United States District Court, S.D. Florida
ORDER DENYING MOTION FOR APPLICATION OF THE FIRST
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon the Defendant Stanley
Bolden's (“Defendant”) Motion for Appointed
Counsel and Application of the First Step Act, ECF No. 
(“Motion”), filed on January 3, 2019. On January
15, 2019, the Court Ordered the Federal Public Defender's
Office to advise the Court whether it takes a position on the
Motion and the potential representation of the Defendant.
See ECF No. . The Federal Public Defender filed
a Response to the Court's Order, requesting that the
Court appoint the Federal Public Defender to represent
Defendant and amend Defendant's pro se motion with the
arguments set forth in the Response. ECF No. 
(“Motion to Appoint Counsel”). On January 25,
2019, the Court granted Defendant's Motion to Appoint
Counsel and permitted the incorporation of the positions set
forth in the Response. See ECF No. .
Thereafter, the United States of America
(“Government”) filed a Response to
Defendant's Motion, ECF No. , and Defendant filed a
Reply, ECF No. . The Court has carefully reviewed the
Motion, the record, all supporting and opposing filings, and
is otherwise fully advised. For the reasons set forth below,
the Motion is denied.
federal grand jury returned an Indictment charging Defendant
with one count of conspiracy to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1), 21
U.S.C. § 841(b)(1)(B), and 21 U.S.C. § 846, and
four counts of distribution of a controlled substance in
violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. §
841(b)(1)(B), and 18 U.S.C. § 2. ECF No. . Count One
of the Indictment alleged that Defendant conspired to
distribute five grams or more of cocaine base and also
charged that the drug quantity exceeded 35 grams. Counts Two
through Five each charged Defendant with the distribution of
at least five grams of cocaine base. In addition, according
to the Presentence Investigation Report (“PSI”),
Defendant was held responsible for 35.922 grams of cocaine
base. PSI ¶¶ 12, 13, 19.
February 7, 2006, Defendant entered a guilty plea to the
charges in the Indictment. See Stanley Bolden v. United
States, 07-cv-80353-KLR, ECF No. [7-1] at 13. On April
20, 2006, Defendant was sentenced to 292 months imprisonment
as to each count to be served concurrently and 8 years of
supervised release. ECF No. . In the instant Motion,
Defendant contends that he is eligible for a sentencing
reduction under the First Step Act of 2018 (“First Step
Fair Sentencing Act was passed to reduce the disparity in
treatment of cocaine base and powder cocaine offenses.
See Dell v. United States, 710 F.3d 1267, 1271 (11th
Cir. 2013) (acknowledging disparity). But the Fair Sentencing
Act was not made retroactively applicable until passage of
the First Step Act. Section 404(b) of the First Step Act
expressly permits the Court to “impose a reduced
sentence as if sections 2 or 3 of the Fair Sentencing Act . .
. was in effect at the time the covered offense was
committed.” Pub. L. No. 115-391, 132 Stat. 5194. Thus,
the changes in the statutory penalties under 21 U.S.C. §
841(b)(1)(A) and (B) apply retroactively to a sentence
rendered prior to the effective date of the Fair Sentencing
Act-August 3, 2010.
authority of a district court to modify an imprisonment
sentence is narrowly limited by statute.” United
States v. Phillips, 597 F.3d 1190, 1194 (11th Cir.
2010). The First Step Act was passed into law on December 21,
2018, but the Act does not cite 18 U.S.C. § 3582(c).
However, § 3582(c) provides the procedural vehicle
through which this Court may modify Defendant's sentence.
See United States v. Maiello, 805 F.3d 992, 999-1000
(11th Cir. 2015) (stating that a court may modify a final
sentence only when one of the limited exceptions in §
3582(c) applies). One such narrow exception to the general
prohibition against modifying a previously-imposed sentence
is found at 18 U.S.C. § 3582(c)(1)(B), which provides
that “the court may modify an imposed term of
imprisonment to the extent otherwise expressly permitted by
statute or by Rule 35 of the Federal Rules of Criminal
only portion of the First Step Act that expressly permits a
Court to reduce a previously-imposed sentence is Section 404,
which allows (but does not require) courts to retroactively
apply certain portions of the Fair Sentencing Act regarding
the statutory penalties for offenses involving cocaine base.
