United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
This
case comes before the court on Defendant's Motion for
Relief Under First Step Act of 2018. ECF No. 1722. The United
States Probation Office filed a Sentence Reduction Report
(“SRR”) indicating Count 13 was a covered
offense, but noting Defendant did not appear to qualify for a
reduced sentence on Count 1, a cocaine and cocaine base
conspiracy count. ECF No. 1721. The Government filed a
response in opposition (ECF No. 1724), and Defendant filed a
reply (ECF No. 1725). Thereafter, the court directed the
Government to address whether Defendant's conviction on
Count 13 should impact the court's decision. The
Government then filed a Supplemental Response (ECF No. 1729),
and Defendant filed a Reply to that (ECF No. 1730).
ANALYSIS
The
court finds Defendant's statutory range on Count 13 is
changed by the First Step Act and is no longer five to 40
years' imprisonment and at least four years'
supervised release, but is now zero to 20 years'
imprisonment and at least three years' supervised
release. Therefore, because the statute of conviction on
Count 13 is one for which the statutory penalties were
modified by section 2 of the Fair Sentencing Act, it is a
“covered offense.”
However,
Defendant's conviction on Count 1, for which he is
serving 210 months concurrent with 210 months on Count 13, is
not a covered offense. Defendant pled guilty in Count 1 to
Conspiracy to Possess with intent to Distribute and to
Distribute 5 grams or more of cocaine base and 500 grams or
more of cocaine.
Under
the First Step Act, the court may impose a reduced sentence
only if it previously imposed a sentence for a “covered
offense” - i.e., a “violation of a federal
criminal statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act of
2010, . . . that was committed before August 3, 2010.”
Because sections 2 and 3 of the Fair Sentencing Act have no
effect on the statutory penalty for Defendant's offense
of conspiring to possess with intent to distribute both 500
grams or more of cocaine and 5 grams or more of cocaine base,
a violation of 21 U.S.C. §§ 846, 841 (b)(1)(A),
Count 1 is not a covered offense eligible for First Step Act
relief.[1] Section 2 of the Fair Sentencing Act
amended the threshold cocaine base amounts triggering
§§841(b)(1)(A) and (B)'s penalties, amending
§ 841(b)(1)(A)(iii) “by striking '50
grams' and inserting ‘280 grams, '” and
amending § 841(b)(1)(B)(iii) “by striking ‘5
grams' and inserting '28 grams.”” Fair
Sentencing Act, § 2, Pub. L. No. 111-220, 124 Stat.
2372. Section 3 of the Fair Sentencing Act eliminated the
mandatory minimum sentence for simple possession. Fair
Sentencing Act, § 3, Pub. L. No. 111-220, 124 Stat.
2372. Neither section altered the statutory penalties for
offenses involving powder cocaine.
Both
before and after the effective date of sections 2 and 3 of
the Fair Sentencing Act, the statutory penalty for
Defendant's offense of conviction in Count 1 is five to
40 years imprisonment pursuant to 21 U.S.C. §§ 846
and 841(b)(1)(B). Regardless of whether Defendant's
cocaine base amount no longer triggers his original statutory
penalty range, 500 grams or more of powder cocaine
does.[2] The statutory penalty for conspiracy to
distribute 500 grams or more of cocaine remains five to 40
years.
The
Government now concedes Count 13 is a covered offense under
the First Step Act and the statutory penalty is now zero to
20 years' imprisonment and at least three years'
supervised release. This affects the guideline range for
Count 13, reducing it from 262-327 months to 210-240 months.
The
Government further concedes the court has the discretion to
impose a reduced sentence that has the effect of reducing
Defendant's sentence on a non-covered offense, such as
Count 1.[3] However, the Government opposes such a
reduction based upon Defendant's criminal history, career
offender status, PSR drug weights of over 28 kilograms of
cocaine, and disciplinary record in the Bureau of Prisons
(“BOP”).
Defendant
has submitted his BOP records and letters of support from
family members. BOP records reflect four disciplinary
infractions in just over ten years, three of which were 300
level offenses and one of which was a 100 level
offense.[4] Defendant has obtained his GED and
completed 23 education courses. He has earned average work
evaluations during his period of incarceration. Defendant has
a supportive family and daughters who are accomplished
students.
The
court has considered the new statutory range on Count 13, the
advisory guideline range, the 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
188 months on Counts 13 and 1, concurrent. Supervised release
shall be four years on Count 1 and three years on Count 13,
concurrent. This reduced sentence is sufficient, but not
greater than necessary, to achieve the purposes of
sentencing. The court finds that a time served sentence is
not warranted given the seriousness of the offense conduct,
Defendant's criminal history, and Defendant's BOP
disciplinary record.
IT IS
SO ORDERED.
---------