United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge.
matter is before the Court on Defendant's motion for a
sentence reduction pursuant to the First Step Act of 2018,
passed by Congress and signed into law by the President on
December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194. This
law contains sentencing provisions that apply retroactively
to certain defendants previously sentenced.
pled guilty to a charge of Conspiracy to Possess With Intent
to Distribute 50 Grams or More of Cocaine Base, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
After taking into account the § 851 Information that the
Government previously filed, his statutory sentencing range
was 20 years to Life, followed by at least 10 years of
supervised release. PSR ¶¶ 73, 77. His Guidelines
range at sentencing-after taking into account his
classification as a career offender-was 262-327 months
(34/VI), followed by 10 years of supervised release. PSR
¶¶ 74, 80. After granting the Government's
motion for a downward departure pursuant to § 5K1.1 and
departing three levels, his reduced Guidelines range became
188-235 months (31/VI). The Court imposed a 192-month term of
imprisonment, followed by a 10-year term of supervised
release. ECF No. 202.
404(b) of the First Step Act provides that “[a] court
that imposed a sentence for a covered offense may . . .
impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 . . . were in effect at the time the
covered offense was committed.” Section 404(a) defines
“covered offense” as “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.”
As noted above, Count 1 charged him with violating 21 U.S.C.
§ 841(b)(1)(A)(iii). Section 2(a) of the Fair Sentencing
Act modified the statutory penalties set forth in §
841(b)(1)(A)(iii) by increasing the threshold amounts of
crack from 50 grams to 280 grams.
Government takes the position that Defendant is not eligible
for relief under the First Step Act because the crack weight
for which he was held accountable at sentencing-366.1
grams-exceeds the current § 841(b)(1)(A)(iii) threshold
of 280 grams. The Government asserts that if the Fair
Sentencing Act had been in effect when he committed the
offense of conviction, the Government would have charged the
current § 841(b)(1)(A)(iii) threshold amount.
See ECF No. 578 at 4-5. The Fourth Circuit has
recently considered the question of when a defendant is
eligible for relief under the First Step Act, ultimately
holding that “any inmate serving a sentence for
pre-August 3, 2010 violations of 21 U.S.C. §
841(b)(1)(A)(iii) or (B)(iii)-both of which were modified by
Section 2 of the Fair Sentencing Act-is serving ‘a
sentence for a covered offense' and may seek a sentence
reduction under the First Step Act.” United States
v. Wirsing, ___ F.3d ___, ___, 2019 WL 6139017, at *8
(4th Cir. Nov. 20, 2019) (citations omitted). Because
Defendant is serving a sentence for a pre-August 3, 2010
violation of § 841(b)(1)(A)(iii), he is eligible for a
sentence reduction under § 404(b) of the First Step Act
and 18 U.S.C. § 3582(c)(1)(B).
Defendant's motion, he requests a full resentencing
hearing. See ECF No. 576 at 1. The Government argues
that he is not entitled to a full resentencing. See
ECF No. 491 at 6-8.
Currie has recently considered this question and concluded
that a First Step Act defendant is not entitled to a full
resentencing. United States v. Shelton, No. 3:07-329
(CMC), 2019 WL 1598921, at *2-3 (D.S.C. Apr. 15, 2019). The
Court notes Judge Currie's thorough, well-reasoned
opinion and adopts her analysis of the applicable law in this
case. Thus, the Court concludes that although Defendant is
eligible for a sentence reduction, he is not entitled to a
full resentencing. See also Wirsing, ___ F.3d at ___
n.1, 2019 WL 6139017, at *5 n.1 (“Defendant does not
contest that his relief, if any, will be in the form of a
limited sentence modification rather than a plenary
light of the First Step Act and as set forth in the Sentence
Reduction Report, the Court concludes that Defendant is now
subject to a reduced statutory sentencing range. As to Count
1, the custody term has been reduced from 20 years-to-Life to
10 years-to-Life, and the supervised release term has been
reduced from at least 10 years to at least 8 years.
See 21 U.S.C. § 841(b)(1)(B)(iii) (setting
forth the current penalties for a defendant who is convicted
of possessing with intent to distribute at least 28 grams but
less than 280 grams of crack). But while his statutory
penalties have changed, he remains a career offender pursuant
to Beckles v. United States, 137 S.Ct. 886, 895
(2017), and his post-departure Guidelines range remains
Defendant is eligible for a sentence reduction, a reduction
is not automatic. Section 404(c) of the First Step Act
explicitly provides that “[n]othing in this section
shall be construed to require a court to reduce any sentence
pursuant to this section.” The Government argues that
even if the Court concludes that he is eligible for relief,
the Court should exercise its discretion to not reduce his
sentence because the Government would have charged him with
the current threshold amount if the Fair Sentencing Act had
been in place when he committed the offense of conviction.
See ECF No. 578 at 5-6. Notably, Wirsing
did not address whether that particular defendant's
sentence should have been reduced, only that he was eligible
for consideration. See Wirsing, ___ F.3d at ___,
2019 WL 6139017, at *9.
considering whether to reduce Defendant's sentence, the
Court has carefully reviewed the Presentence Investigation
Report and Sentence Reduction Report, and has considered the
current statutory range, the Guidelines range, the §
3553(a) factors, and evidence of post-sentencing mitigation.
Pursuant to the First Step Act, Defendant's motion, ECF
No. 576, is GRANTED. Defendant is now
sentenced to a term of imprisonment of 188 months or time
served, whichever is greater. Upon his release from
incarceration, he must serve a term of supervised release of
8 years. An amended judgment will follow. This order is not
effective until the tenth day following its
IS SO ORDERED.
Dated: December 14, 2019