Relevant here, the Fair Sentencing Act raised from 5 grams to
28 grams the amount of cocaine base needed to trigger the
(b)(1)(B) statutory range of five years to forty years in
Defendant argues that his sentence would have been different
if the Fair Sentencing Act had been in effect at the time the
offense was committed. He argues that the factual proffer on
which his guilty plea was based only established an amount in
excess of 20 grams - not an amount in excess of 28 grams.
Defendant contends that it would violate the Constitution to
determine Defendant's statutory range based on the amount
listed in the PSI. Defendant relies on the Supreme Court case
Apprendi v. New Jersey, 530 U.S. 466 (2000) and its
progeny, which stand for the proposition that a fact that
increases the punishment above what is otherwise legally
prescribed must be submitted to the jury. See ECF
No.  at 3 (citing Apprendi; Alleyne v.
United States, 570 U.S. 99 (2013); Burrage v. United
States, 571 U.S. 204 (2014)). Defendant's position
is that his “statutory range cannot be increased based
on a judge-found drug quantity that was not proven beyond a
reasonable doubt or admitted during [his] guilty plea.”
Id. at 4. The Court disagrees.
sentence would not have been impacted if Section 2 of the
Fair Sentencing Act had been in effect at the time of
Defendant's sentencing because the Indictment charged
that Count One involved more than 30 grams of cocaine base
and Defendant pled guilty to the indictment as a whole.
Moreover, Defendant did not object to the statement in the
PSI that he was responsible for 35.922 grams of cocaine base.
Because the amount of cocaine base charged in Count I of the
Indictment - to which Defendant pled guilty - and the amount
set forth in the PSI are greater than 28 grams, the statutory
maximum provided for in Section 841(b)(1)(B) would still have
applied. Thus, Defendant's reliance on Apprendi
and its progeny is misplaced. The Eleventh Circuit has
indicated that “when a defendant pleads guilty and
accepts the drug quantity determination contained in the
pre-sentence report or agrees to drug quantity at sentencing
or in his plea colloquy, he waives any right to appeal his
sentence on the basis of Apprendi, regardless of
what sentence is ultimately imposed.” United States
v. Giraldo, 132 Fed.Appx. 800, 804 (11th Cir. 2005)
(citing United States v. Sanchez, 269 F.3d 1250,
1271 n.40 (11th Cir. 2001)); see also United States v.
Walker, 228 F.3d 1276, 1278 n.1 (11th Cir. 2000)
(distinguishing Apprendi on the basis that defendant
pled guilty and accepted the contents of the PSI). Here,
Defendant was charged and pled guilty to conspiracy to
distribute more than 30 grams of cocaine base and he did not
object to the amount of cocaine base listed in the PSI.
Accordingly, under Eleventh Circuit precedent,
Apprendi is inapplicable.
Defendant also argues that the First Step Act does not
prevent the Court from providing relief even if a
person's guidelines remain unchanged. By its plain
language, Section 404 of the First Step Act authorizes
district courts to reduce the sentence of a defendant
“as if sections 2 and 3 of the Fair Sentencing Act of
2010 . . . were in effect at the time the covered offense was
committed.” First Step Act, § 404(b). If sections
2 and 3 of the Fair Sentencing Act were in effect at the time
Defendant committed the covered offense, there would be no
reduction in Defendant's sentence. Defendant still would
have been subject to a sentencing enhancement pursuant to 21
U.S.C. § 841(b)(1)(B) and §851. As such, he would
have faced the same guideline range of 292-365 months
imprisonment and would have received the same sentence of 292
it is ORDERED AND ADJUDGED that
Defendant's Motion, ECF No. , is