United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District
case comes before the court on Defendant's Motion for
Relief under the First Step Act. ECF No. 4324. The United
States Probation Office filed a Sentence Reduction Report
(“SRR”) (ECF No. 4330), indicating Defendant is
eligible for relief as his statutory range has changed from
10 years to Life imprisonment to five to 40 years. See SRR at
2. The SRR further notes he is eligible for a reduction of
his term of supervised release. Id. The Government
has filed a Response in Opposition (ECF No. 4341), and
Defendant replied (ECF No. 4361).
court finds Defendant's statutory range is changed by the
First Step Act and is no longer 10 years to Life and five
years supervised release, but is now five to 40 years
imprisonment and 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 has considered the
new statutory range, the advisory guideline range, factors in
18 U.S.C. § 3553(a), and evidence of post-sentencing
behavior and mitigation and has decided to impose a reduced
sentence of 295 months incarceration and four years'
was charged with conspiracy to possess with intent to
distribute and distribution of 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. ECF
No. 871. Following a jury trial, he was found guilty. The
jury was instructed that Defendant could be convicted based
on proof of a conspiracy involving five kilograms or more of
cocaine or 50 grams or more of cocaine base. ECF No. 1323 at
34-35. The verdict, rendered on April 29, 2003, did not
require the jury to specify whether they found Defendant
guilty based on cocaine, cocaine base, or both. ECF No. 1355.
Government contends Defendant is not eligible for relief
because the majority of the evidence at trial concerned
Defendant's involvement in cocaine. Because the amounts
of cocaine testified to exceeded five kilograms, the
Government submits “the jury . . . clearly accepted
that [Defendant] was involved in the possession of 5
kilograms of cocaine or more.” ECF No. 4341 at 10.
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.”
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, if the
jury 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 for conspiracy involving 50
grams or more of cocaine base would have been five to 40
years under 21 U.S.C. §§ 841(b)(1)(B). Defendant
would have been subject to at least four years'
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 ...