United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's Motion to
Reduce Sentence Pursuant to the First Step Act of 2018 (Doc.
#65) filed on July 10, 2019. The United States' Response
(Doc. #67) in opposition was filed on July 24, 2019. For the
reasons set forth below, the motion is denied.
August 16, 2006, defendant Eddie Vernon Brown (defendant or
Brown) was charged in a two-count Indictment. (Doc. #15.)
Count One alleged that on August 3, 2006, Brown possessed
with intent to distribute “five (5) or more grams of a
mixture or substance containing a detectable quantity of
cocaine base, also known as crack cocaine. . . .”
Id. Count Two alleged that on the same day Brown
possessed with intent to distribute an unspecified amount of
“a mixture or substance containing a detectable
quantity of cocaine. . . .” (Id.)
course, Brown entered into a Plea Agreement (Doc. #30-2) in
which he agreed to plead guilty to Count One of the
Indictment. The Plea Agreement advised that there was a
mandatory term of imprisonment of 5 to 40 years, and that the
elements of the offense included that defendant possessed 5
or more grams of cocaine base, “crack cocaine.”
The agreed-upon facts included that on August 3, 2006, during
a planned drug sale, Brown threw two ounces of cocaine on the
ground and officers seized 214.7 grams of cocaine
hydrochloride and 44.6 grams of cocaine base, crack cocaine,
from defendant's vehicle. Defendant's guilty plea was
accepted. (Doc. #38.)
sentencing, defendant was found accountable for 44.6 grams of
crack cocaine. (Doc. #64, p. 12, ¶ 17.) Defendant was
also accountable for possession of 214.7 grams of cocaine
hydrochloride, but this had no impact on the base offense
level calculation. (Id., p. 11, ¶ 16.) Based on
the 44.6 grams of cocaine base, defendant's Base Offense
Level was 30. Id., pp. 11-12, ¶ 17.) Defendant
received a two-level adjustment for acceptance of
responsibility and an additional level because the government
agreed to file a motion for a downward adjustment. This
brought defendant's Total Offense Level down to a 27.
(Id., ¶¶ 23-25.).
however, was a career offender, which subjected him to certain
enhancements. With the career offender enhancement,
defendant's Total Offense Level became 34, U.S.
Sentencing Guidelines Manual § 4B1.1(b); with the three
level downward adjustment for acceptance of responsibility,
the resulting Enhanced Offense Level was a 31. (Id.,
pp. 12-13, ¶¶ 26-29.) Defendant's criminal
history would have been a Category IV, but as a career
offender was a Category VI. (Id., p. 19,
¶¶ 44-46.) Defendant's resulting range of
imprisonment was 188 months to 235 months of imprisonment.
(Id., p. 24, ¶ 69.) Defendant was sentenced to
188 months imprisonment, followed by four years of supervised
release. (Doc. #44.)
2010, Sections two and three of the Fair Sentencing Act of
2010 (FSA of 2010) lowered statutory penalties for certain
offenses involving crack cocaine by raising the triggering
amounts for enhanced penalties. FSA of 2010, Pub. L. No.
111-220, §§ 2-3, 124 Stat. 2372, 2372.
Specifically, the statute reduced the disparity between the
quantities of crack cocaine and cocaine required to trigger
the statutory penalties prescribed by 21 U.S.C. §§
841(b)(1) and 960(b). Id. § 2. Section 2 of the
Fair Sentencing Act changed the quantity of crack cocaine
necessary to trigger a 5-year mandatory minimum from 5 grams
to 28 grams. Id. § 2(a)(1)-(2).
2014, defendant filed a motion for a sentence reduction based
upon Amendment 782 to the Sentencing Guidelines. (Doc. #53.)
The Court denied the motion, stating in part: “Even if
the Base Offense Level is lowered, defendant's guideline
range as a career offender in a Criminal History Category VI
remains unchanged and Amendment 782 would not reduce
defendant's sentence.” (Doc. #60, p. 3.)
2018, the First Step Act (FSA of 2018) made sections two and
three of the FSA of 2010 retroactively applicable to
defendants who were sentenced for a covered drug offense on
or before the FSA of 2010's enactment on August 3, 2010.
FSA of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5194. Defendant has now filed a motion for a sentence
reduction pursuant to The First Step Act of 2018, by and
through appointed counsel. (Doc. #65.) Defendant argues that
he is eligible for such a reduction, and that the Court in
its discretion should grant a sentence reduction to
time-served. The government asserts that defendant is not
eligible for a sentence reduction under the statute, so there
is no discretionary decision to be made.
Court starts with the proposition that a district court has
no inherent authority to modify a defendant's sentence,
but rather may do so “only when authorized by a statute
or rule.” United States v. Puentes, 803 F.3d
597, 606 (11th Cir. 2015). See also Dillon v.
United States, 560 U.S. 817, 824 (2010). As relevant to
this case, 18 U.S.C. § 3582(c) gives the district court
the authority to “modify an imposed term of
imprisonment to the extent. . .expressly permitted by
statute. . . .” 18 U.S.C. § 3582(c)(1)(B). The
parties in this case dispute whether the First Step Act is
such a statute.
Memorandum (Doc. #64) submitted by the Probation Office
states that “defendant is not eligible for a sentence
reduction pursuant to Section 404 of the First Step
Act” because “[r]etroactive application of the
Fair Sentencing Act does not reduce the applicable
penalties.” The memoranda submitted by the parties
argue at some length whether defendant is
“eligible” or “ineligible” under the
First Step Act.
extent that “eligible” refers to the Court's
authority (i.e., jurisdiction) to consider defendant's
request, the Court finds that defendant is eligible under the
First Step Act. The First Step Act authorizes, but does not
require, a district court to “impose a reduced sentence
as if sections 2 and 3 of the [FSA of 2010] were in effect at
the time the covered offense was committed.”
Id. A “covered drug offense” is a drug
offense for which the “statutory penalties” were
“modified” by section two or three of the FSA of
2010. Id. § 404(a). Defendant was convicted of
a “covered drug offense” since the effect of the
FSA of 2010 was to lower the statutory penalty for possession
with intent to distribute five or more grams of cocaine base
from 5 to 40 years imprisonment to a maximum 20 years
imprisonment. Thus the Court concludes that defendant is
eligible to have his case considered under the First Step
Act, i.e., that the Court has jurisdiction under ¶
3582(c)(1)(b) to consider defendant's requested relief.
See United States v. Jelks, 19-10830, 2019 WL