United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Tony Brown pleaded guilty in 2008 to possessing with intent
to distribute 5 grams or more of cocaine base (crack
cocaine). [Record No. 20] He was sentenced in February 2009
to a 180-month term of imprisonment, followed by an
eight-year term of supervised release. [Record No. 50] Brown
has now filed a motion for a sentence reduction under the
First Step Act of 2018 (“2018 Act”). [Record No.
54] The United States filed a response to the motion and
indicated that Brown is eligible for a sentence reduction
under the 2018 Act, but acknowledges that it is within the
Court's discretion to resentence Brown. [Record No. 57]
Brown filed a reply, indicating that he believes he is
eligible for release and has made significant post-conviction
rehabilitation efforts. [Record No. 58] Upon review of the
record, the Court has determined that a sentence reduction is
appropriate and will grant the relief sought.
necessary to review the details of Brown's conviction and
sentence to determine whether a sentence reduction is
appropriate. Brown pleaded guilty to Count One of the
indictment charging a violation of 21 U.S.C. §
841(a)(1), possession with intent to distribute 5 grams or
more of cocaine base. [Record No. 20] Brown's criminal
history includes convictions for trafficking in a controlled
substance and robbery. This resulted in Brown being
classified as a career offender under section 4B1.1 of the
United States Sentencing Guidelines.
2008 version of the United States Sentencing Guidelines were
used to determine the appropriate guideline range.
Brown's base offense level was 26 calculated according to
the 20.167 grams of crack cocaine attributed to him.
See U.S.S.G. § 2D1.1 (2008). However, because
Brown was classified as a career offender, the statutory
maximum sentence was life, so his offense level was increased
to 37. See U.S.S.G. § 4B1.1 (2008). Brown
received a three-level adjustment for acceptance of
responsibility, resulting in a total offense level of 34.
See U.S.S.G. § 3E1.1 (2008). Additionally,
Brown's previous criminal convictions resulted in a
subtotal criminal history score of 13. Three points were
added to the subtotal criminal history score because, at the
time the offense was committed, Brown was on parole from
Fayette Circuit Court and he committed the offense less than
two years after release from imprisonment on a sentence
counted under U.S.S.G. §§ 4A1.1(a) and 4A1.1(b),
placing Brown in criminal history category VI. See
U.S.S.G. §§ 4A1.1(d), 4A1.1(e) (2008). Therefore,
even if Brown's criminal history category did not
initially equate to category VI, a career offender's
criminal history category in every case is adjusted to
category VI. See U.S.S.G. § 4B1.1 (2008).
upon a total offense level of 34 and a criminal history
category of VI, Brown's guideline range for imprisonment
was 262 to 327 months. Brown ultimately was sentenced to a
180-month term of imprisonment after the Court granted a
motion filed by the United States for a downward departure.
In granting the motion, the Court noted that Brown received a
bigger reduction than a defendant would ordinarily receive
for the type of assistance he provided.
Court looks to the provisions of 18 U.S.C. § 3582(c)(2)
in evaluating requests for sentence reductions under the 2018
Act. A district court has limited authority to modify a
sentence once it is imposed. However, a sentence can 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.
Fair Sentencing Act of 2010 (“FSA”) was enacted
purportedly to “restore fairness to Federal cocaine
sentencing” and reduce the disparity between defendants
convicted of crimes involving powder cocaine versus cocaine
base. Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The
FSA amended 21 U.S.C. § 841 by increasing the amount of
cocaine base needed to trigger the mandatory minimum
sentences provided in the statute. Id. Before the
FSA, a mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(B) was triggered by 5 grams of cocaine base.
However, the FSA increased the amount of cocaine base
triggering that mandatory minimum to 28 grams. 21 U.S.C.
§ 841(b)(1)(B) (Effective: Aug. 3, 2010).
enactment of the FSA, any violation involving less than 28
grams of cocaine base did not trigger a statutory mandatory
minimum sentence and resulted in a lower statutory maximum
penalty. 21 U.S.C. § 841(b)(1)(C). However, the FSA did
not previously apply retroactively. United States v.
Tillman, 511 Fed.Appx. 519, 521 (6th Cir. 2013) (citing
Dorsey v. United States, 567 U.S. 260 (2012)).
2018 Act recently made the FSA retroactive. See Pub.
L. No. 115-391, 132 Stat. 5194 (2018). As relevant to the
present case, section 404 of the 2018 Act states: “[a]
court that imposed a sentence for a covered offense may, on
motion of the defendant, the Director of the Bureau of
Prisons, the attorney for the Government, or the court,
impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372)
were in effect at the time the covered offense was
committed.” Id. § 404(a). Therefore, the
Court must first determine whether a defendant is eligible
under the 2018 Act, and then may, but is not required, to
reduce the sentence of a defendant who is eligible for
is eligible for relief under the 2018 Act because he was
convicted of a “covered offense, ” his offense
was committed before August 3, 2010, he was subject to the
enhanced statutory penalties under 21 U.S.C. §
841(b)(a)(B), and those statutory penalties were modified by
section 2 of the FSA. Id. Additionally, Brown's
sentence has not previously been reduced and he has not made
a previous motion under the 2018 Act to reduce his sentence.
See id. § 404(c). Further, pursuant to 18
U.S.C. § 3582(c)(1)(B), a defendant is eligible for a
sentence reduction if it is expressly permitted by statute.
The 2018 Act expressly makes the FSA retroactive and permits
a sentence reduction for covered offenses. See Pub.
L. No. 115-391.
Brown is eligible for relief, the Court next examines whether
Brown is deserving of a sentence reduction. In reviewing
Brown's Presentence Investigation Report, his
disciplinary history while in prison, the parties'
briefs, and the 18 U.S.C. § 3553(a) factors, the Court
determines that a sentence reduction is appropriate. While
Brown has a serious criminal history and two minor
disciplinary violations in prison, he is now 55 years old and
his maturity may produce a lower risk of recidivism.
Additionally, the Court will maintain an 8-year term of
supervised release which would reduce the likelihood of Brown
reoffending and in turn would protect the public from further
crimes of Brown. Based on these facts, the Court has
determined that a sentence reduction is appropriate in the
determine the appropriate sentence reduction, the Court
examines Brown's previous sentence and what his sentence
would be under the present guidelines. Under the 2008
Sentencing Guidelines, Brown's previous base offense
level was 26. U.S.S.G. § 2D1.1(c)(7). The base offense
level was adjusted to 37 because prior to the FSA if a
violation involving more than 5 grams of cocaine base
occurred after a prior conviction for a felony drug offense,
the statutory maximum was life. U.S.S.G. § 4B1.1.
Therefore, after an adjustment for acceptance of
responsibility, Brown's total offense level was 34. After
the FSA and the 2018 Act, Brown's base offense level
would be 20. U.S.S.G. § 2D1.1(c)(10). The base offense
level would be adjusted to 34 because a violation involving
less than 28 grams of cocaine base occurring after a prior