United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
case comes before the court on Defendant's pro se Motion
for Relief Under the First Step Act of 2018. ECF No. 190. The
United States Probation Office filed a Sentence Reduction
Report (“SRR”) indicating Defendant did not
qualify for relief under the Act. ECF No. 193. Thereafter,
Defendant filed “objections to the SRR” (ECF No.
201) and a pro se Reply (ECF No. 205). The Government then
filed a Response in opposition (ECF No. 208) and a
Supplemental Response (ECF No. 209). The Probation Office has
now filed an Amended SRR indicating Defendant appears to be
eligible for consideration of a reduced sentence as his
conviction on Count 2 is for a “covered offense”
under the Act. ECF No. 210.
court has reviewed the above filings as well as the Second
Superseding Indictment, the Plea Agreement, the Transcript of
Rule 11 hearing (ECF No. 83) and PreSentence Report
(“PSR”) (ECF No. 193-1), and agrees that Count 2
is a “covered offense” under the First Step Act.
entered into a Plea Agreement to plead guilty to Counts 1 and
2 of the Second Superseding Indictment, which charged (1)
conspiracy to possess with intent to distribute and to
distribute 5 kilograms or more of cocaine and 50 grams or
more of cocaine base, also known as“crack”
cocaine, and (2) possession with intent to distribute and
distribution of 50 grams or more of cocaine base. ECF No. 83
at 39, 63-64.
Rule 11 hearing, the court advised Defendant:
Now, in order for the government to prove the two charges
there, count 1 and count 2, they would have to be able to
prove what are called elements of each offense, and they
would have to prove each of these elements beyond a
reasonable doubt. …
Now, first of all the conspiracy charge, which is count 1,
they would have to prove that this conspiracy that is
described in count 1was willfully formed and was existing at
or about the dates in the indictment, and that the purpose of
this conspiracy was to possess with intent to distribute and
to distribute drugs, that is of two kinds, powder cocaine and
crack cocaine. That at some point during the existence of
this conspiracy you knew, you yourself knew of the purpose of
this agreement and you deliberately joined in. And then they
would have to prove that at some point during the time of
that conspiracy, that the amount of five kilograms or more of
cocaine was intended to be or was in fact possessed with the
intent to distribute, and that the amount of 50 grams or more
of cocaine base was possessed or possessed with intent to
Now, the second charge is the actual charge of a distribution
that occurred on August the 7th of 1998, and to prove that
charge they would have to prove three essential elements.
First of all, that on or about that date you knowingly and
intentionally possessed and distributed the crack cocaine
described in Count 2; secondly, that at the time of that
distribution you knew that what you were distributing was a
controlled substance, that is an illegal drug; and third,
that you distributed this controlled substance yourself with
the intention that it be distributed or passed to another
person, whether for money or without money. And because of
the amount alleged here they would have to prove that that
was 50 grams or more of cocaine base, that is, crack cocaine.
So that's what they would have to prove in order to be
entitled to a verdict at trial, they would have to prove all
of those things beyond a reasonable doubt as to Count1 and
Count 2. Do you understand that? The Defendant: Yes,
Id. at 64-65.
Government summarized the evidence against Defendant,
explaining Defendant supplied various individuals with powder
cocaine. Defendant was identified by informants who recorded
conversations with Defendant regarding purchasing and
distributing drugs, and the Government made several
controlled purchases from Defendant via informants.
Id. at 67-68.
the court inquired of Defendant as follows:
The court: Let me ask it this way, do you admit that you sold
two ounces of crack to ...