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. The Government filed a § 851 Information listing
convictions, but at sentencing and pursuant to the
parties' plea agreement, the Government withdrew all but
one. Sent. Tr. 31:20-24 This made his statutory sentencing
range 20 years to Life, followed by at least 10 years of
supervised release. PSR ¶¶ 99, 104; Sent Tr.
33:18-24. His Guidelines range at sentencing-after taking
into account the applicable mandatory minimum-was 240 months,
followed by 10 years of supervised release. PSR ¶¶
100, 107; Sent Tr. 33:15-20. The Court imposed a 240-month
sentence, followed by a 10-year term of supervised release.
ECF No. 346.
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 21 U.S.C.
§ 841(b)(1)(A)(iii) by increasing the threshold amounts
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-625.25
grams-exceeds the current § 841(b)(1)(A)(iii) threshold
of 280 grams. See ECF No. 649 at 4-5. The issue of
the applicable crack weight will be discussed in detail
below, but regardless of that issue, the Fourth Circuit has
recently made it clear that eligibility for a First Step Act
reduction depends on the statute of conviction, not the drug
weight established at sentencing. In United States v.
Wirsing, the Fourth Circuit 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.” 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). In light of the First
Step Act, his reduced statutory sentencing range is 10 years
to Life, followed by at least 8 years of supervised release.
See 21 U.S.C. § 841(b)(1)(B)(iii) (setting
forth the current penalties for a defendant who is convicted
of possessing with intent to distribute at least 28 grams but
less than 280 grams of crack).
Defendant's motion, he implicitly requests a full
resentencing hearing because he disputes the continued
validity of his § 851 enhancement. See ECF No.
647 at 3-4. The Government argues that he is not entitled to
a full resentencing. See ECF No. 649 at 7-9.
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.”
Government argues that, even if the Court concludes that
Defendant is eligible for a sentence reduction, the Court
should exercise its discretion to deny a reduction, primarily
because his crack weight exceeds the current 280-gram
threshold. See ECF No. 649 at 6-7. Though the Court
has found this position persuasive in other First Step Act
cases, the circumstances of this case dictate otherwise.
transcript of the original sentencing in this case shows that
there was a significant dispute about the drug amounts
assigned to Defendant for sentencing purposes. As will be
discussed, at the time of his original sentencing, the drug
weight argument was irrelevant, but the First Step Act makes
that argument relevant to the question of whether a sentence
reduction is warranted. A full resentencing hearing would not
change the analysis here as the transcript of the original
sentencing clearly shows that Defendant challenged the drug
weight assigned to him.
held Defendant accountable for 625.25 grams of crack. PSR
¶ 36. Prior to sentencing, defense counsel filed
numerous objections to that drug weight. See PSR
Addendum. Out of all the paragraphs in the PSR that put drug
weight on Defendant, the only ones he did not object to were
Paragraphs 17, 30, 31, 32, 33, 34, 35. The drug weights from
those paragraphs add up to 114.44 grams of crack, which is
below the 280-gram threshold.
sentencing, defense counsel said that he wanted to withdraw
the objections, but when the Court asked Defendant if that
was what he wanted to do, he indicated that he wanted to
proceed with the objections to challenge the drug weight
assigned to him. See Sent. Tr. 2:13-3:16.
Ultimately, after much discussion between the Court, the
AUSA, defense counsel, and Defendant, the Court did not rule
on the objections. His sentence was controlled by his
admission-both at the plea hearing and then reiterated at
sentencing-that he conspired to distribute at least 50 grams
of crack, which brought into play the 20-year mandatory
minimum. Regardless of the outcome of his drug weight
objections, that mandatory 20-year statutory sentence trumped
the otherwise-applicable Guidelines range. See Sent.
time, more than a decade after Defendant's sentencing
hearing, it is not possible to determine whether he would
have prevailed on his objections had the Court ruled on them.
But in light of the transcript of the sentencing, his crack
weight was between 114.44 grams and 625.25 grams. Because the
crack weight on the low end of that range is below the
280-gram threshold made applicable by the Fair Sentencing Act
and the First Step Act, an outright denial of a sentence
reduction is not warranted in this case.
Sentence Reduction Report uses the 625.25-gram crack weight
to calculate a total offense level of 29, which is based on a
base offense level of 30,  a two-level enhancement for possession
of a firearm, and a three-level reduction for acceptance of
responsibility. When combined with his criminal history
category of IV, Probation calculated his post-First Step Act
Guidelines range at 121 to 151 months. Recalculating the
Guidelines under the 114.44-gram crack weight results in a
total offense level of 25, which is based on a base offense
level of 26,  a two-level enhancement for possession of
a firearm, and a three-level reduction for acceptance of
responsibility. Combined with his ...