United States v. Scott

          ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR REDUCED SENTENCE PURSUANT TO THE FIRST STEP ACT

          ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE.

         The matter before me is defendant Damon Scott's Unopposed Motion for Reduced Sentence Pursuant to the First Step Act [#1016], ^[1] filed June 24, 2019.^[2] As indicated by its title, the motion is unopposed. I grant the motion.

         I. JURISDICTION

         I have jurisdiction to consider Mr. Scott's request for sentence modification under 18 U.S.C. § 3582(c).

         II. LEGAL STANDARDS

         Mr. 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, ”^[3] 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 (10^th 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.”).

         Specifically, 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).^[4] 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).

         Section 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).^[5] 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).^[6]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, ^[7] 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 *2.

         The 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 section.”).

         III. ANALYSIS

         On June 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].

         At the 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 ...