United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge.
matter is before the Court on Defendant's motion for a
sentence reduction pursuant to the First Step Act of 2018
(FSA), passed by Congress and signed into law by the
President on December 21, 2018. This law contains sentencing
provisions that apply retroactively to certain
previously-sentenced defendants. His motion says that he is
eligible for resentencing, ECF No. 95, and the Government
agrees and consents to resentencing in this case, ECF No. 97.
After careful review, the Court concludes that he is eligible
for relief under the FSA and grants his motion.
was charged with and pled guilty to a charge of Possession
With Intent to Distribute 5 Grams or More of Cocaine Base in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). His statutory sentencing range was 5-40 years
incarceration and least 4 years supervised release. PSR
¶¶ 70, 74. His criminal record made him a career
offender and in light of the applicable statutory penalties,
Guidelines range at sentencing was 188-235 months
incarceration and 4-5 years supervised release, based on a
Total Offense Level 31 and Criminal History Category VI.
See PSR ¶¶ 71, 77. The Court imposed a
within-Guidelines sentence of 204 months incarceration,
followed by 4 years of supervised release. ECF No. 34.
to the FSA and as referenced in the Sentence Reduction Report
(SRR) prepared by the U.S. Probation Office, the statutory
penalties applicable to Defendant have been reduced to a
maximum of 20 years incarceration and at least 3 years
supervised release. In light of the new statutory maximum,
his career offender offense level is now 32. U.S. Sentencing
Guidelines Manual § 4B1.1(b)(3) (U.S. Sentencing
Comm'n 2018). The parties agree that, after taking into
account the reduction for acceptance of responsibility, his
new Guidelines range becomes 151-188 months incarceration and
3 years supervised release, based on a Total Offense Level 29
and Criminal History Category VI.
Defendant's motion, he asks the Court to reduce his
sentence and notes that even a sentence at the top of the new
range would likely result in his immediate release from
custody. The Government states that a reduction to the bottom
of the reduced range is appropriate. After careful
consideration of the record in this case and the §
3553(a) factors, and consistent with the Court's practice
in other FSA cases, the Court concludes that Defendant's
sentence should not be reduced below time served and that
this reduction should be stayed for ten days to allow the BOP
time to transition him in an orderly manner. See,
e.g., United States v. Clarke, No.
3:04-cr-00069-001, 2019 WL 1140239, at *3 (W.D. Va. Mar. 12,
2019) (declining to reduce the defendant's sentence below
time served and staying the effective date of the order);
United States v. Laguerre, No. 5:02-cr-30098-3, 2019
WL 861417, at *3-4 (W.D. Va. Feb. 22, 2019) (declining to
reduce the defendant's sentence below time
to the FSA, for the reasons set forth in the motion and SRR,
and in light of the Government's consent, Defendant's
motion, ECF No. 95, is GRANTED. Defendant is
now sentenced to a term of 168 months or time served,
whichever is greater, followed by 3 years supervised release.
An amended judgment will follow. This order is not effective
until the tenth day following its issuance.
IS SO ORDERED.
DATE: June 27, 2019
 Under the 2004 edition of the
Guidelines, which was the edition in effect at his
sentencing, his statutory maximum sentence of 40 years put
his career offender offense level at 34, prior to the
acceptance of responsibility reduction. U.S. Sentencing
Guidelines Manual § 4B1.1(b)(B) (U.S. Sentencing
 The Court notes that it appears that
Defendant has already served approximately 174 months of
actual incarceration (and may have accrued additional good
time credit, depending on his conduct while incarcerated).
See PSR ¶ 4 (noting that he has been in custody
since his arrest on December 15, 2004). However, for the
reasons set forth in Clarke and Laguerre,
the Court concludes that a sentence below time served is not
appropriate in this case.
Pursuant to United States v. Ketter, 908 F.3d
61 (4th Cir. 2018), to the extent that a sentence of time
served constitutes an upward variance, having carefully
considered the record in this case and the § 3553(a)
factors, the Court concludes that such a variance is
warranted. See, e.g., Laguerre, 2019 WL
861417, at *3-4 (“In particular, the need to protect
the public and the need for deterrence dictates that a
defendant not be allowed to ‘bank time,' which
could allow him to commit further crimes without the fear of
imprisonment. . . . The court also considers the need to
avoid unwarranted sentencing disparities and the fact that
other courts granting ...