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 pro se Motion
to Reduce Sentence pursuant to the First Step Act of 2018.
ECF No. 452. The Government filed a Response in Opposition.
ECF No. 455. The United States Probation Office filed a
Sentence Reduction Report indicating Defendant does not
qualify for relief under the Act. ECF No. 451.
initial matter, Defendant argues his sentence should be
reduced because he is serving a mandatory minimum 240-month
sentence, and the mandatory minimum sentence for his
conviction of a violation of § 841(b)(1)(A) has been
reduced to 15 years by the First Step Act. ECF No. 452.
However, that portion of the First Step Act, Section 401, was
not made retroactive to prior convictions. It only applies to
defendants who have not yet been sentenced. See § 401(c)
(“This section, and the amendments made by this
section, shall apply to any offense that was committed before
the date of enactment of this Act, if a sentence for the
offense has not been imposed as of the date of
enactment.”) (emphasis added). As Defendant has already
been sentenced for the violation of § 841(b)(1)(A), he
is not eligible for relief under § 401 of the First Step
is Defendant eligible for a reduction under § 404 of the
First Step Act, which retroactively applies the Fair
Sentencing Act to some convictions for cocaine base. The
court has reviewed the above filings as well as the
Superseding Indictment (ECF No. 167), Defendant's Plea
Agreement (ECF No. 196), Transcript of Rule 11 hearing (ECF
No. 458), and PreSentence Report (“PSR”) (ECF No.
451-1) in making this determination.
charged in Count 1 of the Superseding Indictment that
knowingly and intentionally did combine, conspire, agree and
have tacit understanding with each other and with others,
both known and unknown to the grand jury, to knowingly,
intentionally, and unlawfully possess with intent to
distribute and to distribute cocaine and cocaine base
(commonly known as “crack” cocaine), both
Schedule II controlled substances, said conspiracy involving
5 kilograms or more of cocaine, and 50 grams or more of
“crack” cocaine, in violation of Title 21, United
States Code, Sections 841(a)(1) and 841(b)(1)(A); All in
violation of Title 21, United States Code, Section 846.
ECF No. 167 at 1, 2. Defendant thereafter entered into a Plea
Agreement to plead guilty to Count 1, which provided the
Defendant agrees to plead guilty to Count 1 of the
Superseding Indictment now pending, which charges
“Conspiracy to Possess with Intent to Distribute and to
Distribute 5 kilograms or more of cocaine and 50 grams or
more of cocaine base, ” a violation of Title 21, United
States Code, § 846.
order to sustain its burden of proof, the Government is
required to prove the following:
The conspiracy described in the Indictment to distribute
the charged amount of controlled substances was willfully
formed and was existing on or about the alleged time;
The defendant willfully became a member of the conspiracy;
The defendant distributed a quantity of a controlled
substance(s) equal to or in excess of the amount charged in
Count 1, agreed to assist in the distribution of a quantity
of controlled substance(s) equal to or in excess of the
amount charged in Count 1, or the distribution of the
threshold quantity of controlled substance(s) equal to or
in excess of the amount charged in Count 1 was reasonably
foreseeable to the defendant and same was within the scope
of the defendant's agreement and understanding.
penalty for this offense is:
841(a)(1), (b)(1)(A) in a case involving 5 kilograms or more
of cocaine and/or 50 grams or more of cocaine base, and one
prior felony drug conviction - a minimum term of imprisonment
of 20 years and a maximum term of life imprisonment, no
probation, no parole, a fine of $8, 000, 000 and a term of
supervised release of at least ten (10) years in addition to
any term of imprisonment, plus a special assessment of $100.
196 at 1-2.
Rule 11 hearing, the ...