United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, Senior United States District Judge.
case comes before the court on Defendant's Motions for
Relief under the First Step Act of 2018. ECF Nos. 393,
The United States Probation Office has filed a Sentence
Reduction Report (“SRR”), indicating Defendant is
eligible for relief as his statutory penalty changed, but the
retroactive application of the Fair Sentencing Act had no
impact on the guideline range. ECF No. 394. Defendant's
statutory sentencing range has changed from 20 years to Life
to 10 years to Life, and his supervised release exposure is
eight years instead of 10 years. Defendant's advisory
guideline range is 188-235 months. The Government agrees
Defendant is eligible for relief on his term of supervised
release, but requests the court deny a reduction in sentence
because his guideline range did not change due to his career
offender status. ECF No. 404.
court will consider the new statutory range, the advisory
guideline range, factors in 18 U.S.C. § 3553(a), and any
evidence of post-sentencing behavior and mitigation in
deciding whether to impose a reduced sentence of
incarceration. Therefore, the parties shall file, on or
before November 20, 2019, any further submissions relevant to
was charged in a Superseding Indictment with the following
counts: 1) conspiracy to possess with intent to distribute
and to distribute 50 grams or more of cocaine base and 500
grams or more of cocaine; and 3 counts of possession with
intent to distribute and distribution of 5 grams or more of
cocaine base (Counts 7, 11, and 12). ECF No. 45. The
Government filed an Information under 21 U.S.C. § 851
noting Defendant had four prior felony drug convictions,
subjecting him to a mandatory Life Sentence. ECF No. 25. On
September 8, 2008, he entered a guilty plea pursuant to a
Plea Agreement to Count 1, conspiracy to possess with intent
to distribute 500 grams or more of cocaine and 50 grams or
more of cocaine base, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846. ECF No. 90. The Plea Agreement
included a stipulation by Defendant that he had three prior
felony drug convictions which were noticed pursuant to §
851 and which subjected him to a term of Life imprisonment.
ECF No. 90 at ¶ 12. The parties agreed that if Defendant
provided substantial assistance to the Government, two
enhancements would be withdrawn “therefore subjecting
him to a mandatory minimum term of imprisonment of 20 years
on Count 1.” Id.
took place on February 12, 2009. ECF No. 134. Defendant was
sentenced to 262 months imprisonment and 10 years'
supervised release. ECF No. 135. An Amended Judgment was
issued on January 9, 2012, reducing Defendant's sentence
to 188 months pursuant to Rule 35(b). ECF Nos. 235, 236. He
has been in custody since May 1, 2008.
motion, Defendant argues he is eligible for a reduction in
sentence because his statutory penalty on Count 1 is reduced
from 20 years to Life imprisonment to 10 years to Life, and
his term of supervised release has been reduced from 10 years
to eight. ECF No. 399. Defendant requests his sentence be
reduced to time served, and has attached documentation
regarding his programming while incarcerated. Id.
Government argues Defendant does not qualify for a reduced
sentence of imprisonment but does qualify for a reduced term
of supervised release. ECF No. 404. It notes the maximum
statutory penalty faced by Defendant has not changed, as he
still faces up to Life imprisonment. Id. at 1. The
Government also submits Defendant remains a career offender
with the same guideline range regardless of the statutory
changes in cocaine base sentencing. Id. at 2.
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, as
Defendant pled guilty to 50 grams of cocaine base, an amount
that corresponded to a penalty under § 841(b)(1)(A) at
sentencing, but now falls into §841(b)(1)(B), the
conviction meets the “covered offense”
requirement of the First Step Act. Although Defendant pled
guilty to a count involving both cocaine base and cocaine,
the threshold quantities of 50 grams of cocaine base and 500
grams of cocaine result in a reduction in the mandatory
minimum sentence for the cocaine base amount under the First
Step Act, such that penalties for both substances now fall
into the §841(b)(1)(B) penalty.
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 10 years to Life under 21 U.S.C. §§
841(b)(1)(B) and 851. Defendant would have been subject to
eight years supervised release.
faces a statutory range of 10 years to Life and a supervised
release term of eight years. His current advisory guideline
range is 188-235 months. His current sentence is 188 months.
Prior to determining whether to impose a reduced sentence,
the court will consider the new statutory range, the advisory
guideline range, the 18 U.S.C. § 3553(a) factors, and
any evidence of post-sentencing behavior and/or ...