantities of cocaine base required to trigger
§§ 841(b)(1)(A) and (B)). The Fair Sentencing Act,
however, did not apply retroactively until Congress passed
the First Step Act of 2018. See Pub. L. No. 115-391, 132
Stat. 5194. Under § 404 of the First Step Act, a court
that imposed a sentence for an offense covered under the Fair
Sentencing Act “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
offense was committed.” Id. A court is not
required to reduce a sentence under § 404. Id.
Moreover, a sentence may not be reduced if the sentence was
previously imposed or reduced in accordance with the Fair
Sentencing Act, or if the defendant made a previous motion
for a sentence reduction under § 404 of the First Step
Act that was denied on the merits. Id.
sentence was not previously imposed or reduced in accordance
with the Fair Sentencing Act, and he has made no other motion
for a sentence reduction under the First Step Act. Had the
Fair Sentencing Act been in effect at the time of
Defendant's sentencing, his statutory mandatory minimum
sentence would have been ten years due to a drug quantity
between 28 and 280 grams and his prior felony drug
conviction. See § 841(b)(1)(B); Pub. L. No. 111-220, 124
Stat. 2372. Defendant would also have been subject to at
least eight years' supervised release.
argues, however, that due to developments in the law since
his sentencing, he is no longer subject to the § 851
enhancement and no longer qualifies as a career offender.
Thus, Defendant contends he is entitled to a new sentencing
hearing where his statutory range would be five to 40 years
imprisonment with a guideline range of 188 to 235 months.
Government agrees Defendant is eligible for a reduced term of
supervised release. It contends, however, that because his
guideline range is unchanged, i.e., 262-327 months, he is not
eligible for a reduced sentence of incarceration.
court finds Defendant is not entitled to a new sentencing
hearing and a reconsideration of the § 851 enhancement
and career offender determinations made at the time of
sentencing. Neither the Fair Sentencing Act nor the First
Step Act expressly provide for a full or plenary resentencing
for reconsideration of original sentencing determinations.
The First Step Act simply permits a court to “impose a
reduced sentence” as if the Fair Sentencing Act's
increased cocaine base requirements “were in effect at
the time the covered offense was committed.” Pub. L.
No. 115-391, 132 Stat. 5194.
to the Government's suggestion, however, nothing in the
First Step Act conditions eligibility for a reduced sentence
on a lowered guideline range. The Act provides authority to
impose a reduced sentence when application of the Fair
Sentencing Act results in a lower statutory range. Thus,
whether the guideline range changes or not, Defendant may be
considered for a reduced sentence of incarceration where his
statutory mandatory minimum sentence is lowered. In deciding
whether to impose a reduced sentence, the court will consider
the new statutory range, the guideline range, the factors in
18 U.S.C. § 3553(a), and evidence of post-sentencing
is some dispute over the procedure to implement § 404 of
the First Step Act. Some suggest the proper vehicle is a
motion for a sentence reduction under 18 U.S.C. §
3582(c)(2). That provision allows the court to reduce a
defendant's previously imposed sentence where “a
defendant . . . has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(o) . . .” Section 994(o), in turn, gives the
Sentencing Commission direction to periodically review and
revise the Sentencing Guidelines. However, the sentencing
changes wrought by the retroactive application of the Fair
Sentencing Act are not the result of the sentencing
Commission's revision to the Sentencing Guidelines, but
Congress's enactment of a new statute. Therefore, by its
plain terms, § 3582(c)(2) cannot apply.
court believes the applicable provision is 18 U.S.C. §
3582(c)(1)(B), which provides that a “court may not
modify a term of imprisonment once it has been imposed except
that - (1) in any case - . . . (B) the court may modify an
imposed term of imprisonment to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.” Section 404 of the First
Step Act expressly authorizes by statute changes to the
penalty range for certain long-final sentences.
404 must be read together with other existing statutes -
including § 3582(c). See, e.g., United States v.
Fausto, 484 U.S. 439, 452-53 (1988) (courts must carry
out the “classic judicial task of reconciling many laws
enacted over time, and getting them to ‘make sense'
in combination.”). Significantly, § 3582 provides
an overarching provision that governs the finality of
criminal sentences. See, e.g., United States v.
Goodwyn, 596 F.3d 233, 245 (4th Cir. 2010) ([T]he law
closely guards the finality of criminal sentences, ”
and “Section 3582, which governs the imposition of
federal prison sentences, embraces this principle.”).
3582(c)(1)(B) provides a straightforward way to implement the
retroactive changes in the First Step Act because it permits
a modification of a sentence when “expressly permitted
by statute, ” as the First Step Act does here. Other
district courts analyzing First Step Act motions for relief
agree. See, e.g., United States v. Davis, No.
07-cr-245S, 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019);
United States v. Potts, No. 2:98-cr-14010, 2019 WL
1059837, at *2-3 (S.D. Fl. Mar. 6, 2019); United States
v. Delaney, No. 6:08-cr-00012, 2019 WL 861418, at *1
(W.D. Va. Feb. 22, 2019); United States v. Fountain, No.
1:09-cv-00013, 2019 WL 637715, at *2 (W.D. N.C. Feb. 14,
2019); United States v. Jackson, No. 5:03-cr-30093,
2019 WL 613500, at *1 (W.D. Va. Feb. 13, 2019); United
States v. Copple, No. 17-cr-40011, 2019 WL 486440, at *2
(S.D. Ill. Feb. 7, 2019); United States v. Drayton, Crim.
No. 10-20018, 2019 WL 464872, at *2 (D. Kan. Feb. 6,
2019);United States v. Kambler, No. 09-cv-40050,
2019 WL 399935, at *2 (S.D. Ill. Jan 31, 2019).
3582(c)(1)(B) also fits the structure of § 404 of the
First Step Act. Section 404(b) of the First Step Act and
§ 3582(c) both provide that multiple actors - including
a district court, the Director of the Bureau of Prisons, the
Government, and defendants - may initiate requests for
sentence reductions. Statutory provisions in § 3582(c)
cover: motions filed by the Government (such as motions under
Fed. R. Crim. P. 35 addressed in § 3582(c)(1)(B));
motions filed by the Director of the Bureau of Prisons (such
as motions addressed in § 3582(c)(1)(A) and (c)(2));
motions filed by ...