United States District Court, S.D. Florida
ORDER GRANTING MOTION TO REDUCE SENTENCE PURSUANT TO
THE FIRST STEP ACT
PATRICIA A. SEITZ UNITED STATES SENIOR DISTRICT JUDGE
CAUSE is before the Court on Defendant Andre Scales' pro
se Motion for a Reduction of Sentence Pursuant to the First
Step Act of 2018 [DE 1258, 1264]. The Government responded
and the Defendant, through counsel, replied. Having considered
the Parties' submissions [DE 1258, 1262, 1264, 1270,
1287], the legal authorities, the Presentence Investigation
Report, oral argument [DE 1312] and the psychological
evaluation of Dr. DiTomasso Ph.D., [DE 1307-1 sealed], the
Court will grant the motion to reduce sentence.
7, 1996, a jury convicted Mr. Scales of three counts: Count
1-conspiracy to possess with intent to distribute crack
cocaine in violation of 21 U.S.C. § 846; and, two
substantive Counts 12 and 14-possession with intent to
distribute a "mixture and substance containing a
detectable amount of cocaine," in violation of 21 U.S.C.
841(a)(1) [DE 362]. The indictment did not specify the
quantity of crack involved or the penalty provision
applicable to 21 U.S.C. § 841 [DE 185]. The PSI,
however, calculated the drug weight to be "in excess of
1.5 kilograms of cocaine base." (PSI ¶ 34).
this drug weight, the PSI calculated Mr. Scales's base
offense level as 38. (PSI ¶ 34); see U.S.S.G.
§ 2D 1.1(c)(1). That level increased two levels, to 40,
because Scales possessed a firearm during the offense. (PSI
¶ 35); see U.S.S.G. § 2D1.1(b)(1). Scales
was also found to be a career offender under U.S.S.G. §
4B1.1, which carries a level of 37, but his higher total
offense level of 40 controlled. (PSI ¶ 40). Lastly,
because of his career-offender status, Scales's criminal
history category was set at VI. (PSI ¶ 65). The
resulting sentencing guideline range was 360 to life, (PSI
¶ 101), but due to 5G1.1(c)(2), the applicable guideline
sentence was life imprisonment.' Furthermore, all three
counts carried a statutory mandatory minimum term of life
imprisonment. (PSI ¶ 100). Also, prior to trial, the
Government filed a Notice of Intent to Seek Enhanced
Penalties pursuant to 21 U.S.C. § 851 based on
Scales's prior conviction for possession of cocaine and
two convictions for the sale of marijuana [DE 289].
has served more than 290 months in prison. During his
incarceration, he has appealed and collaterally attacked his
conviction consistently but unsuccessfully.
court imposes sentence of imprisonment, it is considered a
final judgment on the matter that generally may not be
modified. 18 U.S.C. §§ 3582(b) & 3582(c)(1)(B).
However, a court can modify a sentence where it is
"expressly permitted by statute." 18 U.S.C. §
3582(c)(1)(B). Several Courts have held that 18 U.S.C.
3582(c)(1)(B) is the proper mechanism for a First Step Act
Motion. See United States v. Wirsing, 943 F.3d 175
(4* Cir. 2019).
First Step Act ("FSA") made retroactive the 2010
Fair Sentencing Act, which reduced the hundred-to-one
disparity in the treatment of crack and powder cocaine.
Dell v. United States, 710 F.3d 1267, 1271 (11th
Cir. 2013). Where a defendant is serving a sentence for an
FSA "covered offense," the court is permitted, but
not required 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." PL 115-391, December 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." Id. Pertinent here, the Fair
Sentencing Act increased the threshold amount of cocaine base
needed to trigger the mandatory minimum sentences in 21
U.S.C. § 841 (b)(1)(A)(iii) and (B)(iii) from 50 grams
to 280 grams for a 10-years-to-life sentence, and from 5
grams to 28 grams for a 5-years-to-forty-years sentence,
The Parties' Positions
essence of Mr. Scales's argument is that Section 404 of
the FSA applies to his offenses of conviction, as he has not
sought prior relief under the FSA, and the Court has broad
authority under the FSA and 18 U.S.C. § 3582(c)(1)(B) to
impose a reduced sentence for crack cocaine offenses
committed prior to 2010 to the extent otherwise expressly
permitted by statute. Scales emphasizes that, unlike the
limitations set forth in 18 U.S.C. § 3582(c)(2), under
3582(c)(1)(B), he is entitled to a plenary resentencing.
Scales argues that in determining the drug quantity for
purposes of assessing the statutory penalty, the Court is
required to look only at what was charged under the
indictment and proved to the jury, and not what the PSI
stated. Thus, Scales argues that he is not subject to a
mandatory life sentence because the Indictment in this case
did not charge, and the jury did not find that the offense
involved 280 grams or more of crack cocaine. [DE 1264 at 8].
Scales asserts that if his sentence were imposed today, his
offense level as a career offender would be 34, U.S.S.G.
§ 4B1.1(b)(2), and with his criminal history of category
VI, his advisory Guidelines' range would be between
235-293 months. Mr. Scales has been in federal custody
since October 11, 1995 and has served approximately 290
months' imprisonment. Defendant thus contends that
because he has already served nearly twenty-five years for
offenses that would, under today's law will yield a much
lower sentence, the Court should impose a sentence of time
served and order his immediate release.
United States opposes the motion arguing that the PSI and the
Court, relying on the PSI, determined that the actual weight
of the narcotics involved in Mr. Scales' offenses of
conviction was in excess of 1.5 kilograms of cocaine base,
and that he met the criteria for a career offender pursuant
to USSG 4B1.1. The United States maintains that his statutory
mandatory minimum sentence of life and the statutory minimum
term of 10 years supervised release was correct.
Government further contends that had. Section 2 of the Fair
Sentencing Act been in effect at the time of Mr. Scales's
sentencing, it would have had no impact on his sentence
because Scales received the statutory mandatory minimum term
of life, and there would have been no change to his guideline
range, his sentencing range or his career offender base
offense level [DE 1262 at 5].
Basis for Court's Determination
Court concludes that the First Step Act applies to this case.
First, the law authorizes a court to modify a sentence where
it is "expressly permitted by statute." 18 U.S.C.
§ 3582(c)(1)(B). The Defendant seeks relief under the
First Step Act, a statute, rather than section 18 U.S.C.
§ 3582(c)(2), which applies to changes to the sentencing
range by the Sentencing Commission. By its express language,
the Court's authority to resentence a defendant is
broader under section (c)(1)(B), and is not limited by the
although not addressed in the Government's written or
oral response to the Defendant's Motion, Apprendi v.
New Jersey,530 U.S. 466 (2000), and Alleyne v.
United States,570 U.S. 99 (2013), are
applicable. Before Apprendi and
Alleyne, the Eleventh Circuit held that the weight
or quantity of a controlled substance is not an element of an
offense, so the indictment need not allege the weight or
quantity. United States v. Perez,960 F.2d 1569,
1574 (11th Cir. 1992). Apprendi and Alleyne
changed that judge-made rule by requiring any fact which
increases the statutory maximum penalty (Apprendi)
or minimum penalty (Alleyne) for a crime to be
proved to a jury beyond a reasonable doubt. United States
v. McKinley,732 F.3d 1291, 1296 (11th Cir. 2013). The
Eleventh Circuit has not addressed whether Apprendi
and Alleyne apply in a First Step Act case, and
Courts within and outside this district have split on the
question. Recently, the undersigned considered
Apprendi and Alleyne in granting a First
Step Act reduction to one of Mr. Scales's co-defendants,
United States u. Harris, No. ...