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.
was convicted at trial of two counts: Possession With Intent
to Distribute and to Distribute 5 Grams or More of Cocaine
Base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii) (Count 1); and Possessing a Firearm in
Furtherance of a Drug Trafficking Crime, in violation of 18
U.S.C. § 924(c) (Count 3). After taking into account the
§ 851 Information that the Government previously filed,
his statutory sentencing ranges were 10 years-to-Life,
followed by at least 8 years of supervised release (Count 1);
and 5 years-to-Life consecutive, followed by up to 5 years of
supervised release (Count 3). PSR ¶¶ 99, 105.
sentencing, Defendant was held accountable for 97.39 grams of
crack. PSR ¶ 27. He was classified as a career offender
based on multiple prior drug convictions. PSR ¶¶
36, 42, 46, 51, 67. His Guidelines range-after taking into
account his career offender designation and his § 924(c)
conviction-was 322-387 months, followed by 8 years of
supervised release. PSR ¶¶ 71, 100. The Court
granted the Government's motion for a downward departure
and departed six levels to a Guidelines range of 168-210
months (30/VI),  and ultimately imposed a sentence of 192
months incarceration (132 months on Count 1 and 60 months
consecutive on Count 3), followed by an 8-year term of
supervised release (8 years on Count 1 and 5 years concurrent
on Count 3). ECF No. 108. The Court later granted an
additional two-level reduction (140-175 months (28/VI))
pursuant to the Government's Rule 35(b) motion and
reduced his sentence to 160 months incarceration (100 months
on Count 1 and 60 months consecutive on Count 3). ECF No.
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)(B)(iii). Section 2(a) of the Fair Sentencing
Act modified the statutory penalties set forth in §
841(b)(1)(B)(iii) by increasing the threshold amounts of
crack from 5 grams to 28 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-97.39
grams-exceeds the current § 841(b)(1)(B)(iii) threshold
of 28 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)(B)(iii) threshold amount.
See ECF No. 253 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, 943 F.3d 175, 185 (4th Cir. 2019) (citations
omitted). Because Defendant is serving a sentence for a
pre-August 3, 2010 violation of § 841(b)(1)(B)(iii), he
is eligible for a sentence reduction under § 404(b) of
the First Step Act.
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. 253 at 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, 943 F.3d at 186.
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.
In light of these considerations, the Court concludes that a
sentence reduction is not appropriate in this case. There are
several reasons why the Court has reached this conclusion,
including (1) he was held accountable at sentencing for a
crack weight (97.39 grams) that would have supported a charge
to the current threshold amount (28 grams); (2) he has a
lengthy, serious criminal history, including convictions for
housebreaking, robbery, pointing a firearm, criminal domestic
violence, assault, drug possession, and drug distribution;
(3) he remains a career offender; and (4) he would still be a
career offender under current law. For these reasons, the
Court declines to reduce his sentence, and his motion, ECF
No. 251, is therefore DENIED.
IS SO ORDERED.
 His initial Guidelines range of
322-387 under § 4B1.1(c)(2)(A) roughly corresponded to a
Guidelines range on the sentencing table of ...