United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR
REDUCED SENTENCE PURSUANT TO THE FIRST STEP ACT
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matter before me is defendant Damon Scott's
Unopposed Motion for Reduced
Sentence Pursuant to the First Step Act [#1016],
filed June 24, 2019. As indicated by its title, the motion is
unopposed. I grant the motion.
jurisdiction to consider Mr. Scott's request for sentence
modification under 18 U.S.C. § 3582(c).
Scott's motion is brought pursuant to section 404 of the
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
(Dec. 21, 2018) [hereinafter “First Step Act”].
This section bridges a gap in the application of sections 2
and 3 of the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (Aug. 3, 2010) [hereinafter
“Fair Sentencing Act”], which although
“reduc[ing] the statutory mandatory minimum sentencing
penalties for crack cocaine by significantly reducing the
prior crack/powder ratio, ” did not apply retroactively
to “defendants previously sentenced under the prior
existing mandatory minimum sentencing statutes.”
United States v. Murphy, 501
Fed.Appx. 740, 742 (10th Cir. Nov. 1, 2012).
See also Dorsey v. United States,
567 U.S. 260, 273, 132 S.Ct. 2321, 2331, 183 L.Ed.2d 250
(2012) (“Congress intended the Fair Sentencing
Act's more lenient penalties to apply to those offenders
whose crimes preceded August 3, 2010, but who are sentenced
after that date.”).
section 404 of the First Step Act provides, in relevant part,
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 § 404(b). A “covered offense”
is “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.”
Id. § 404(a).
3582(c)(1)(B) of Title 18 “provides the procedural
vehicle whereby th[e c]ourt may modify [a] Defendant's
sentence” under the First Step Act. United
States v. Potts, 2019 WL 1059837, at *3 (S.D.
Fla. Mar. 6, 2019). See 18 U.S.C.
§ 3582(c)(1)(B) (court may modify a term of imprisonment
only “to the extent otherwise expressly permitted by
statute"). Modification of a sentence under section 3582
is not a plenary resentencing. Dillon v. United
States, 560 U.S. 817, 826, 130 S.Ct. 2683,
2691, 177 L.Ed.2d 271 (2010). By extension, then, district
courts have found the First Step Act likewise does not permit
plenary resentencing, but only “a recalculation of a
defendant's Guidelines numbers under the Fair Sentencing
Act and a possible sentencing reduction consistent therewith,
if warranted, ” United States v.
Lewis, - F.Supp.3d -, 2019 WL 2192508 at *19
(D.N.M. May 21, 2019) (quoting United States v.
Davis, 2019 WL 1054554 at *2 (W.D.N.Y. March 6,
2019)) (internal quotation marks omitted).Concomitantly,
because a defendant need not be present for a proceeding that
involves the correction or reduction of a sentence under 18
U.S.C. § 3582(c), see Fed. R. Crim.
P. 43(b)(4), a hearing is not necessary to resolve a
motion for relief under the First Step Act,  see
United States v. Smith, - F.Supp.3d -, 2019 WL
3071940 at *1 (W.D. Mich. July 15, 2019); Wright
v. United States, 393 F.Supp.2d 432, 441 (E.D.
Va. 2019); Lewis, 2019 WL 2192508
at *19 n.12; Russo, 2019 WL 1277507
at *1; Davis, 2019 WL 1054554 at
court's inquiry under section 3582(c) includes two parts.
At the first step, the court must “follow the
Commission's instructions in §1B1.10 to determine
the prisoner's eligibility for a sentence modification
and the extent of the reduction authorized.”
Dillon, 130 S.Ct. at 2691. Second,
and even if a prisoner is found eligible for a sentence
reduction, the court then must consider “any applicable
§ 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the
policies relevant at step one is warranted in whole or in
part under the particular circumstances of the case.”
Id. at 2692. See
also First Step Act § 404(c)
(“Nothing in this section shall be construed to require
a court to reduce any sentence pursuant to this
3, 2009, pursuant to his plea agreement with the government
[#150], Mr. Scott pled guilty to one count of conspiracy to
distribute and possession with intent to distribute 5 or more
kilograms of cocaine and 50 grams or more of crack cocaine.
Based on an agreed amount of crack cocaine of 94.5 grams
(see Presentence Investigation
Report [“PSR”] ¶ 17 [#1017], filed
under restriction June 24, 2019), Mr. Scott's
classification as a career offender
(id. ¶ 34), and with an
adjustment for acceptance of responsibility
(id. ¶ 32; see
also [#160], filed June 9, 2009), Mr.
Scott's total, adjusted, advisory, offense level was 34
(PSR ¶ 35). Mr. Scott's criminal record placed him
in Criminal History Category VI. An offense level of 34 and a
criminal history category of VI resulted in an advisory
guideline range of imprisonment of 262 to 327 months.
(Id. ¶ 113.) At sentencing,
the government moved under §5K1.1 for an additional
twenty-five percent downward departure from the bottom of the
range based on substantial assistance ([#239], filed
September 8, 2009). The court approved the parties' plea
agreement and sentenced Mr. Scott to a term of imprisonment
of 196 months [#403].
time of Mr. Scott's sentencing, the statutory maximum for
a career offender found responsible for more than 50 grams of
crack cocaine was life imprisonment. Thus, under the
sentencing guidelines his total offense level was 37.
See USSG §4B1.1(b). Under the
Fair Sentencing Act, however, the statutory maximum is not
implicated unless the defendant is found responsible for 280
grams or more of crack cocaine, far less than that to which
Mr. Scott pled guilty. Defendants, such as Mr. Scott, who are
adjudged responsible for 28 or more ...