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, 5 Kilograms
or More of Cocaine, and 1 Kilogram or More of Heroin, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. 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 ¶¶ 100, 104.
His Guidelines range at sentencing was 292- 365 months
(37/IV), followed by 10 years of supervised
release. PSR ¶¶ 101, 107. The Court
granted the Government's motion for a downward departure
and departed four levels to a Guidelines range of 188-235
months (33/IV), and ultimately imposed a sentence of 192
months incarceration, followed by a 10-year term of
supervised release. ECF No. 140. The Court later granted an
additional three-level reduction pursuant to Rule 35(b) and
reduced his sentence to 150 months imprisonment. ECF No. 193.
The Court later granted a further reduction to 140 months
imprisonment pursuant to Guidelines Amendment 782. ECF No.
was released from custody on December 4, 2015 to begin
serving his 10-year term of supervised release. On December
19, 2017, his supervised release was revoked, and he was
sentenced to 36 months imprisonment with no supervised
release to follow. ECF No. 289.
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.”
The Court concludes that Defendant is not eligible for relief
because he was charged with and pled guilty to the §
841(b)(1)(A) threshold amounts of crack, cocaine, and heroin,
and the Fair Sentencing Act did not reduce the statutory
penalties applicable to either cocaine or heroin. Thus, his
statutory sentencing range would have been the same if the
Fair Sentencing Act had been in place when he committed the
offense of conviction.
§ 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.” Even if Defendant were eligible for a
sentence reduction, the Court would exercise its discretion
to not reduce his sentence for several reasons, including (1)
he was held accountable at sentencing for a crack weight
(12.6 kilograms) that would have easily supported a charge to
the current threshold amount (280 grams); (2) he has two
juvenile adjudications for burglary, a juvenile adjudication
for possession with intent to distribute marijuana, an adult
conviction for simple assault, and an adult conviction for
possession with intent to distribute crack; and (3) his
revocation judgment was based on multiple violations,
including possession with intent to distribute cocaine,
possession of marijuana, and use of cocaine. For these
reasons, even if he were eligible for a sentence reduction
under the First Step Act, the Court would decline to reduce
these reasons, Defendant's motion, ECF No. 310, is
IS SO ORDERED.
 The PSR reflects a Guidelines range of
360 months to Life based on a total offense level of 39 and a
criminal history category of IV, but after the Court
sustained his objection to the two-level role adjustment, his
range was reduced to 292-365 months. ECF No. 141.
 The fact that Defendant is currently
serving a revocation sentence does not make him ineligible
for a sentence reduction under the First Step Act. United
States v. Venable, 943 F.3d 187, 194 (4th Cir. 2019)
(“[G]iven that [the defendant's] revocation
sentence is part of the penalty for his initial offense, he
is still serving his sentence for a ‘covered
offense' for purposes of the First Step Act. Thus, the
district court had the authority to consider his motion for a
sentence reduction, just as if he were still serving the
original custodial sentence.”). But here, unlike in
Venable, the statutory penalties applicable to
Defendant's offense of conviction were not modified by
the Fair Sentencing Act.
 Defendant was also held accountable
for 72 kilograms of heroin. PSR ...