United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER ON MOTION FOR REDUCTION
L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's Motion For
Imposition Of A Reduced Sentence (ECF No. 222) filed by
Attorney Matthew Campbell of the Federal Defenders of Eastern
Washington. The Government is represented by Russell Smoot,
Assistant United States Attorney. The Motion (ECF 222) is
Denied in part and Granted in part as provided herein.
October 19, 2004, a grand jury returned a three-count
Indictment against Defendant: (1) conspiracy to distribute 5
or more grams of a mixture or substance containing cocaine
base under 21 U.S.C. §§ 841(a)(1) and 846; and (2)
and (3) distribution of 5 grams or more of a mixture or
substance containing cocaine base under 21 U.S.C. §
841(a)(1). (ECF No. 1). On November 16, 2004, the grand jury
returned a four-count Superseding Indictment against
Defendant with an additional count: (4) possession with
intent to distribute 5 grams or more of a mixture or a
substance containing cocaine base under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). (ECF No. 21-3). On
January 19, 2005, the United States Attorney filed an
Information to establish Defendant's two prior drug
convictions pursuant to 21 U.S.C. § 851. (ECF No. 47).
trial was held, and Count 1 was dismissed at trial. (ECF No.
148). The jury returned a verdict finding Plaintiff guilty of
Counts 2, 3, and 4. (ECF No. 117). Each verdict identified
the amount of the substances as “5 grams or
to 21 U.S.C. § 841(b)(1)(B) (2002), Defendant first
faced a statutory sentencing range of no less than ten years
to life on each of the convicted Counts. According to the
Presentence Investigation Report (PSR), Defendant was
responsible for 8.7 grams of cocaine base on Count 2, 9.3
grams of cocaine base on Count 3, and 28.1 grams of cocaine
base on Count 4. (ECF No. 221 at 4-5). Under the Sentencing
Guidelines (U.S.S.G.), that drug quantity resulted in a base
Offense Level of 30. (Id. at 7). Defendant received
a two point increase for possessing a weapon during the
offenses, for a total Offense Level of 32. (Id.).
Defendant's Criminal History computation established an
initial Criminal History Category of III. (Id. at
15). Based on this, Defendant's Guideline Sentencing
range would have been 151-188 months. U.S.S.G. Ch. 5, Pt. A.
(ECF No. 221 at 21).
Defendant had two prior felony drug convictions which made
him a Career Offender, his base Offense Level was 37 and his
Criminal History Category was increased to VI pursuant to
U.S.S.G. § 4B1.1(b). (ECF No. 221 at 7). The final
calculation by the United States Probation Office used by the
court was an Offense Level of 37 with a Criminal History
Category of VI. (Id. at 15). Defendant's
Guideline Sentencing range was 360 months to life. U.S.S.G.
Ch. 5, Pt. A. (ECF No. 221 at 21).
July 14, 2005 sentencing hearing, Defendant was sentenced to
240 months on all convicted Counts. (ECF Nos. 147, 148). In
the July 22, 2005 Sentencing Memorandum, the court discussed
the Sentencing Guideline range, the recommendation of the
Probation Officer in the PSR, the mandated minimum of ten
years pursuant to 21 U.S.C. § 841(b)(1)(B) (2002), and
the Section 3553(a) factors. (ECF No. 146).
appealed his judgment and sentence to the Ninth Circuit Court
of Appeals. (ECF No. 153). The Ninth Circuit affirmed the
judgment and sentence. (ECF No. 186). In 2008, Defendant
moved pro se to have his sentence modified based on
alleged ineffective assistance of counsel, a claimed
unconstitutionality of his sentence, and Amendment 706 of the
U.S.S.G. (ECF Nos. 188, 190, 193). His motions were Denied.
(ECF No. 200). In 2011, Defendant again moved pro se
to have his sentence modified based on Amendment 750 of the
U.S.S.G. (ECF No. 201). His motion was Denied. (ECF No. 208).
Defendant appealed the court's order denying modification
to the Ninth Circuit, (ECF N. 209), and the appellate court
dismissed the appeal for failure to prosecute, (ECF No. 217).
Both of Defendant's attempts to modify his sentence
following amendments to the guidelines were denied because
Defendant's increased sentence was premised on his status
as a career criminal and not the cocaine base sentencing
enhancements. (ECF Nos. 200, 208).
April 23, 2019, Defendant moved pro se for
appointment of counsel to file a motion to reduce his
sentence pursuant to the amendments to 21 U.S.C. § 841
made retroactive by the First Step Act. (ECF No. 218). On May
1, 2019, the Federal Defenders of the Eastern District of
Washington and Idaho filed a Motion for appointment of
counsel to prepare a motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c). (ECF No. 219). The
court Granted both Motions and appointed the Federal
Defenders of the Eastern District of Washington and Idaho to
represent Defendant in his Motion for a reduced sentence.
(ECF No. 220). On June 18, 2019, appointed counsel for
Defendant filed a Motion to Reduce Sentence (ECF No. 222).
The Government filed a Response (ECF No. 226), and Defendant
filed a Reply (ECF No. 227). Neither party requested a
hearing with oral argument be held in the matter (ECF Nos.
222, 226, 227), and the court deems such a hearing
case concerns the First Step Act in which Congress permitted
a sentencing court to “impose a reduced sentence as if
. . . the Fair Sentencing Act of 2010. . . were in effect at
the time the covered offense was committed.” This case
addresses two issues emerging from the application of the
First Step Act: (1) whether in applying the First Step Act
does the court consider the drug weight of conviction or the
drug weight identified in the PSR and (2) whether the First
Step Act authorizes or requires this court to conduct a
plenary resentencing, which would include recalculating the
Sentencing Guidelines Range as if the Defendant was being
sentenced for the first time under present law, or whether
the court is limited to reductions resulting from the Fair
Government argues in its brief that the First Step Act should
be applied to the drug weight identified in Defendant's
PSR and Defendant is not eligible for a sentence
modification. The Government also argues that in the event
Defendant is eligible for a sentence modification, the First
Step Act does not allow for a plenary resentencing,
Defendant's Career Offender Status remains unchanged, and
the court should exercise its discretion and decline to
modify the sentence (ECF No. 226).