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), 841(b)(1)(A)(iii), 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 ¶¶ 132, 138. His
Guidelines range at sentencing-after taking into account the
20-year mandatory minimum- was 240-293 months (35/IV),
followed by 10 years of supervised release. PSR ¶¶
133, 141. The Court imposed a 240-month term of imprisonment,
followed by a 10-year term of supervised release. ECF No.
114. On January 23, 2017, the President commuted
Defendant's sentence to 168 months imprisonment. ECF No.
202. BOP records reflect that he was released from custody on
September 20, 2019.
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(a)(1), 841(b)(1)(A)(iii), and 846. Section
2(a) of the Fair Sentencing Act modified the statutory
penalties set forth in 21 U.S.C. § 841(b)(1)(A)(iii) by
increasing the threshold amount of crack from 50 grams to 280
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-16.7
kilograms-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. 230 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)(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 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. 230 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 (16.7 kilograms) that would have supported a
charge to the current threshold amount (280 grams); (2) he
has multiple prior drug convictions; and (3) he has a prior
conviction for possessing a sawed-off shotgun. For these
reasons, the Court declines to reduce his sentence, and his
motion, ECF No. 218, is therefore DENIED.
IS SO ORDERED.
 At sentencing, the Government withdrew
all but one of the § 851 enhancements, which resulted in
these statutory ...