United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Michael Fisher has filed a motion seeking appointment of
counsel to pursue a sentence reduction pursuant to the First
Step Act of 2018 (“the 2018 Act”). [Record No.
130] Upon review of the record, the Court concludes that the
defendant is not entitled to relief under the 2018 Act. His
motion, therefore, will be denied.
pleaded guilty to conspiring to distribute 50 grams or more
of cocaine base and was sentenced to 240 months'
imprisonment in October 2007. [Record Nos. 47, 69] He was
subject to a statutory minimum mandatory sentence of 20 years
and a maximum of life, based on his prior conviction for a
felony drug crime and the quantity of crack cocaine involved
in the offense. 21 U.S.C. § 841(b)(1)(A)(iii)
(effective: July 27, 2006 to Apr. 14, 2009). Fisher's
criminal history includes convictions for second-degree
assault and cultivation of marijuana. This resulted in Fisher
being designated as a career offender under section 4B1.1 of
the United States Sentencing Guidelines.
was held responsible for 230.2 grams of crack cocaine,
resulting in a base offense level of 34 under § 2D1.1 of
the guidelines. However, because the statutory maximum
sentence was life, he was assigned an offense level of 37
under § 4B1.1. He received a three-point adjustment for
acceptance of responsibility, resulting in a total offense
level of 34. Despite Fisher's young age, he had
accumulated six criminal history points, placing him in
criminal history category III. His criminal history category
was increased to VI, however, based on his status as a career
offender. See § 4B1.1(b). This resulted in an
advisory guidelines range of 262 to 327 months.
deciding to sentence Fisher below the guidelines range, the
Court examined the factors under 18 U.S.C. § 3553(a).
First, the Court recognized the seriousness of Fisher's
crime and his extensive criminal history. These factors
indicated that a significant sentence was needed to promote
specific deterrence and protect the public from the
defendant's future crimes. However, the sentencing judge
factored in Fisher's age and potential for
rehabilitation. Despite the defendant's criminal history,
he had never been incarcerated for any significant period
and, accordingly, had not been sufficiently deterred from
criminal conduct. The Court concluded that a sentence of 20
years was sufficient but not greater than necessary to serve
the purposes of § 3553(a).
filed a direct appeal, but the United States Court of Appeals
for the Sixth Circuit dismissed the challenge because Fisher
had waived the right to appeal pursuant to his plea
agreement. [Record No. 103] While Fisher's appeal was
pending, he filed a motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) and retroactive amendments to the
sentencing guidelines. [Record No. 94] The Court denied the
motion, noting that Fisher was sentenced to 20 years (the
statutory minimum at the time) based on his status as a
career offender under U.S.S.G. § 4B1.1. [Record No. 98]
Fair Sentencing Act (“FSA”) was signed into law
in 2010, effectively increasing the quantity of crack cocaine
needed to trigger mandatory minimum sentences under 21 U.S.C.
§ 841(b). Pub. L. No. 111-220. Following enactment of
the FSA, a quantity of crack cocaine less than 280 grams, but
more than 28 grams, results in a mandatory minimum sentence
of 10 years if the defendant had a prior conviction for a
drug felony. § 841(b)(1)(B) (effective Aug. 3, 2010 to
Dec. 20, 2018). The FSA was not retroactive. The United
States Sentencing Commission subsequently promulgated
retroactive amendments to the guidelines, which amended crack
cocaine quantities in § 2D1.1 consistent with the FSA.
In August 2013, Fisher filed a motion to reduce his sentence
pursuant to the amended guidelines. [Record No. 104] The
Court denied his motion, noting that he was sentenced to the
statutory minimum penalty. [Record No. 105]
First Step Act was signed into law on December 21, 2018. Pub.
L. No. 115-391. It permits courts to apply the FSA
retroactively to reduce the sentences of defendants convicted
of certain crack cocaine offenses. Under the FSA,
Fisher's mandatory minimum sentence drops from 20 to ten
years. However, the statutory maximum remains a term of life
Fisher received a mandatory minimum sentence of 20 years, he
was sentenced as a career offender under U.S.S.G. §
4B1.1 Offense levels under that provision are driven by the
statutory maximum sentence applicable to the offense at
issue. Therefore, even if Fisher was sentenced pursuant to
the FSA, his advisory guidelines range under § 4B1.1
would not change. Although 20 years is no longer the
mandatory minimum sentence applicable to Fisher's
offense, it is below the advisory guidelines range and, for
the reasons discussed at sentencing, it is the minimum
sentence that will promote the purposes of 18 U.S.C. §
is no constitutional right to counsel in proceedings filed
under 18 U.S.C. § 3582(c). United States v.
Guyton, 640 Fed.Appx. 854, 856 (11th Cir. 2016) (citing
United States v. Webb, 565 F.3d 789, 793 (11th Cir.
2009)). Instead, the Court has discretion to determine
whether appointment of counsel is warranted. Id.
Here, the record is sufficient to consider Fisher's
request for relief under the 2018 Act, and appointment of
counsel is unnecessary and would be a waste of resources.
on the foregoing, it is hereby ORDERED that
the defendant's motion for the appointment of counsel and
relief under the First ...