United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND JUDGMENT ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is defendant's motion to reduce his
sentence based upon the First Step Act of 2018. (ECF No.
125). On December 21, 2018, the First Step Act was signed
into law. See Pub. L. No. 115-391, 132 Stat. 5194
(2018). The First Step Act applies the relief provided in the
Fair Sentencing Act of 2010, which reduced the disparity in
the treatment of crack and powder cocaine offenses,
retroactively to eligible defendants. Under the First Step
Act, “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.”
Id. at § 404(b).
eligible for a reduced sentence under the First Step Act, a
defendant's sentence must not have been previously
imposed or reduced in accordance with Sections 2 and 3 of the
Fair Sentencing Act. Id. at § 404(c). In
addition, a sentence may not be reduced if the defendant has
made a previous motion for a reduction under the First Step
Act that was denied on the merits. Id. Furthermore,
a court is not required to reduce a sentence under
the First Step Act. Id.
August 27, 2007, defendant pled guilty to an amended
information charging him with possession with intent to
distribute 5 grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B).
This offense triggered a five-year mandatory minimum sentence
with a maximum sentence of 40 years. Defendant's
guidelines were calculated to be within a range of 188 to 235
months and he was sentenced to a term of imprisonment of 192
months. Defendant's projected release date is August 16,
parties agree, defendant's offense of conviction is a
“covered offense” because it was committed before
August 3, 2010 and the applicable penalties were modified by
section 2 of the Fair Sentencing Act which increased the drug
quantities necessary to trigger mandatory minimum sentences
under 21 U.S.C. § 841(b)(1). Specifically, the threshold
requirement to trigger the mandatory minimum sentence of five
years under 21 U.S.C. § 841(b)(1)(A) was increased from
5 grams to 28 grams. Furthermore, defendant's sentence
was not previously imposed or reduced in accordance with the
First Step Act nor has he made another motion for a sentence
reduction under the Act. Retroactive application of the First
Step Act in defendant's case yields a statutory maximum
sentence of twenty years and a guideline range of 151 to 188
court has considered the record in this case, including the
original Presentence Investigation Report (PSI), original
Judgment and Commitment Order and Statement of Reasons, a
memorandum received from the Probation Office, and any
materials submitted by the parties on this issue. The court
has also considered the applicable factors under 18 U.S.C.
United States has indicated that it does not object to a
reduction in the defendant's sentence that is within the
revised guidelines range or a reduction in his term of
supervised release to three years.
First Step Act does not provide specific guidance as to how
reductions should be implemented which has led to a
difference of opinion on the proper procedure to be utilized.
Although the parties agree on the ultimate result (which is
probably all that matters to the defendant), they disagree on
several matters relating to motions filed pursuant to the
Act. Congress has not provided much of a roadmap for
implementing the Act. See ESP Insider Express (U.S.
Sentencing Comm'n Office of Education & Sentencing
Practice, Feb. 2019) (stating that “[c]ourts will have
to decide” certain issues concerning the effect of the
First Step Act). Hence, the parties are at loggerheads in
The Government and the Probation Office believe that the
proper statutory vehicle for implementing the Act is 18
U.S.C. § 3582(c)(2), which provides that the court may
reduce the term of incarceration of a “defendant who
has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o).”
The defendant disagrees, and argues that the relevant statute
is 18 U.S.C. § 3582(c)(1)(B), which provides that
“the court may modify an imposed term of imprisonment
to the extent otherwise expressly permitted by statute or by
Rule 35 of the Federal Rules of Criminal Procedure.”
The practical effect of choosing one or the other subsection
would be to determine the extent to which this Court can
modify defendant's sentence: specifically, whether the
Court should simply recalculate the defendant's Guideline
sentence, or in effect wipe the slate clean and conduct an
entirely new sentencing.
In addition, the defendant asserts that because, in his view,
he is entitled to a plenary resentencing proceeding, the
defendant has a right to be present. The Government and the
Probation Office disagree with that assertion. Since
defendant has executed a waiver of his presence for this
proceeding, the Court need not decide that issue.
Finally, the defendant seeks a specific “new”
sentence of 123 months. The Government and the Probation
Office contend that a sentence of “time served”
is all that is required.
District courts across the country have been dealing with
these issues, in the wake of the enactment of these statutes.
United States v. Sampson, 360 F.Supp.3d 168, 170
(W.D.N.Y. 2019). Of the proper vehicle for implementing the
Act, the court finds persuasive the reasoning of a recent
opinion for the United States District ...