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.
#1259) filed on July 30, 2019, by and through counsel. The
government filed an Opposition (Doc. #1263) on August 27,
2019, opposing a reduction in defendant's sentence. For
the reasons set forth below, the motion is granted.
December 10, 1993, defendant Robert Upshaw (Upshaw or
defendant) was convicted by a jury of conspiracy to possess
with intent to distribute crack and powder cocaine in
violation of 21 U.S.C. § 841(a)(1) and § 846.
According to the Presentence Report, defendant obtained
approximately 120 grams of crack cocaine on a monthly basis,
and sold at least 3 kilograms of crack cocaine during his
participation in the offense. (Doc. #1255, ¶ 21.) Given
the quantity of crack cocaine, the statutory penalty was a
mandatory ten years imprisonment to life imprisonment.
(Id., ¶ 84.) As the Eleventh Circuit
In 1993, a jury found Upshaw guilty of one count of
conspiracy to possess with intent to distribute cocaine base.
At his original sentencing, the district court held Upshaw
accountable for 3 kilograms of cocaine base. Using this drug
quantity, Upshaw's base offense level under U.S.
[Sentencing Guidelines Manual] § 2D1.1(c)(3) (1993) was
38. However, because Upshaw had two prior qualifying felony
convictions, Upshaw was designated a career offender.[ ]
The career offender provision, U.S.S.G. § 4B1.1,
instructs the district court that, “[i]f the offense
level for a career criminal from the table below is greater
than the offense level otherwise applicable, the offense
level from the table below shall apply.” U.S.S.G.
§ 4B1.1 (1993). Upshaw's base offense level under
the career offender guideline table was 37, § 4B1.1(A)
(1993), which with his criminal history category of VI
yielded a guidelines range of 360 months to life
imprisonment. However, pursuant to § 4B1.1, the district
court applied the greater offense level, 38, from §
2D1.1(c)(3) to calculate Upshaw's guidelines range. With
a total offense level of 38 and a criminal history category
of VI, Upshaw's guidelines range was 360 months to life
imprisonment. The district court imposed a 360-month
United States v. Upshaw, 362 Fed.Appx. 118, 119
(11th Cir. 2010) (footnote omitted).
appeal, defendant's sentence was affirmed, even though it
violated Apprendi v. New Jersey, 530 U.S. 466 (2000)
and was plain error for this reason, because the error did
not affect his substantial rights. (Doc. #831-1, pp. 24-26,
29-31.) The Eleventh Circuit noted that defendant never
suggested that he was responsible for less than 50 grams of
cocaine base, the threshold amount for a sentence within the
range of 10 years to life at that time. (Doc. #831-1, p. 30.)
Defendant's subsequent motions to modify his sentence
pursuant to 18 U.S.C. § 3582 and Amendments 668, 706,
750, and 782 were all denied. (Docs. ## 1015, 1112, 1151,
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 10-year mandatory minimum from 50
grams to 280 grams. Id. § 2(a)(1)-(2).
See 21 U.S.C. § 841(b)(1)(A)(iii).
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,
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.
United States Probation Office filed a Memorandum (Doc.
#1255) indicating that defendant is “ineligible”
for a reduction in his sentence. This is so because
retroactive application of the Fair Sentencing Act would not
reduce the applicable penalties since defendant was held
accountable for at least 1.5 kilograms but less than 5
kilograms of crack cocaine. Defendant disagrees, and argues
that he is eligible for a reduction because it is the statute
of conviction, not the actual conduct of defendant, that
controls. The government agrees with the ...