United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR 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.
#169) filed on October 30, 2019, by and through appointed
counsel. The government filed a Response in Opposition (Doc.
#171) on November 13, 2019, opposing a reduction in
defendant's sentence. For the reasons set forth below,
the motion is denied.
4, 2008, a grand jury in Fort Myers, Florida returned a
three-count Indictment (Doc. #1) charging defendant with two
counts of possession with intent to distribute a detectable
(but unspecified) amount of cocaine base, or crack cocaine,
and one count of possession with intent to distribute a
detectable (but unspecified) amount of cocaine, all in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). On November 20, 2008, a jury found defendant
guilty of all three offenses. (Doc. #62.)
to the Presentence Report issued at the time, defendant's
Base Offense Level was a level 26 after deducting two levels
because the cocaine base level was greater that the powder
cocaine level. (Doc. #165, ¶ 17.) Defendant was
determined, however, to be a career offender based on his
prior felony convictions for resisting an officer with
violence, fleeing/attempting to elude, and possession of
cocaine with intent to sell, which resulted in an Enhanced
Offense Level of 32. (Id., ¶¶ 26-27.)
Defendant had a criminal history of category VI, both through
the normal calculation of his criminal history (id.
¶¶ 46-48) and as a career offender (id.
¶ 49). As a result, the guideline range was 210 to 262
months of imprisonment. (Id., ¶ 76.) No count
carried a mandatory minimum sentence.
February 17, 2009, defendant was sentenced to 180 months
imprisonment as to each count, to be served concurrently,
followed by concurrent terms of 36 months supervised release.
(Doc. #68.) Judgment (Doc. #69) was entered the next day.
October 24, 2011, the Eleventh Circuit vacated its prior
decision affirming the convictions and sentences, and
remanded the case to reconsider the career offender
enhancement in light of Johnson v. United States,
559 U.S. 133 (2010). (Doc. #111.) On March 5, 2012, defendant
was resentenced to the same sentence since he remained a
career offender with two qualifying prior felony convictions.
(Docs. ## 125-126.) Defendant's request for a reduction
in sentence pursuant to Amendment 782 of the Sentencing
Guidelines was denied. (Doc. #162.)
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. In 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.
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).
United States Probation Office filed a Memorandum indicating
that the prior sentence was imposed with due consideration to
the Fair Sentencing Act of 2010, and that the First Step Act
did not reduce the applicable statutory penalties. Defense
counsel disagrees, and argues that defendant is eligible for
a reduction to time served.
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). The statutory penalties for
the three offenses of conviction in this case were not
modified by section two or three of the FSA of 2010.
One and Three charged possession with intent to
distribute a detectable but unspecified amount of cocaine
base pursuant to 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), and each carried a sentence of not more than 20
years imprisonment. Under Section 2 of the FSA of 2010, the
Controlled Substances Act amended the penalties under 21
U.S.C. § 841 to strike 50 grams and insert 280 grams in
subparagraph (b)(1)(A)(iii), and to strike 5 grams and insert
28 grams in subparagraph (b)(1)(B)(iii). 21 U.S.C. §
841. Defendant was not convicted under any offense which
required a certain quantity of cocaine base, and was
therefore not convicted of an offense whose statutory penalty
was modified. Rather, defendant was convicted of offenses
which were punishable under § 841(b)(1)(C), which was
not changed or modified by the First Step Act. Since the
§ 841(b)(1)(C) penalty was not modified, defendant's
offenses of conviction are not a “covered drug offense,
” and defendant is not eligible for a reduced sentence
under the First Step Act.
defendant were eligible, the Court finds, in the exercise of
its discretionary authority, that defendant would not be
entitled to relief under the First Step Act because of his
career offender status. Based on defendant's career
offender status, his Criminal History Category would remain
at VI and the Enhanced Offense Level would remain at ¶
32, providing a current range of imprisonment of 210 to 262
months of imprisonment. Defendant's original sentence of
180 months was below the current guideline range, and
therefore defendant ...