United States District Court, S.D. Iowa
ORDER REDUCING SENTENCE
W. PRATT, JUDGE
the Court is Defendant Anthony Timothy Dodd's Motion to
Reduce Sentence under the First Step Act of 2018, filed March
15, 2019. ECF No. 763. The Government filed its resistance on
March 22, 2019, ECF No. 767, and Defendant filed his Reply on
April 5. ECF No. 773. The case is fully submitted.
pleaded guilty to one count of conspiracy to distribute crack
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)
and 846, on August 19, 2003. See ECF No. 127. On May
25, 2006, the Court sentenced him to life in prison.
See ECF No. 494. On December 19, 2016,
then-President Obama commuted Defendant's sentence to a
term of 240 months, “leaving intact and in effect . . .
the term of supervised release imposed by the court with all
its conditions and all other components of each respective
sentence.” ECF No. 723.
original sentencing, Defendant was held accountable for at
least 1.5 kilograms of crack cocaine. See ECF No.
495 (adopting PSR); ECF No. 506 ¶ 60. At that time his
base offense level was 38 and, after a two-level enhancement
for a dangerous weapon and a three-level reduction for
acceptance of responsibility, his final offense level was 37.
ECF No. 506 ¶¶ 61, 67. He had a criminal history
category of V, and his advisory guideline range was 324- 405
months. Id. ¶ 82; ECF No. 495. His mandatory
minimum sentence was life in prison, as a result of two prior
qualifying felonies under 21 U.S.C. § 851. See
21 U.S.C. § 841(b)(1)(A).
First Step Act of 2018 was enacted on December 21, 2018. Pub.
L. No. 115-391, 132 Stat. 5194. Section 404 of the First Step
Act provides that the court may “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.”
Id. § 404(b); see also 18 U.S.C.
§ 3582(c)(1)(B). The First Step Act defines a
“covered offense” as “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.” Id. § 404(a). Section 2 of the
Fair Sentencing Act modified the statutory penalties for
certain violations of the Controlled Substances Act, 21
U.S.C. § 841(b)(1), effectively reducing the penalty
applicable to Defendant's offense of conviction. Pub. L.
No. 111-220, sec. 2, § 401(b)(1), 124 Stat. 2372 (2010).
time of his sentencing in 2006, Defendant's quantity of
conviction was fifty grams of crack cocaine, which triggered
a statutory mandatory minimum sentence of ten years.
See 21 U.S.C. § 841(b)(1)(A)(iii) (2006).
Because Defendant had two qualifying prior felonies under 21
U.S.C. § 851, his mandatory minimum was increased to
life in prison. See 21 U.S.C. § 841(b)(1)(A).
Section 2 of the Fair Sentencing Act increased the amount of
cocaine base required to trigger a mandatory minimum of ten
years from fifty grams to 280 grams. Sec. 2(a)(1), 124 Stat.
at 2372; see 21 U.S.C. § 841(b)(1)(A)-(B)
(2012). Applying the Fair Sentencing Act retroactively to
Defendant, as directed by section 404 of the First Step Act,
fifty grams of cocaine base is greater than twenty-eight
grams but less than 280 grams, for a mandatory minimum
sentence of five years with a mandatory four-year term of
supervised release. See 21 U.S.C. §
841(b)(1)(B). Because he has a qualifying prior felony under
21 U.S.C. § 851, his mandatory minimum is increased to
ten years, and his term of supervised release is increased to
eight years. Id. In other words, applying the
First Step Act reduces Defendant's mandatory minimum
sentence from life in prison to ten years.
Sentencing Guidelines range has also changed. Under
today's guidelines a quantity of 1.5 kilograms of crack
cocaine results in a base offense level of 32. U.S.S.G.
§ 4B1.1(b)(1). After a two-level enhancement for
possession of a weapon and a three-level reduction for
acceptance of responsibility, his final offense level is now
31. When combined with his criminal history category of V,
Defendant's Guidelines range is now 168-210 months.
Government in its resistance makes two arguments why
Defendant is nonetheless not eligible for a sentence
reduction under the First Step Act. First, that Supreme Court
caselaw as articulated in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99, 108 (2013), is not retroactive and therefore
Defendant-who at sentencing was found responsible for at
least 1.5 kilograms of crack cocaine by a preponderance of
the evidence-is subject to the enhanced mandatory minimum
regardless of the drug quantities he pleaded guilty to.
See ECF No. 767 at 4. The First Step Act, however,
applies to offenses and not conduct. See United States v.
Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2
(W.D.N.Y. Mar. 6, 2019). Defendant's offense was
conspiracy to distribute and possess with intent to
distribute fifty grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(b)(1)(A) (2006) as it then existed.
See ECF No. 131. It is that offense that was
affected by the Fair Sentencing Act, and that offense with
which the First Step Act is concerned.
this argument rests on a misplaced equivalency with sentence
reductions under 18 U.S.C. § 3582(c)(2), a narrow avenue
limited by the U.S. Sentencing Commission through 28 U.S.C.
