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 First Step Act of 2018. ECF No. 4307. The United
States Probation Office filed a Sentence Reduction Report
(“SRR”) indicating eligibility for a reduction on
Count 1 as that conviction was for a covered offense. ECF No.
4286. The Government filed a response in opposition (ECF No.
4315), and Defendant filed “additional
attachments” to his motion (ECF No. 4322). The court
entered a text order directing the parties to address the
impact of Defendant's conviction on Count 16 on his
eligibility and on a potential sentence reduction under the
First Step Act. ECF No. 4328. Defendant filed a supplemental
motion in response (ECF No. 4333) and the Government filed a
response (ECF No. 4334). The court then held a hearing on
July 16, 2019. ECF No. 4340.
reasons set forth below, the court finds Defendant's
statutory range on Count 1 is changed by the First Step Act
and is no longer 10 years to Life and at least five
years' supervised release, but is now five-40 years and
at least four years' supervised release. Defendant's
advisory guideline range is 360 to 480 months. His current
sentence is 360 months and five years' supervised
release. The court will consider the new statutory range, the
advisory guideline range, factors in 18 U.S.C. §
3553(a), and any evidence of post-sentencing mitigation in
deciding whether to impose a reduced sentence of
incarceration. Therefore, the parties shall file, on or
before August 15, 2019, any further submissions relevant to
was charged in a Third Superseding Indictment with four
counts: Count 1, conspiracy to possess with intent to
distribute and to distribute five kilograms or more of
cocaine and 50 grams or more of cocaine base in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846;
Count 2, conspiracy to commit money laundering, in violation
of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(3)(A),
and 1956(h); Count 5, possession with intent to distribute
and distribution of a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Count 16,
possession with intent to distribute and distribution of 500
grams or more of cocaine, in violation of 21 U.S.C. §
841(a)(1). ECF No. 871. Following a jury trial, he was found
guilty on all four counts.
Count 1, the jury was instructed that Defendant could be
convicted based on proof of a conspiracy involving five
kilograms or more of cocaine “and/or” 50
grams or more of cocaine base; the jury instructions
specifically note “the Government must prove that the
overall scope of the conspiracy involved at least 5 kilograms
of cocaine or at least 50 grams of cocaine base, commonly
known as “crack” cocaine.” ECF No. 1542 at
28-29. The guilty verdict on Count 1, rendered on November
19, 2003, did not require the jury to specify whether they
found Defendant guilty based on cocaine, cocaine base, or
both. ECF No. 1545. Defendant was also found guilty on Counts
5 and 16, distribution of cocaine, not cocaine base, in
different amounts. Id. He was initially sentenced to
Life imprisonment. ECF No. 1986. At Booker
resentencing, Defendant was sentenced to a total term of 360
months imprisonment: 240 months each on Counts 1, 2, and 5,
and 360 months as to Count 16, all to run concurrently. He
received a supervised release term of five years, consisting
of five years as to Count 1, three years as to Counts 2 and
5, and four years as to Count 16. ECF No. 2456.
Step Act Eligibility
Government contends Defendant is not eligible for relief on
Count 1 because the majority of the evidence at trial on that
count concerned Defendant's involvement in cocaine, as
opposed to cocaine base. Because the amounts of cocaine
testified to far exceeded five kilograms, the Government
submits “the jury, in convicting Williams on Count One,
clearly accepted that he was involved in the distribution of
5 kilograms of cocaine or more.” ECF No. 4315 at 7.
the statute of conviction, not actual conduct, that
determines eligibility for relief under the First Step Act.
United States v. Powell, 5:02-cr-206, 2019 WL
1198005, at *3 (N.D.N.Y. Mar. 14, 2019); United States v.
Davis, No. 07-cr-245S(1), 2019 WL 1054554, at *2-3
(W.D.N.Y. Mar. 6, 2019); United States v. Glore, No.
99-cr-82-pp, 2019 WL 1060838, at *2 (E.D. Wis. Mar. 6, 2019).
To be eligible, a defendant must have been convicted of a
“covered offense” committed before August 3,
2010. Whether an offense is a “covered offense”
is determined by examining the statute the defendant
violated. See First Step Act, § 404(a), Pub. L.
No. 115-391, 132 Stat. 5194. If that statute is one for which
the statutory penalties were modified by sections 2 or 3 of
the Fair Sentencing Act, it is a “covered
The Fair Sentencing Act increased the quantity of cocaine
base to apply a mandatory minimum 10-year sentence to 280
grams or more. 21 U.S.C. § 841(b)(1)(A). Consequently,
as to Count 1, if the jury only found Defendant guilty of a
conspiracy involving 50 grams or more of cocaine base, the
conviction meets the “covered offense”
requirement of the First Step Act. Unfortunately, at the time
of the trial, juries were not required to specify whether
five kilograms or more of cocaine or 50 grams or more of
cocaine base or both were the basis for their verdict, as the
statutory penalties were the same.
the rule of lenity, the court finds that Defendant was
convicted of a “covered offense” that he
committed before August 3, 2010. Defendant's 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 range on Count 1 for conspiracy
involving 50 grams or more of cocaine base would have been
five - 40 years under 21 U.S.C. § 841(b)(1)(B).
Defendant would have been subject to four years supervised
release on Count 1.
of Additional Conviction on Eligibility
case is distinguishable from that of his co-defendants due to
his additional conviction for possession with intent to
distribute and distribution of 500 grams or more of cocaine
(Count 16). His sentence on this count is 360 months, higher
than the sentence on the conspiracy count (Count 1). By text
order of June 12, 2019, the court ordered the parties to
address any effect the conviction and sentence for Count 16
may impact Defendant's eligibility for relief on Count 1.
ECF No. 4328.
argues Defendant remains eligible for relief under the First
Step Act on Count 1, the “most serious offense”
on which Defendant was convicted, and contends the unchanged
statutory range on Count 16 has no effect on his eligibility
for relief. ECF No. 4333. The Government agrees the
conviction on Count 16 is not for a covered offense under the
First Step Act, but argues that conviction “should not
impact the court's decision regarding Williams'
eligibility for relief.” ECF No. 4334 at 1-2. It
contends “if a defendant received a sentence for a
crack offense that is concurrent to sentences imposed for
non-crack offenses, the court may impose a new sentence that
has the effect of reducing the terms of imprisonment for the
non-crack offenses.” Id. at 1. Essentially,
because the ...