United States District Court, N.D. West Virginia
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S AMENDED MOTION FOR RECONSIDERATION [DKT. NO.
311], DENYING AS MOOT HIS MOTION FOR RECONSIDERATION [DKT.
NO. 310], AND REDUCING DEFENDANT'S SENTENCE PURSUANT TO
THE FIRST STEP ACT
M. KEELEY, UNITED STATES DISTRICT JUDGE.
March 2, 2005, a grand jury sitting in the Northern District
of West Virginia returned a four-count indictment, charging
the defendant, George Martin (“Martin”), with one
count of conspiring to distribute cocaine base, in violation
of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846 (Count
One); two counts of aiding and abetting the distribution of
cocaine base, in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C) (Counts Two and
Three); and one count of distribution of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)
(Count Four) (Dkt. No. 1). On May 18, 2005, a grand jury
returned a superceding indictment, naming Martin in a fifth
count that charged use of a firearm in relation to a drug
trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A)(i) (Count Five) (Dkt. No. 22).
a trial on all five counts, a jury found Martin guilty of
Counts One, Two, Four, and Five (Dkt. No. 100). The Court
sentenced him to 210 months of incarceration on Counts One,
Two, and Four, to be served concurrently, and 60 months of
incarceration on Count Five, that sentence to be served
consecutively to his sentence on Counts One, Two, and Four,
for a total sentence of 270 months (Dkt. Nos. 106, 111). It
also sentenced Martin to a term of 5 years of supervised
released on each count, to be served concurrently.
Id. The parties appealed Martin's conviction and
sentence (Dkt. Nos. 107, 109), and Martin filed a pro se
motion for retroactive application of the sentencing
guidelines for crack cocaine (cocaine base) offenses (Dkt.
No. 139). The United States Court of Appeals for the Fourth
Circuit affirmed Martin's convictions on Counts One, Two,
and Four, vacated his conviction on Count Five, and remanded
the case for resentencing (Dkt. No. 132).
resentencing hearing on January 12, 2011, the Court
determined that Martin's relevant conduct was 11.23
kilograms of cocaine base, which resulted in a guideline
range of life in prison (Dkt. Nos. 193 at 2). It varied from
that guideline range, however, and sentenced Martin to 270
months of incarceration on Count One, and 240 months of
incarceration on Counts Two and Four, all to be served
concurrently, for a total sentence of 270 months (Dkt. Nos.
180, 187). It again imposed a term of supervised released of
five years on each count, to be served concurrently.
Id. Martin unsuccessfully appealed this new sentence
(Dkt. No. 182).
March 14, 2019, Martin filed a pro se motion for a sentence
reduction under the First Step Act of 2018 (Dkt. No. 28). The
Government responded on April 11, 2019 (Dkt. No. 304), but
Martin did not reply. Thereafter, on July 19, 2019, the Court
denied Martin's motion after determining that he had
previously been sentenced in accord with Sections 2 and 3 of
the Fair Sentencing Act of 2010 and, in any event, would
still have a guideline range of life in prison (Dkt. No. 306
August 12, 2019, Martin mailed his timely pro se notice of
appeal (Dkt. No. 314), which was processed and postmarked on
August 13, 2019 (Dkt. No. 314-2). Five days later, on August
17, 2019, his attorney sought reconsideration of the July 19,
2019 Memorandum Opinion and Order (Dkt. No. 310), and then
filed an amended motion for reconsideration the very next day
(Dkt. No. 311). On August 26, 2019, the Fourth Circuit opened
Martin's case on appeal (Dkt. No. 316).
August 30, 2019, Martin filed an unopposed motion in the
Fourth Circuit to suspend the briefing schedule on his appeal
and sought a limited remand to permit this Court to rule on
Martin's pending motions for reconsideration (No.
19-7220, Dkt. No. 6). On September 12, 2019, the Fourth
Circuit granted Martin's motion and remanded his case to
this Court for the limited purpose of addressing his amended
motion for reconsideration on the merits (Dkt. No. 320).
Jurisdiction in this Court is now clear, and the matter is
fully briefed and ripe for disposition.
Section 404 of the First Step Act, courts that have
“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 (Public Law 111-220; 124
Stat. 2372) were in effect at the time the covered offense
was committed.” Pub. L. No. 115-015, § 404, 132
Stat. 015, 015 (2018). “A ‘covered offense'
is defined 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.” United States v.
Delaney, No. 6:08-cr-00012, 2019 WL 861418, at *1 (W.D.
Va. Feb. 22, 2019) (citations omitted).
defendants are ineligible for a reduced sentence under the
[First Step Act] if their sentence ‘was previously
imposed or previously reduced in accordance with the
amendments made by sections 2 and 3 of the Fair Sentencing
Act of 2010.'” United States v. Evans,
No.1:08CR00024-001, 2019 WL 1199474, at *1 (W.D. Va. Mar. 14,
2019) (quoting § 404(c)).
determining if modification is appropriate, the Court will
first address whether a reduction is consistent with the
First Step Act, and will then ‘consider whether the
authorized reduction is warranted, either in whole or in
part, according to the facts set forth in §
3553(a).'” Delaney, 2019 WL ...