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.
The United States Probation Office filed an Amended Sentence
Reduction Report (“SRR”) (ECF No. 200),
indicating Defendant is eligible for relief as to Count 5,
conspiracy to distribute 5 grams or more of cocaine base, as
his statutory range has changed from 10 years to Life
imprisonment to not more than 30 years. See Amended SRR at 2.
The SRR further notes he is eligible for a reduction of
supervised release. Id. The Government agrees
Defendant is eligible for a reduction as if sections 2 and 3
of the Fair Sentencing Act of 2010 were in effect at the time
the covered offense was committed.
parties disagree, however, as to the applicable guideline
range. The Government asks the court issue an amended
judgment reducing Defendant's custodial sentence to no
less than 228 months followed by a term of supervised release
of five to six years, as reflected in the Amended SRR
(reflecting guideline range of 228-270 months). Defendant
argues he is no longer a career offender, and that his
guideline range is 195-228 months. He seeks a reduction to
170 months (110 months as to Count 5 plus 60 months as to
pled guilty to the lesser-included charge of conspiracy to
possess with intent to distribute 5 grams or more of cocaine
base (Count 5) and use, carry and possession of a firearm in
furtherance of a drug trafficking crime (Count 3). ECF Nos.
103 (Plea Agreement); 165 (Rule 11 Transcript). Defendant was
sentenced on April 22, 2008 to 270 months, consisting of 210
months as to Count 5 and 60 months as to Count 3, to run
consecutively. ECF No. 149. At sentencing, Defendant faced a
guideline range of 352-425 months consisting of a range of
292 to 365 months as to Count 5 (cocaine base) plus 60 months
as to Count 3 (924(c)). ECF No. 162 at 16. The court granted
a motion for sentence reduction, which resulted in the
guideline range for Count 5 dropping to 210 to 226 months.
Id. at 21.
the Court sentenced Defendant to 210 months on Count 5 and 60
months consecutive on Count 3. Id. Defendant is
currently serving this 270-month sentence and he has been in
continuous custody since May 4, 2007. ECF No. 194-1 at 2. He
has served approximately 147 months.
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 offense.”
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
for conspiracy to possess with intent to distribute 50 grams
or more of cocaine base would have been not more than 30
years under 21 U.S.C. § 841(b)(1)(B). Defendant would
have been subject to six years supervised release.
urges the court to grant a full resentencing, at which he may
argue he is no longer a career offender. The court disagrees
Defendant is entitled to a new sentencing hearing. 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. It contemplates a recalculation
of Defendant's guidelines under the Fair Sentencing Act
and a possible sentence reduction if warranted.
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., Davis, 2019 WL 1054554, at *2; 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 ...