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United States v. Miles

United States District Court, D. South Carolina, Columbia Division

August 26, 2019

United States of America,
v.
David Keith Miles, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge||||

         This 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).

         The 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' supervised release.

         Background

         Defendant 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.

         The 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.

         Analysis

         It is 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.”

         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, 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.

         Applying the rule of lenity[1], 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' supervised release.

         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.

         There 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.

         The 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.

         Section 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 ...


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