§§ 994(o) and 994(u) and U.S. Sentencing Guidelines
§ 1B1.10. Such a reduction does not “impose a new
sentence in the usual sense.” Dillon v. United
States, 560 U.S. 817, 827 (2010). In contrast, section
404(b) of the First Step Act contains a broader grant of
authority to “impose a reduced sentence as if sections
2 and 3 of the Fair Sentencing Act of 2010” were in
effect. Both Apprendi and
Alleyne are binding on this Court for sentencings
held today. That these procedural rules do not trigger a
right to relief retroactively on collateral review, see
Walker v. United States, 810 F.3d 568, 574-75 (8th Cir.
2016), is distinct from whether they apply to proceedings
independently authorized under the First Step Act.
the Government argues that because Defendant's sentence
was commuted by the President in 2016, Defendant no longer
qualifies for relief within the meaning of the First Step
Act. ECF No. 767 at 4-5. Although the Court is sensitive to
the breadth of the Executive's clemency power, it is not
infringed here. The executive clemency warrant specifically
states that it commutes “the total sentence of
imprisonment” but leaves “intact and in effect
for each named person the term of supervised release
imposed by the court with all its conditions and all
other components of each respective sentence.” ECF No.
723 (emphasis added). In other words, the commutation changed
the length of the term of imprisonment imposed but did not
otherwise alter either the sentence or the crime of
conviction. Defendant's offense of conviction remains a
“covered offense”-a violation of the federal
criminal law modified by the Fair Sentencing Act of 2010
committed before August 3, 2010-and this Court remains the
“court that imposed a sentence for [the] covered
offense” that is authorized to impose a new sentence
under section 404 of the First Step Act. As a change in the
sentence under the First Step Act does not purport to modify
the commuted term of Defendant's sentence, or modify a
condition added by the executive clemency warrant, the
existence of a grant of clemency does not foreclose relief
under the First Step Act. See Biddle v. Perovich,
274 U.S. 480 (1927) (“No one doubts that a reduction of
the term of an imprisonment or the amount of a fine would
limit the sentence effectively, on the one side, and, on the
other, would leave the reduced term or fine valid and to be
enforced.”). Nor is the commutation “the
overturning of judgment of conviction by some other
tribunal” but “[a]n executive action that
mitigates or sets aside punishment for a
crime.” Nixon v. United States, 506 U.S. 224,
232 (1993) (citing Black's Law Dictionary 1113 (6th ed.
1990)). In other words, the commutation “shortened an
existing sentence, ” it “did not impose a new
sentence” that would place it outside the reach of the
First Step Act. United States v. Stilling, No.
8:08-cr-230-SCB-SPF, slip op. at 3 (M.D. Fla. Mar. 15, 2019);
see also United States v. Walker, No. 1:94-CR-5,
2019 WL 1226856, at *2 (N.D. Ohio Mar. 15, 2019)
(“[T]he Court finds that the First Step Act's
relief applies to defendants with presidential
commutations.”). Further, Defendant's sentence has
not previously been reduced by the Fair Sentencing Act nor
has he previously filed a motion for reduction of his
sentence pursuant to the First Step Act, satisfying section
404(c) of the First Step Act. See Walker, 2019 WL
1226856, at *1.
Government relies on the concurring opinion in United
States v. Surratt, 855 F.3d 218, 219-20 (4th Cir. 2017),
and the Fourth Circuit's subsequent decision in
Blount v. Clarke, 890 F.3d 456, 462-63 (4th Cir.
2018), for the proposition that the clemency warrant prevents
the Court from otherwise modifying the sentence in any way.
In Surratt, the Fourth Circuit found moot a
challenge to the petitioner's mandatory life sentence
after the President commuted his sentence to 200 months
during his appeal. See 855 F.3d at 219. The same
pattern followed in Blount, where the propriety of a
life sentence following Graham v. Florida, 560 U.S.
48 (2010), was determined to be moot after the sentence was
commuted to forty years. 890 F.3d at 456-57. The Government
also cites to Schick v. Reed, 419 U.S. 256, 267
(1974). There the Supreme Court explained that relief based
on Furman v. Georgia, 408 U.S. 238 (1972), which
temporarily prohibited the death penalty, was not available
to a defendant who had initially been sentenced to death but
whose sentence had been commuted to life in prison by the
time Furman was decided. 419 U.S. at 266.
three cases stand for the proposition that the commutation of
a sentence moots a legal challenge to the unlawfulness of the
prior sentence when the commutation cures the alleged
unlawful defect in that sentence. But Defendant does not seek
relief based on a prior version of his sentence. Instead, he
seeks relief under the First Step Act for a sentence
consistent with “sections 2 and 3 of the Fair
Sentencing Act of 2010.” He is eligible for relief even
after his commutation, and his case is not moot. Nothing
about the nature of the commutation prevents this Court's
action when the commutation does not moot the legal issue.
See Walker, 2019 WL 1226856, at *2 (explaining