United States District Court, D. South Carolina, Orangeburg Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
case comes before the court on Defendant’s pro se
Motion and counsel’s Supplemental Motion for Relief
Under First Step Act of 2018. ECF Nos. 398, 406. The United
States Probation Office filed a Sentence Reduction Report
indicating Defendant does not qualify for relief under the
Act. ECF No. 401. The Government filed a Response in
Opposition. ECF No. 407.
along with four others, was charged in a Superseding
Indictment (ECF No. 49) with conspiracy to possess with
intent to distribute 50 grams or more of cocaine base and
five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 846, 841(a)(1) and 841(b)(1)(A) (Count 1), and
felon in possession of a firearm (Count 7). Following a jury
trial, Defendant was found guilty as charged. A special
verdict form clearly showed Defendant was found guilty as to
conspiracy to possess with intent to distribute both five
kilograms or more of cocaine and conspiracy to possess with
intent to distribute 50 grams or more of cocaine base
a result, Defendant faced a mandatory minimum term of ten
years to Life imprisonment on Count 1 and 10 years on Count
7. Defendant was sentenced to Life imprisonment, primarily as
a result of the mandatory guideline range of Life based on a
murder cross reference. ECF Nos. 196, 199.
counsel cites a number of cases he contends support
eligibility for relief under the First Step Act. Two of the
cases do find eligibility. United States v. Medina, No.
3:05-cr-58, 2019 WL 3769598, at *2-4 (D. Conn. July 17,
2019); United States v. Opher, Crim. No. 00-323,
2019 WL 3297201, at *11-13 (D.N.J. July 23, 2019).
court disagrees with those decisions. Moreover, the Fourth
Circuit has affirmed this court’s decisions on this
issue in two unpublished opinions by six judges of the Fourth
Circuit. See n.4, infra. Because there appears to be a split
of authority, however, further explanation is provided.
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 five
kilograms or more of cocaine and 50 grams or more of cocaine
base, a violation of 21 U.S.C. § 846, Count 1 is not a
covered offense eligible for First Step Act relief. 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.
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 ten
years to Life imprisonment pursuant to 21 U.S.C. §
841(b)(1)(A). Regardless of whether Defendant’s cocaine
base amount no longer triggers his original statutory penalty
range, five kilograms or more of powder cocaine does. The
statutory penalty for conspiracy to possess with intent to
distribute five kilograms or more of cocaine remains ten
years to Life imprisonment.
in enacting § 404 of the First Step Act in 2018, was
concerned about a particular class of defendants –
those whose statutory penalties for cocaine base would have
been lower but for the fortuity they were sentenced before
August 3, 2010, and therefore could not take advantage of the
Fair Sentencing Act. See Dorsey v. United States, 567 U.S.
260, 264 (2012) (concluding the Fair Sentencing Act’s
more lenient penalty provisions apply to defendants sentenced
after August 3, 2010, whether or not their crimes were
committed before that date). Defendants sentenced today for
the same offense Defendant committed face the same statutory
penalty range Defendant faced. Granting Defendant a sentence
unavailable to defendants charged and sentenced today would
turn the First Step Act’s goal on its head.
court denies Defendant’s motion. The record reflects
Defendant was found guilty by special verdict of conspiracy
to possess with intent to distribute 50 grams or more of
cocaine base and conspiracy to possess with intent to
distribute five kilograms or more of cocaine. His
statutory penalty was not therefore controlled by his
conviction for conspiracy involving 50 grams or more of
cocaine base. Because he was also found guilty of conspiracy
to possess with intent to distribute five kilograms or more
of cocaine, his statutory penalty range was 10 years to Life,
independent of the penalty applicable to conspiracy to
possess with intent to distribute cocaine base. 
intent of the First Step Act’s cocaine base penalty
changes was to provide Fair Sentencing Act relief to those
whose statutory range was driven by cocaine base disparities
before the passage of the Fair Sentencing Act. Persons whose
statutory ranges were not affected by such disparities are
not eligible for relief. That is what happened here.
for reasons set forth above, Defendant’s Motions for
Relief Under First ...