United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion for Reduction of
Sentence pursuant to the First Step Act of 2018.
Eligibility Mem., ECF No. 65. For the reasons set
forth below, the Court GRANTS the motion.
October 5, 1998, Defendant was arrested and found in
possession of fifty grams of cocaine base, or
“crack.” Id. at 5. Eleven months
later-on November 3, 1999-a grand jury returned a
single-count indictment charging Defendant with possession
with the intent to distribute a quantity of crack in
violation of 21 U.S.C. § 841(a)(1). Resp., ECF
No. 70, at 1. Defendant subsequently entered into a plea
agreement with the government and pleaded guilty to the
charge. Eligibility Mem., ECF No. 65, at 2.
upon “a May 1, 1986 conviction for Attempted Second
Degree Burglary in Brooklyn, New York . . . and on a January
24, 1992 conviction for possession with intent to deliver in
Baltimore, Maryland, ” Defendant was “determined
to be a career offender under U.S.S.G. §
4B1.1(A).” Id. Under section 4B1.1(A),
Defendant's base offense level was calculated at
thirty-seven. Id. Unfortunately for Defendant, his
conduct-based offense level was one point higher than that
provided by the career offender enhancement; as over 1.5
kilograms of crack were attributed to him for sentencing
purposes, his base offense level was calculated at
thirty-eight. Resp., at 2. With a two-level
enhancement for possession of a firearm and a four-level
enhancement for an aggravating role, his offense level
increased to forty-four. Id. After a three-level
decrease for acceptance of responsibility, Defendant's
total offense level landed at forty-one. Id. With a
criminal history category of VI, the sentencing court
determined the mandatory “guideline range to
be 360 months to life.” Id.
12, 2000, Defendant was sentenced to the Guideline minimum of
360 months imprisonment and five years supervised release.
Id. Since then, he has received no reductions in his
sentence. Id. He has adjusted relatively well to
federal custody; while he has accumulated several sanctions,
he has also completed two drug programs and is enrolled in
classes to obtain his GED. Probation Mem., at 4. He is
projected to be released on July 4, 2026. Eligibility
Mem., at 3.
court imposes a sentence of imprisonment, it is considered
the final judgment on the matter and the court, as a general
prohibition, “may not modify a term of imprisonment
once it has been imposed.” 18 U.S.C. §§
3582(b) & 3582(c)(1)(B). However, a court can modify a
sentence where it is “expressly permitted by
statute.” 18 U.S.C. § 3582(c)(1)(B).
First Step Act of 2018 states, in relevant part, 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.” Pub. L. No.
115- 391, 132 Stat. 5194, § 404(b) (2018) (hereinafter
“The First Step Act”). Section Two of
the Fair Sentencing Act increased the quantity of cocaine
base, or “crack, ” which triggers a mandatory
minimum penalty. Pub. L. No. 111-220, §2, 124 Stat. 2372
(2010). Section Three eliminated the statutory minimum
sentence for simple possession of crack. Id. at
eligible for a reduction in sentence, a defendant's
sentence must not have been imposed or previously reduced
under sections two or three of the Fair Sentencing Act of
2010.Id. at § 404(c). Nor can a
defendant have been previously denied a reduction under
§ 404 of the First Step Act. Id. While a
defendant, the Government, or the Court can move for a
reduced sentence, individuals are not entitled to a reduction
as courts are not required to grant relief under § 404.
Id. The First Step Act therefore represents a broad
grant of authority to the federal courts.
in this district and throughout the Fourth Circuit agree that
the proper mechanism to seek relief under the First Step Act
is 18 U.S.C. § 3582(c)(1)(b). United States v.
Banks, No. 1:07-00157, 2019 WL 2221620, at *4 (S.D.
W.Va. May 22, 2019) (Faber, J.) (citing United States v.
Shelton, No. 3:07-329, 2019 WL 1598921, at *3 (D.S.C.
April 15, 2019) (listing cases)). As such, the language of
First Step Act controls the Court's ability to grant
relief. See Wright v. United States, Nos. 4:95-39,
4:95-44, 2019 WL 3046096, at *4 (E.D. Va. July 11, 2019).
Under § 3582(c)(1)(B), a court can choose to conduct a
simple mechanical reduction of a sentence based on a
decreased exposure to statutory minimums and the correlating
lower guideline range.
courts are not limited by § 3582(c)(1)(B). The First
Step Act allows a court to “impose a reduced
sentence” if an individual is eligible. The First
Step Act, § 404(b). Reading the word
“impose” consistently within the United States
Code reveals that this equates to the announcement of a
convicted person's sentence. See 18 U.S.C.
§§ 3553(a) and 3582(a). Therefore, the First Step
Act grants courts statutory authority to conduct a full
resentencing, in addition to the discretion to decide when
doing so is appropriate. See Wright, 2019 WL
3046096, at *4. Whether or not a court decides to resentence
a defendant, the language of the First Step Act does not
require a hearing. See Id. at *5. It is within the
sound judgment of the Court to determine if an evidentiary or
sentencing hearing is necessary to address the issues of a
considering the statutory authority under the First Step Act,
federal courts presume Congress acts in the context of
relevant case law. Abuelhawa v. United States, 556
U.S. 816, 821 (2009) (citing Williams v. Taylor, 529
U.S. 362, 380-81, n.12 (2000). The Fair Sentencing Act, and
its application through the First Step Act, is administered
in light of the Supreme Court's decision in United
States v. Booker, which held that mandatory guideline
ranges are unconstitutional. 543 U.S. 220, 244-45 (2005).
While Booker is not retroactively applied on a
collateral attack, a court may now vary outside of the
guideline range if it chooses to conduct a full resentencing.
United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005). This includes variances based on policy disagreements
with the Sentencing Guidelines. See Kimbrough v.
U.S., 552 U.S. 85 (2007).
defendant is determined to be eligible, the Court must
examine the statutory threshold to which that defendant
pleaded and compare it to the alteration of the applicable
law. The Court recognizes that the drug quantity listed in an
indictment traditionally tracks the statutory minimums to
ensure a defendant's plea or conviction complies with the
Sixth Amendment. It is not illogical to speculate that had
the Fair Sentencing Act been enacted at the time of a
defendant's plea, the elevated statutory amounts would be
listed in the indictment and may have had little to no impact
on the defendant's decision to plea. See U.S. v.
Blocker, No. 4:07-36-RH, 2019 WL 2051957, at *4 (N.D.
Fla. Apr. 25, 2019) (explaining
“offense-controls” theories, and adopting the
latter). Yet to assume such a fact impermissibly alters the
indictment and unconstitutionally abridges a defendant's
Sixth Amendment rights. See Alleyne v. United
States, 570 U.S. 99 (2013). In the context of First Step
Act cases, this is true whether a court is conducting a full
resentencing or not. See, e.g., United
States v. Smith, 379 F.Supp.3d 543, 546-47 (W.D. Va. May
13, 2019). Due to the constitutional ...