United States District Court, E.D. Kentucky, Southern Division, London
OPINION AND ORDER
K. CALDWELL, UNITED STATES DISTRICT JUDGE.
matter is before the Court following a significantly delayed
response and reply to a Court order issued in this case.
Defendant Billy Ray Watson filed a motion for appointment of
counsel under the First Step Act, which was denied by the
Court on initial consideration and granted by the Court on
reconsideration. On July 10, 2019, the Court appointed
counsel to the Defendant for the purpose of “preparing
a motion under the First Step Act.” (DE 48 at 2.) The
Court ordered Probation to provide a copy of its Memorandum
of Recalculation (“Memorandum”) to defense
counsel and the Government, which contained two potential
sentencing calculations applying the First Step Act, Option A
and Option B. Under Option A, the Defendant's guideline
range remained 262-327 months, and under Option B, his
guideline range was reduced to 188-235 months. The Court
further ordered the Government to respond to the Memorandum
within fourteen days of receiving it. Finally, the Court
ordered that Defendant's counsel may reply within
fourteen days of the Government's response.
November 21, 2019, the Court received a response from the
Government agreeing with Probation's analysis under
Option B-stating the Defendant may be entitled to a sentence
reduction under the First Step Act. (DE 49.) Two days later,
the Court received a reply from defense counsel which agreed
with the Government's position. (DE 50.) Defense counsel
requested that “the Court consider the reduced
sentencing guideline range and enter an Amended Judgement
reducing [the Defendant's] sentence as warranted.”
(DE 50 at 1.)
to the First Step Act, “[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.” First Step
Act of 2018, Pub. L. No. 115-319, § 404, 132 Stat. 5194
date, no party has filed a motion for a sentence reduction
under the First Step Act. Based on the responses to the
Memorandum received, the parties appear to agree that a
sentence reduction is warranted at the Court's
discretion. Additionally, no party appears to object to
Probation's analysis under Option B that he qualifies for
a sentence reduction. Since the parties agree that a sentence
reduction is warranted at the Court's discretion and the
Court has not received a motion from any party under the
First Step Act, the Court, on its own motion, will consider
whether a sentence reduction should be granted.
Court finds that the Defendant is eligible for a sentence
reduction under the First Step Act. Defendant pleaded guilty
to possession with intent to distribute over five grams of
crack cocaine. At the time of his sentencing, the Defendant
faced a statutory penalty of not less than 10 years and not
more than life. He was additionally designated as a career
offender under the guidelines. The Defendant's advisory
guideline range was 262-327 months. Following a motion filed
by the Government, the Court sentenced the Defendant to 252
months imprisonment and 8 years of supervised release.
Federal Courts are generally prohibited from modifying a term
of imprisonment once it has been imposed, there are a few
narrow exceptions, including 18 U.S.C. § 3582(c)(1)(B).
United States v. Ballinger, No. 2:09-CR-105, 2019 WL
3292156, at *1 (E.D. Tenn. July 22, 2019) (citing Freeman
v. United States, 564 U.S. 522, 526 (2011)). Under
§ 3582(c)(1)(B), the Court “may modify an imposed
term of imprisonment to the extent otherwise expressly
permitted by statute.” The First Step Act expressly
permits sentence modification for defendants meeting certain
criteria. As articulated below, the Defendant fits the
criteria set out in Section 404 of the First Step Act.
Accordingly, the Court may modify his term of imprisonment.
404 of the First Step Act applies to “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 (Public Law 111-220; 124 Stat. 2372), that was committed
before August 3, 2010.” First Step Act of 2018, Pub. L.
No. 115-319, § 404, 132 Stat. 5194 (2018). The First
Step Act further provides that the Court may impose the
reduced sentence “as if sections 2 and 3 of the Fair
Sentencing Act … were in effect at the time the
covered offense was committed.” Id. A
defendant is only eligible for a sentence reduction if he has
not previously received a sentence or a reduction in
accordance with sections 2 and 3 of the Fair Sentencing Act.
Id. Section 404 finally provides that
“[n]othing in this section shall be construed to
require a court to reduce any sentence pursuant to this
to the enactment of the Fair Sentencing Act, an offense under
21 U.S.C. § 841(b)(1)(B) involving five grams or more of
crack cocaine-like the offense committed by the
Defendant-triggered a five-year minimum, forty-year maximum
statutory term of imprisonment. If the defendant committed
the offense after a prior felony drug conviction became
final, the statutory minimum under this provision increased
to 10 years, and the statutory maximum increased to life.
Additionally, any sentence imposed under § 841(b)(1)(B)
included minimum four-year-term of supervised release, which
increased to a minimum eight-year-term if the individual had
a prior felony drug conviction. Section 2 of the Fair
Sentencing Act increased the threshold quantity under §
841(b)(1)(B) from 5 grams to 28 grams of crack cocaine.
Fair Sentencing Act, offenses involving less than 28 grams of
crack cocaine would now fall under § 841(b)(1)(C).
§ 841(b)(1)(C) has no statutory mandatory minimum and a
statutory maximum of twenty years, which is increased to 30
years if the defendant has a prior felony drug conviction.
Any sentence imposed under § 841(b)(1)(C) must include a
minimum three-year-term of supervised release, which is
increased to a minimum six-year-term of supervised release if
the individual has a prior felony drug conviction.
Defendant was charged with possession with intent to
distribute over five grams of crack cocaine under §
841(a)(1), and he was originally sentenced under §
841(b)(1)(B). The Defendant committed the offense before
August 3, 2010, and the statutory penalties for the offense
committed have been modified by the Fair Sentencing Act.
Defendant also has not previously received any sentence or
reduction in accordance with the Fair Sentencing Act.
Accordingly, the Defendant is eligible for relief under the
First Step Act. If his sentence was imposed “as if
sections 2 and 3 of the Fair Sentencing Act … were in
effect at the time the covered offense was committed[,
]” he would be sentenced under § 841(b)(1)(C),
which, unlike § 841(b)(1)(B), does not impose a
mandatory minimum sentence. Additionally, the Defendant's
statutory maximum under § 841(b)(1)(C) would be 30 years
considering his previous felony drug conviction. Finally,
under § 841(b)(1)(C), the Defendant's term of
supervised release would be at least six years.
Defendant's career offender offense levels and resulting
advisory guideline range have also been affected under the
Fair Sentencing Act. Pre-Fair Sentencing Act, the statutory
maximum for the Defendant's offense was life in prison.
Accordingly, under U.S.S.G. § 4B1.1, the Defendant's
offense level was 37. The Defendant, however, received a
three-point reduction for acceptance of responsibility,
bringing his offense level to 34. Post-Fair Sentencing Act,
the statutory maximum for the Defendant's offense is 30
years. As such, under U.S.S.G. § 4B1.1, his offense
level would now be 34. Applying the reduction for acceptance
of responsibility, his offense level would be 31. This
reduction in offense levels lowers the Defendant's
guideline range from 262-327 to 188-235 months.
light of the foregoing, the Court is inclined to exercise its
discretion to reduce the Defendant's sentence from 252
months to 180 months. Like his initial sentence, this
proposed reduction includes a downward departure from the
advisory guideline range. The Court is also inclined to
reduce the Defendant's period of supervised release from
8 years to 6 years. The Court will allow the parties fourteen
days to object in writing to the foregoing proposed sentence
reduction. The parties will be further directed to inform the
Court if they have no objection. After the time allotted has
expired, the Court will consider any objections and issue an
the Court HEREBY ...