United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR REDUCTION
OF SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018
H. WHALEY, SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion for Reduction or
Modification of Sentence Pursuant to . . . the First Step
Act. ECF No. 167. The Court has considered
Defendant's motion, the Government's response,
Defendant's reply, and the earlier filings in the case.
Being fully informed, the Court finds that Defendant's
motion should be GRANTED and his sentence
should be reduced to a term of time served.
1986, Congress enacted the Anti-Drug Abuse Act, which set
harsh mandatory minimum sentences for offenses involving
cocaine base, i.e., crack cocaine. See Pub.
L. No. 99-570, 100 Stat. 3207 (1986). For offenses involving
the manufacturing or distribution of five grams or more of
crack cocaine, the Act established a mandatory minimum of
five years' imprisonment and a maximum of 40 years.
Id. § 1002. If a person had a prior felony drug
conviction, the minimum increased to 10 years and the maximum
to life. Id. For offenses involving the
manufacturing or distribution of 50 grams or more of crack
cocaine, the Act established a mandatory minimum of 10
years' imprisonment and a maximum of life. Id.
If a person had a prior felony drug conviction, the minimum
sentence increased to 20 years. Id.
2005, the Government charged Defendant with two counts of
Distribution of 5 Grams or More of a Mixture or Substance
Containing Cocaine Base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii), three counts of
Distribution of 50 Grams or More of a Mixture or Substance
Containing Cocaine Base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(iii), and one count of
Possession of Cocaine Base with Intent to Distribute, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). ECF
No. 41 (Superseding Indictment). The Government also filed an
information under 21 U.S.C. § 851 to establish
Defendant's prior state drug conviction for conspiracy to
deliver a controlled substance. ECF No. 25.
case proceeded to trial and Defendant presented an entrapment
defense. ECF No. 75 at 20-22; No. 115 at 60-61. Defendant
testified and admitted that he distributed crack cocaine as
alleged in the indictment. ECF No. 114 at 76-87. He then
testified to facts related to his entrapment defense. ECF No.
114 at 65-66, 71, 79, 81, 86-87
jury found Defendant guilty of the two charged counts of
distributing 5 or more grams of crack cocaine, the three
charged counts of distributing 50 or more grams of crack
cocaine, and an additional count of the lesser included
offense of simple possession of crack cocaine. ECF No. 79.
Prior to sentencing, the U.S. Probation Office prepared a
presentence report finding that Defendant's offenses
involved 214.3 net grams of crack cocaine. PSR ¶¶
21, 30. The presentence report also concluded that Defendant
met the criteria for “career offender” status
under U.S.S.G. § 4B1.1 based on his prior state
convictions for conspiracy to deliver a controlled substance
and attempted second degree assault. PSR ¶ 38.
2005, the Court sentenced Defendant. ECF No. 94. The Court
agreed with the presentence report that Defendant qualified
as a career offender based on his prior state offenses.
See ECF No. 96 at 2-5; No. 116 at 25. Because the
statutory maximum for Defendant's convictions was life
imprisonment, Defendant's status as a career offender
resulted in an offense level of 37 and a criminal history
category of VI. ECF No. 116 at 25; see U.S.S.G.
§ 4B1.1(b)(A). However, the Court also found that
Defendant was eligible for a three-point reduction based on
his acceptance of responsibility as well as a four-point
downward departure to account for the unwarranted sentencing
disparity between crack and powder cocaine. ECF No. 96 at
5-10; No. 116 at 25. With an adjusted offense level of 30 and
a criminal history category of VI, the Court concluded that
Defendant's advisory guideline range was 168 - 210
months' imprisonment. ECF No. 96 at 10-11.
this guideline range, 21 U.S.C. § 841 set a mandatory
minimum of 10 years' imprisonment for anyone convicted of
manufacturing or distributing 50 grams or more of crack
cocaine. 21 U.S.C. 841(b)(1)(A) (2005). And because the
Government had filed an information establishing his prior
state felony drug conviction for conspiracy to deliver a
controlled substance, he was subject to a 20-year mandatory
minimum. See id.; ECF No. 96 at 12.
by the statute, the Court sentenced Defendant to the
mandatory minimum of 240 months' imprisonment. ECF No. 96
at 2, 11; see Dorsey v. United States, 567 U.S. 260,
266-67 (2012) (“[N]o matter what range the Guidelines
set forth, a sentencing judge must sentence an offender to at
least the minimum prison term set forth in a statutory
mandatory minimum.”). However, the Court emphasized
that this sentence was more than necessary to address
Defendant's culpability and the sentencing factors
articulated in 18 U.S.C. § 3553. ECF No. 96 at 11; No.
