United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION AND ORDER
C. REEVES, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Calvin Morgan pleaded guilty in 2009 to possessing with
intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1), discharging a firearm during and in
relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c), and possessing of a firearm as an
illegal user of a controlled substance in violation of 18
U.S.C. § 924(g)(3). [Record No. 24] Morgan was initially
sentenced to a 201-month term of imprisonment, followed by
five years of supervised release on July 14, 2009. [Record
No. 35] However, the United States Court of Appeals for the
Sixth Circuit vacated his sentence [Record No. 53], and the
Court re-sentenced Morgan on November 20, 2012, to a
174-month term of imprisonment and five years of supervised
release. [Record No. 64]
has now filed a letter stating, in relevant part:
I’m hoping that the Courts will take this as a motion
to reduce my sentence on the grounds of Davis v. United
States or [i]f mention[ed] in the First Step Act
concerning the 924(c) and 922(g) stacking. If not is there
another way to do this [, ] please inform me.
[Record No. 87] The letter was docketed as a Motion for
relief under the First Step Act of 2018 (“the
Act”), Pub. L. 115-391, 132 Stat. 5194 (2018), pursuant
to 18 U.S.C. 3582(c)(1)(B). Id.
extent that Morgan’s motion seeks relief under the Act,
the Court notes that the law’s sentencing reform
provisions tangentially relate to only one of the
counts of his conviction: the violation of § 924(c). The
Act was signed into law on December 21, 2018. Pub. L.
115-391, 132 Stat. 5194. Section 403 of the Act amends §
924(c), but it only serves to clarify that the
section’s stacking provision applies when the defendant
has been convicted of a “violation of this subsection
that occurs after a prior conviction under this subsection
has become final.” Pub. L. 115-391, § 403(a), 132
Stat. 5194, 5221-22 (codified as amended at 18 U.S.C. §
924(c)(1)(C)). The statute’s prior language had imposed
higher mandatory minimum sentences when defendants had been
convicted of multiple § 924(c) counts in the
same indictment. See id.; Deal v.
United States, 508 U.S. 129, 132 (1993). The Act
unambiguously states that the Section 403 amendment,
“shall apply to any offense that was committed before
the date of enactment of this Act, if a sentence for the
offense has not been imposed as of such date of
enactment.” Pub. L. 115-391, § 403(b), 132 Stat.
Section 403 of the Act does not actually apply to
Morgan’s sentence. He was not convicted of two counts
of § 924(c) violations in the same indictment. His
Presentence Investigation Report upon resentencing also
reveals no prior conviction under § 924(c) or any
federal statute. [Record No. 69] Finally, the § 924(c)
amendment cannot apply retroactively to his sentence because
he was re-sentenced in 2012, before the 2018 Act’s
as Morgan requests relief under the Supreme Court’s
recent decision in United States v. Davis, 139 S.Ct.
2319 (2019), the Court notes that the defendant has failed to
identify the appropriate procedure or ground for relief.
Morgan has previously filed an unsuccessful 28 U.S.C. §
2255 motion. [Record Nos. 79, 85] His recent letter has
apparently moved for relief under the First Step Act, and the
Court accordingly declines to treat his requests as a
successive 28 U.S.C. § 2255 motion. See In re
Shelton, 295 F.3d 620, 621 (2002) (holding that,
generally, “[d]istrict courts should not recharacterize
a motion purportedly made under some other rule as a motion
made under § 2255 . . . .”). If Morgan seeks to
file a successive § 2255 motion, he is directed to
comply with the requirements of § 2255(h)(2) and obtain
certification from the Sixth Circuit.
the holding in Davis appears to be inapplicable to
Morgan’s sentence. Section 924(c) “authorizes
heightened criminal penalties for using or carrying a firearm
‘during and in relation to, ’ or possessing a
firearm ‘in furtherance of, ’ any federal
‘crime of violence or drug trafficking
crime.’” Davis, 139 S.Ct. at 2324
(quoting § 924(c)(1)(A)). Under § 924(c)(3)(B), a
“crime of violence” includes a felony,
“that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.”
§ 924(c)(3)(B). The recent Davis decision held
that § 924(c)(3)(B) is unconstitutionally vague.
Davis, 139 S.Ct. at 2336.
§ 924 conviction and sentencing, however, concerned,
“discharging a firearm during and in relation to a drug
trafficking crime.” [Record No. 64] As the Court
explained in its July 11, 2016 Memorandum Opinion and Order,
the constitutionality of § 924(c)(3)(B) is irrelevant to
Morgan’s sentence because he was sentenced under the
section’s provisions concerning drug trafficking rather
than those relating to “crimes of violence.”
[Record No. 85, pp. 5-6] The fact that the Supreme Court has
concluded that § 924(c)(3)(B) “crimes of
violence” residual clause to be unconstitutional does
not alter this analysis or have any substantive implications
on the forgoing analysis and discussion, it is hereby
that Defendant Calvin R. Morgan’s letter requesting a
sentence reduction, docketed as a ...