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 ¶¶ 142, 147.
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
¶¶ 143, 150; ECF No. 99. 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 204-month term of imprisonment, followed by a
10-year term of supervised release. ECF No. 98.
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 amount 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-between 1.5
and 4.5 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. 226 at 4-6. 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's motion, he requests a full resentencing
hearing in which he would seek to challenge the continued
validity of the § 851 enhancement and his career
offender designation. See ECF No. 224 at 1-2. The
Government argues that he is not entitled to a full
resentencing. See ECF No. 226 at 7-10.
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, 943 F.3d at 181
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 resentencing.”).
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.
The Government also points to his lengthy criminal history as
a basis to deny a sentence reduction. See ECF No.
226 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, 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 (1.5 to 4.5 kilograms) that would have supported
a charge to the current threshold amount (280 grams); (2) his
Guidelines range has not changed due to his career offender
designation; (3) he has two prior convictions for
burglarizing dwellings; (4) he has numerous prior drug
possession convictions; and (5) he would be in a criminal
history category VI even without the career offender
enhancement. For these reasons, the Court declines to
reduce his sentence, and his motion, ECF No. 224, is
IS SO ORDERED.
 The Government says in its response
that he would be in a criminal history category V without the
career offender designation. ECF No. 226 at 6. That is
incorrect because the PSR concluded that he had 13 criminal
history points, which put him ...