United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Demond Andre Jackson's
Motion for Reduction of Sentence under the First Step Act of
2018. Mot. for Reduction of Sentence, ECF No. 523.
The issues in this case have been fully briefed, and
Defendant's motion is ripe for review. For the reasons
set forth below, the Court GRANTS IN PART
and DENIES IN PART the motion.
June 28, 1999, Defendant pleaded guilty to three counts of a
thirteen-count superseding indictment. Resp., ECF
No. 526, at 1-2. Count One charged Defendant with conspiracy
to distribute cocaine and cocaine base, or “crack,
” in violation of 21 U.S.C. § 846, while Counts
Nine and Twelve charged Defendant with possession of a
firearm during a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1)(A). See Superseding
Indictment, ECF No. 96. Count One carried a statutory
sentencing range of ten years to life imprisonment, while
Counts Nine and Twelve carried consecutive five- and
twenty-five-year mandatory minimum terms of imprisonment. A
total of 1.5 kilograms of crack and two kilograms of powder
cocaine were attributed to Defendant for sentencing purposes.
See Sentencing Tr., ECF No. 288, at 8-13. With a
criminal history score of twelve, Defendant fell into
criminal history category V. Resp., at 2. Together
with a total offense level of thirty-seven, the Court
determined that Defendant's then-mandatory guideline
range was 324 to 405 months imprisonment. Id.
February 15, 2000, the Court sentenced Defendant to 324
months imprisonment on Count One, to be followed
consecutively by sixty months imprisonment on Count Nine and
300 months imprisonment on Count Twelve. Id. The
court also imposed a mandatory minimum five-year term of
supervised release on Count One and three-year terms of
supervised release on Counts Nine and Twelve,  set to run
concurrently after completion of Defendant's 684-month
incarceration. Id. On September 12, 2008, the Court
reduced Defendant's sentence to 262 months on Count One
pursuant to the Sentencing Commission's amendment of
§ 1B1.10 of the Guidelines to make the 2007 crack
amendment retroactive. Probation Mem., at 3. This
reduction did not impact either term of imprisonment for
Defendant's § 924(c)(1)(A) convictions, however.
date, Defendant has served approximately 239 months in
prison. Id. at 5. Despite the dizzying length of his
sentence, his institutional adjustment has been relatively
smooth; over the course of nearly twenty years, he has
accumulated no more than ten sanctions. Id. He
obtained his high school equivalency diploma in August 2001,
and completed the drug education program in May 2009.
Id. In addition to completing “numerous”
other educational courses, he has worked in the laundry since
November 2018. Id. Notwithstanding these positive
developments, Defendant is not even near the midway point of
his fifty-seven year sentence.
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.
proper mechanism to seek relief under the First Step Act is
18 U.S.C. § 3582(c)(1)(b). United States v.
Wirsing, No. 19-6381, 2019 WL 6139017, at *8 (4th Cir.
Nov. 20, 2019) (published). As such, the language of First
Step Act controls the Court's ability to grant relief.
See Wright v. United States, 393 F.Supp.3d 432, 441
(E.D. Va. 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, 393 F.Supp.3d
at 441. 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 441. 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. United
States, 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 United
States 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 ...