United States District Court, M.D. Florida, Orlando Division
ANTOON II STATES DISTRICT JUDGE
Shawntavis Green is currently serving a 46-month prison
sentence for violating the terms of his supervised release.
The Court has reviewed Green's pro se Motion for
Retroactive Resentencing pursuant to the First Step Act of
2018 (Doc. 113) and his counseled Motion to Reduce Sentence
pursuant to the First Step Act of 2018 (Doc. 123).
Additionally, the Court has reviewed and considered the 18
U.S.C. § 3553(a) factors, the Probation Office's
First Step Act of 2018 Memorandum (Doc. 117)-which includes
the Presentence Investigation Report-the Government's
Response (Doc. 128), the specifics of Green's supervised
release violations, and pertinent law. For the reasons set
forth below, Green's motions are denied.
2006, Green pleaded guilty to a class A felony violation of
21 U.S.C. § 841(b)(1)(A)(iii), which relates to
possession and distribution of crack cocaine. (Doc. 123 at 1;
Doc. 128 at 2). Green was sentenced to 140 months in prison
with 60 months of supervised release to follow. (Doc. 123 at
1). Pursuant to U.S.S.G. Amendment 706, Green's sentence
was reduced to 120 months in 2008. (Id.) In 2014,
Green was released from prison and his term of supervised
release began, (kl at 2). After Green committed several
violations of supervised release-including engaging in
domestic violence and testing positive for
methamphetamine-his supervised release was revoked in 2018
and he was sentenced to 46 months' imprisonment with no
supervised release to follow. (Id. at 12). Green
then filed the motions at issue.
relevant part, the Fair Sentencing Act of 2010 increased the
amount of cocaine base required for an offense to qualify as
a class A felony under § 841(b)(1)(A)(iii). See
United States v. Johnson, 702 Fed.Appx. 815, 817 (11th
Cir. 2017) (citing Fair Sentencing Act of 2010, PL 111-220,
Aug. 3, 2010). The First Step Act of 2018 made this section
of the Fair Sentencing Act of 2010 retroactive,
"permitting] courts to '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.'" United States v. Plumley, No.
5:05-cr-00224-01, 2019 U.S. Dist. LEXIS 101361, at *1-2 (S.D.
W.Va. June 18, 2019) (quoting First Step Act of 2018, PL
115-391, Dec. 21, 2018, 132 Stat. 5194). A "covered
offense" is defined as "a violation of a Federal
criminal statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act of 2010
... that was committed before August 3, 2010." First
Step Act of 2018 § 404(a).
original offense-a violation of § 841
(b)(1)(A)(iii)-clearly falls within the scope of the First
Step Act. Thus, his initial prison sentence would be eligible
for reduction consideration if Green had not already
completed that term of imprisonment. However, it is not clear
whether the First Step Act's "covered offense"
language was intended to allow for a reduction of a
post-revocation sentence, and district courts are divided on
the question. But it is not necessary for this Court to
weigh in on the "covered offense" issue. The
application of the First Step Act is discretionary, and even
assuming it does apply, this Court declines to exercise its
discretion to reduce Green's sentence imposed for
violation of supervised release.
First Step Act does not "require a court to reduce any
sentence." First Step Act § 404(c). As the
Government points out in its Response (Doc. 128) and as the
Court reasoned at Green's sentencing (Tr., Doc.103),
Green's post-conviction conduct demonstrates a disrespect
for the trust this Court put in him and raises serious
concerns regarding recidivism and the safety of those around
him. See United States v. Hoover, No. 3:08-cr-00123,
Doc. 314 at 5 (D. Alaska May 21, 2019) ("[T]he
revocation sentence was imposed on the primary basis of his
'breach of trust,' and, in light of the record, the
Court declines to reduce [the defendant's]
post-revocation sentence."); see also Plumley,
2019 U.S. Dist. LEXIS 101361, at *4 ("The revocation
sentence was imposed not because of now-altered statutory and
policy views regarding crack cocaine, but because of [the
defendant's] repeated violations of the terms of
supervised release."). As such, this Court declines to
reduce Green's revocation sentence.
Green's pro se requests for plenary resentencing and a
hearing are denied. "Nowhere does the [First Step Act]
expressly permit the type of plenary resentencing or
sentencing anew that [the defendant] advocates. And because
First Step Act sentence modifications fall under 18 U.S.C.
§ 3582(c), [the defendant's] presence is not
required." United States v. Davis, No.
07-CR-245S, 2019 U.S. Dist. LEXIS 36348, at *4-5 (W.D.N.Y.
Mar. 6, 2019) (citing Fed. R. Crim. P. 43(b)(4)); United
States v. Delaney, No. 6:08-cr-00012, 2019 U.S. Dist.
LEXIS 28792, at *1 (W.D. Va. Feb. 22, 2019); United
States v. Fountain, No. 1:09-cr-00013-MR-WCM-9, 2019
U.S. Dist. LEXIS 23911, at *2 (W.D. N.C. Feb. 14, 2019);
United States v. Copple, No. 17-cr-40011-JPG-009,
2019 U.S. Dist. LEXIS 20130, at *1 (S.D. III. Feb. 7, 2019)).
Green's pro se Motion for Retroactive Resentencing
pursuant to the First Step Act of 2018 (Doc. 113) and his
counseled Motion to Reduce Sentence pursuant to the First
Step Act of 2018 (Doc. 123) are both DENIED.