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. His statutory sentencing range was 10 years to Life,
followed by at least 5 years of supervised release. PSR
¶¶ 76, 80. His Guidelines range at sentencing-after
taking into account his classification as a career
offender-was 262-327 months (34/VI), followed by 5 years of
supervised release. PSR ¶¶ 77, 83. The Court
imposed a 290-month term of imprisonment, followed by a
5-year term of supervised release. ECF No. 65.
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 states that “there is an argument that
Defendant is not eligible for relief under the First Step
Act” because the crack weight for which he was held
accountable at sentencing-485.93 grams-exceeds the current
§ 841(b)(1)(A)(iii) threshold of 280 grams. ECF No. 90
at 4. 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.
Defendant's motion, he requests a full resentencing
hearing. See ECF No. 88 at 12. The Government argues
that he is not entitled to a full resentencing. See
ECF No. 90 at 5-7.
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.
See ECF No. 90 at 5. 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 (485.93 grams) that would have supported a
charge to the current threshold amount (280 grams); (2) he
remains a career offender; (3) he has a prior conviction for
accessory after the fact of assault and battery with intent
to kill for shooting another individual; and (4) he has prior
drug distribution convictions, specifically possession with
intent to distribute cocaine, distribution of cocaine within
proximity of a school, and distribution of cocaine, all of
which resulted in 8-year sentences. For these reasons, the
Court declines to reduce his sentence, and his motion, ECF
No. 88, is therefore DENIED.
IS SO ORDERED.
 In light of this ruling, the Court
terminates as MOOT the remaining outstanding
motion in this ...