United States District Court, D. Colorado
ORDER DENYING MOTION FOR REDUCED SENTENCE PURSUANT TO
THE FIRST STEP ACT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Johnny Scott
Warren's Motion for Reduced Sentence Pursuant to the
First Step Act or 18 U.S.C. § 3582(c)(2). (Doc. # 208.)
The Government filed a Response (Doc. # 212) to the Motion on
September 11, 2019, and Defendant filed a Reply (Doc. # 212)
on September 25, 2019. Based on the following reasons,
Defendant's Motion is Denied.
August 22, 2007, Defendant was charged by indictment with
possession of a firearm by a prohibited person as well as
possession with intent to distribute more than 50 grams of a
mixture and substance containing a detectable amount of
cocaine base (crack cocaine). (Doc. # 1.) After a four-day
trial, a jury returned a guilty verdict on both counts. (Doc.
# 83.) Chief Judge Edward Nottingham presided over the trial
and subsequent proceedings.
15, 2008, Judge Nottingham held a sentencing hearing. Prior
to imposing a sentence, the Court explained the sentencing
range applicable to the offences at issue pursuant to the
United States Sentencing Guidelines
(“Guidelines”). Specifically, the Court
Because of the Chapter 4 enhancements and the fact that
[Defendant] is a career offender, he starts out with a Base
Offense Level of 37. And his Total Offense Level is 37. The
Criminal History Category assigned to a career offender is
Category VI, but the Court notes that [Defendant] falls in
Criminal History Category VI regardless of the fact that he
is a career offender. The imprisonment range is 360
months to life on the drug count. The statutory
limitation on the gun count is 120 months.
(Doc. # 108 at 25-26) (emphasis added).
the Court imposed a sentence of 240 months
on the drug possession count, which is substantially below
the Guideline range. (Doc. # 94 at 2.) That term was to be
served concurrently with a term of 120 months on the gun
count. (Id.) By way of explanation, the Court noted
that “the amount of crack cocaine involved was just
over 50 grams.” (Doc. # 108 at 26.) The Court further
The sentence that is at the bottom of the guidelines [360
months] and which the Government advocates is a sentence
which completely obliterates hope for a 30-year-old man. It
might be different if he didn't have family support. But
one of the things that makes this case unusual is the
astonishing family support that he has, particularly from his
wife. . . . So . . . the Court's going to formulate a
sentence here that doesn't obliterate and dash whatever
hope this man has.
And it's going to be a serious sentence. His criminal
history category, his past conduct, his past membership in
gangs all call for a very severe sentence in this case, and
there is nothing I can do about that. And to pretend that
that doesn't exist and that he hasn't gotten breaks
before is simply to fly in the face of reality.
The Court feels that the most it can do in this case is
impose a sentence of 240 months. And by “the most,
” I mean, that's the least amount of time
that I think I can conscientiously impose.
(Id. at 28-29) (emphasis added). In the instant
Motion, Defendant argues that his sentence should be reduced
pursuant to the First Step Act of 2018. See Pub. L.
115-391, 132 Stat. 5194.
First Step Act of 2018 “made retroactive the crack
cocaine minimums in the Fair Sentencing Act.”
United States v. Rose, 379 F.Supp.3d 223, 227
(S.D.N.Y. 2019). Specifically, section 404 of the First Step
Act permits “a court that imposed a sentence for a
covered offense” to “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, 115 Pub. L. 391 § 404, 132 Stat. 5194, 5222
(2018); United States v. Whittaker, 777 Fed.Appx.
938, 940 (10th Cir. 2019). A “covered offense” is
defined as “a violation of a Federal criminal statute,
the statutory ...