116 at 26. The Court noted that if it had discretion to
sentence Defendant to a term of imprisonment less than 240
months, it would have done so. ECF No. 96 at 2, No. 116 at
2010, Congress enacted the Fair Sentencing Act, which reduced
the disparity between the amounts of crack and powder cocaine
needed to trigger the mandatory minimum penalties in 21
U.S.C. § 841. Fair Sentencing Act, Pub. L. No. 111-220,
124 Stat. 2372; Dorsey, 567 U.S. at 264. To trigger
the five-year mandatory minimum (or 10 year, with a prior
drug felony) under 21 U.S.C. § 841(b)(1)(B), the law
increased the amount of required crack cocaine involved from
5 grams to 28 grams. See 124 Stat. 2372, §
2(a)(2). To trigger the 10-year mandatory minimum (or 20
year, with a prior drug felony) under 21 U.S.C. §
841(b)(1)(A), the law increased the amount of required crack
cocaine involved from 50 grams to 280 grams. See 124
Stat. 2372, § 2(a)(1). However, the Fair Sentencing Act
was not retroactive. United States v. Baptist, 646
F.3d 1225, 1225 (9th Cir. 2011). Therefore, it did not apply
to individuals like Defendant, who had been sentenced to
statutorily mandated terms of imprisonment prior to its
enactment. Id. at 1229.
December 2018, Congress enacted the First Step Act. Pub. L.
No. 115-391, S. 756, 115th Cong. (2018) (enacted but not yet
codified). One of the Act's provisions authorized
district courts to resentence defendants based on the Fair
Sentencing Act's revised statutory penalties for offenses
involving crack cocaine. See First Step Act §
404(b); United States v. Powell, 360 F.Supp.3d 134,
138 (N.D.N.Y. 2019). In other words, it made the Fair
Sentencing Act retroactive. Shortly after its enactment,
Defendant moved to reduce his then-statutorily required
sentence of 240 months' imprisonment. ECF No. 167.
eligible for sentence reductions under the First Step Act are
those who: (1) were convicted of a crack cocaine offense, (2)
were sentenced when the pre-Fair Sentencing Act statutory
penalties were still in effect, and (3) continue to serve a
sentence that has not already been reduced to post-Fair
Sentencing Act levels. First Step Act § 404(a). Courts
retain discretion to deny motions of otherwise eligible
offenders, and the First Step Act does not “require a
court to reduce any sentence.” First Step Act §
the parties agree that Defendant is eligible for a reduced
sentence under the First Step Act. See ECF No. 172
at 6-7; No. 173 at 1. They disagree, however, about the
extent to which the Court is authorized to modify
Defendant's previously-imposed sentence. Defendant
contends he is eligible for a plenary, de novo resentencing.
ECF No. 173 at 1-2. In contrast, the Government argues that
the scope of the sentence reduction proceeding authorized by
the Act is tightly circumscribed. Id. at 4-5, 7-8.
The First Step Act does not Authorize Plenary
contends the Court is authorized to conduct a plenary, de
novo resentencing in which it may revisit determinations made
at the original sentencing hearing in light of current law.
ECF No. 173 at 1-2. Specifically, Defendant asks the Court to
readdress its prior determination that he is a career
offender. Id. at 1-2, 10. He argues that if he were
convicted today, he would not be classified as a career
offender because his state convictions could not be
considered qualifying predicate convictions under U.S.S.G.
§ 4B1.2. Id. at 10. The Government does not
dispute that, were he sentenced today, Defendant would not
qualify as a career offender. See ECF No. 172.
However, it argues the First Step Act only allows a limited