United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Smith pleaded guilty in 2006 to conspiring to distribute more
than 50 grams of crack cocaine. [Record No. 116] He was
sentenced in March 2007 to a 240-month term of imprisonment,
to be followed by a ten years' of supervised release.
[Record No. 157] Smith now seeks review of his case under the
First Step Act of 2018 (“2018 Act”). [Record No.
190] The United States filed a response to the motion,
indicating that Smith is eligible for a sentence reduction
under the 2018 Act. [Record No. 191] However, the
government's response was not particularly helpful in
resolving the issue presented. The Court also provided
Defendant Smith with an opportunity to submit additional
materials in support of his request for a sentence reduction.
[Record No. 189] Having reviewed the defendant's
additional materials [Record No. 193], the Court has
determined that a sentence reduction is not appropriate and
will deny the relief sought.
necessary to review the details of Smith's conviction and
sentence to determine whether he is eligible for a sentence
reduction and, if so, whether a reduction is appropriate.
Smith pleaded guilty to count one of the second superseding
indictment, which charged that he and others conspired to
distribute, and possessed with the intent to distribute,
fifty grams or more of a mixture or substance containing
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
§ 846. There was no written plea agreement in
Smith's case, but the Presentence Investigation Report
(“PSR”) summarized the defendant's conduct as
Marty Landon Smith, as a result of his actions in the instant
offense, is held accountable for  conspiring to possess
with the intent to distribute and the distribution of 98.807
grams of cocaine (crack) base after having previously been
convicted of one prior drug felony offense. The
defendant's actions in the instant offense began in or
about March 2005 and continued through on or about January 4,
2006. Smith would contribute money to help purchase the crack
cocaine and would share in the profits after the crack
cocaine was sold. Smith would also wire transfer the money
from co-conspirators and give the money to their crack
cocaine sources in Chicago and would assist in the
transportation and distribution of the crack cocaine. Smith
is considered to have an aggravating role in the conspiracy
as he directed Daryl Tyrone Atkinson to wire drug proceeds to
various individuals in Chicago. Smith also directed Atkinson
to purchase vehicles in his name with money provided to him
(Atkinson) by [Patrick] Willard or Smith. Smith, along with
Willard, had the contacts and/or resources to obtain crack
cocaine in Chicago and arrange for, or transport themselves,
to Kentucky. When in Kentucky, Smith and Willard utilized
Atkinson as a distributor of cocaine. Smith and Willard
claimed rights to a larger share of the fruits of the
criminal activities. Information is contradictory as to
whether [Octavia] Tolliver concealed money and drugs on her
person at Smith's request. The conspiracy involved five
or more participants.
2006 version of the United States Sentencing Guidelines
Manual was used to determine the guideline range for
imprisonment in Smith's case. Smith was assigned a base
offense level of 32 according to the amount of crack cocaine
attributed to him. See U.S.S.G. § 2D1.1 (2006).
He then received a three-level increase based on his role as
a manager or supervisor. However, he also received a
three-level reduction based on his acceptance of
responsibility. See U.S.S.G. §§ 3B1.1,
3E1.1 (2006). Accordingly, his total offense level was Smith
was determined to have seven criminal history points,
resulting in a criminal history category of IV. His total
offense level and criminal history produced a guideline range
for imprisonment of 168 to 210 months. However, because Smith
committed the instant offense after a prior conviction for a
felony drug offense, he was subject to a mandatory minimum
sentence of 20 years' imprisonment. See 21
U.S.C. §§ 841(b)(1)(A) (version effective July 27,
2006 to April 14, 2009) and 851. Under the United States
Sentencing Guidelines, if a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily-required minimum sentence
becomes the guideline range for incarceration. U.S.S.G.
§ 5G1.1. Accordingly, the guideline sentence was 20
years' imprisonment in Smith's case, and the Court
initially was statutorily required to impose it, at a
minimum. But that is not the end of the analysis.
courts have limited authority to modify sentences once they
have been imposed. However, a sentence may be modified
“to the extent . . . expressly permitted by statute . .
.” and “in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the [United
States] Sentencing Commission.” 18 U.S.C. §
Sentencing Commission promulgated Amendment 706 on November
1, 2007. The Amendment's effect was to provide a
two-level reduction in base offense levels for crack cocaine
offenses. The Sentencing Commission made Amendment 706
retroactively applicable on March 3, 2008. See
Amendment 713. That same day, this Court issued an Order
indicating that Smith was not eligible for a sentence
reduction pursuant to Amendment 706. [Record No. 169] As
explained in the previous Order, 18 U.S.C. § 3582(c)(2)
allows the Court to reduce a term of imprisonment when a
defendant has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered.
However, Smith's sentence was based on a statutory
mandatory minimum, so he was not eligible for relief.
Fair Sentencing Act of 2010 (“FSA”) was enacted
to “restore fairness to Federal cocaine
sentencing” and to reduce disparities among defendants
convicted of crimes involving cocaine base and power cocaine.
Pub. L. No. 111-220, 124 Stat, 2372 (Aug. 3, 2010). The Act
amended 21 U.S.C. § 841 by increasing the amount of
cocaine base required to trigger mandatory minimum sentences.
Prior to enactment of the FSA, violations involving 50 grams
or more of a mixture or substance containing cocaine base
resulted in a mandatory minimum sentence of 10 years, or 20
years if the offense took place following another felony drug
conviction. But following the FSA's enactment, 280 grams
or more of a mixture or substance containing cocaine base is
required to trigger the minimum sentence. 21 U.S.C. §
841(b)(1)(A) (Effective: Aug. 3, 2010). Any violation
involving between 28 and 279 grams of a mixture or substance
containing cocaine base results in a mandatory minimum
sentence of five years, or a minimum of ten if the violation
is committed following a conviction for another drug felony.
Id. at § 841(b)(1)(B). The FSA did not apply
retroactively to defendants who were sentenced before the
statute was enacted. United States v. Tillman, 511
Fed.Appx. 519, 521 (6th Cir. 2013) (citing Dorsey v.
United States, 567 U.S. 260 (2012)).
United States Sentencing Commission subsequently adopted
Amendment 750, which lowered crack cocaine penalties
consistent with the FSA. Although Amendment 750 applied
retroactively, it provided no relief to defendants like
Smith, whose sentences were based on a statutory minimum term
rather than a guideline calculation.
First Step Act (“the 2018 Act”) was signed into
law on December 21, 2018. Pub. L. 115-391, 132 Stat. 5194. As
relevant here, Section 404 of the 2018 Act allows courts to
reduce defendants' sentences by applying the FSA
retroactively. However, the Court is not required to reduce
sentences of defendants who are eligible for a reduction
under the Act.
FSA been in effect when Smith committed the offense at issue,
he would have been subject to a mandatory minimum sentence of
ten years' imprisonment and a maximum of life.
See 21 U.S.C. § 841(b)(1)(B)(iii). And if
sentenced based on his original guidelines range of 168 to
210 months' imprisonment, Smith would have been eligible
for a sentence reduction pursuant to retroactive amendments
of the guidelines.
the retroactive guideline amendments, Smith's base
offense level, and thus his total offense level, is reduced
to 24. See U.S.S.G. Amendments 706, 750, 782. This
base offense level and Smith's criminal history category
of IV produces a new guidelines range of 77 to 96 months.
However, where a statutorily-required minimum sentence is
greater than the maximum of the applicable range, the
statutorily required sentence ...