United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER
Leonard T. Strand, Chief Judge.
case is before me pursuant to defendant's motion (Doc.
No. 96) to reduce sentence pursuant to the First Step Act.
The Government resists. Doc. No. 100.
became law on December 21, 2018, and, relevant to this case,
made the “Fair Sentencing Act of 2010”
retroactive. Section 404 of the FSA provides that a court
may, “impose a reduced sentence as if sections 2 and 3
of the Fair Sentencing Act of 2010 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 FSA 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 ... that
was committed before August 3, 2010.” Id.
§ 404(a). Section 2 of the Fair Sentencing Act modified
the statutory penalties for certain violations of 21 U.S.C.
841(b) related to cocaine, effectively reducing the penalty
applicable to a qualifying defendant. Specifically:
The Controlled Substances Act sets forth three statutory
penalty ranges, of 10 years to life in prison, 5 to 40 years
in prison, and up to 20 years in prison, “applicable to
a drug offender depending primarily upon the kind and amount
of drugs involved in the offense.” Dorsey v. United
States, 567 U.S. 260, 266 (citing 21 U.S.C. §§
841(b)(1)(A)-(C)). . . [U]ntil 2010, the 10-years-to-life
statutory penalty range was triggered by a drug trafficking
offense involving 50 grams or more of cocaine base, 21 U.S.C.
§ 841(b)(1)(A)(iii) (1993), the 5-to-40-year range by a
drug trafficking offense involving 5 grams or more of cocaine
base, id. § 841(b)(1)(B)(iii) (1993), and the
0-to-20-year range by a drug trafficking offense involving
only a detectable amount of cocaine base, Id. §
841(b)(1)(C) (1993). This penalty scheme treated “crack
cocaine crimes as far more serious” than powder cocaine
crimes, Dorsey, 567 U.S. at 266, “impos[ing]
upon an offender who dealt in powder cocaine the same
sentence it imposed upon an offender who dealt in one
one-hundredth that amount of crack cocaine, ”
id. at 263.
“During the next two decades, the [U.S. Sentencing]
Commission and others in the law enforcement community
strongly criticized Congress' decision to set the
crack-to-powder mandatory minimum ratio at 100-to- 1.”
Id. at 268. Thus, in 2010, well after the instant
defendants' 1994 sentencings, Congress “accepted
the Commission's recommendations ... and enacted
the” [Fair Sentencing Act] into law, id. at
269, “reducing the crack-to-powder cocaine disparity
from 100-to-1 to 18-to-1, ” id. at 264.
Specifically, [Fair Sentencing Act's] section 2, titled
“Cocaine Sentencing Disparity Reduction, ”
provides, in full:
(a) CSA.-Section 401(b)(1) of the Controlled Substances Act
(21 U.S.C. 841(b)(1)) is amended
(1) in subparagraph (A)(iii), by striking “50
grams” and inserting “280 grams”; and
(2) in subparagraph (B)(iii), by striking “5
grams” and inserting “28 grams”.
(b) IMPORT AND EXPORT ACT.-Section 1010(b) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(b)) is
(1) in paragraph (1)(C), by striking “50 grams”
and inserting “280 grams”; and
(2) in paragraph (2)(C), by striking “5 grams”
and inserting “28 grams”.
FSA, Pub. L. 111-220, § 2, 124 Stat. 2372. 2372 (2010).
United States v. Antone White, et al., 2019 WL
3719006, at *9 (D.D.C. Aug. 6, 2019). On January 29, 2019, I
entered an order (Doc. No. 95) appointing the federal public
defender to represent the defendant and directing the
defendant to file a motion pursuant to the FSA. On February
11, 2019, the defendant filed a motion requesting a reduction
in his sentence pursuant to the FSA. Doc. No. 96. On March 1,
2019, the Government filed a response opposing any sentence
reduction. Doc. No. 100. On March 22, 2019, the defendant
filed a reply. Doc. No. 103. On March 29, 2019, the
Government filed a supplement. Doc. No. 104. On April 5,
2019, the defendant filed a final response. Doc. No. 105.
March 23, 2006, defendant was indicted on three counts
related to the distribution of crack cocaine. Doc. No. 1. On
September 14, 2006, defendant pled guilty to all three counts
pursuant to Rule 11(c)(1)(C) plea agreement. Doc. Nos. 43, 45.
Specifically, defendant pleaded guilty to distributing 50
grams or more of crack cocaine and admitted to participating
in the distribution of at least 250 grams of cocaine. Doc.
No. 40-1. The presentence investigation report (PSIR)
attributed 347.2 grams of crack to the defendant. Doc. No.
53. The PSIR found a total offence level 31 and a criminal
history category II, resulting in a guideline of 121 to 151
months. On January 3, 2007, the court imposed the
200-month sentence stipulated in the plea agreement. Doc. No.
52. The court also imposed a five-year term of supervised
the court denied the defendant a sentence reduction pursuant
to various guideline changes, including Amendment 750
(implementing the Fair Sentencing Act) and Amendment 782 (All
Drugs Minus Two). See Doc. Nos. 58, 64, 73, 79 and
93. In denying the motions, the court relied on the
parties' Rule 11(c)(1)(C) agreement. See, e.g.,
Doc. No. 93 at 3-4, stating:
Here, the court is unable to rely on Amendment 782 (subject
to subsection (e)(1)) to reduce the defendant's sentence
under 18 U.S.C. § 3582(c)(2) and USSG §1B1.10.
See generally United States v. Curry, 584 F.3d 1102,
1104 (8th Cir. 2009) (discussing United States v.
Wyatt, 115 F.3d 606, 608-09 (8th Cir. 1997)) (explaining
requirements under USSG §1B1.10(b)). Because the parties
entered into an agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) and the defendant's sentence is
predicated on an agreed upon sentence rather than a
sentencing range, relief under 18 U.S.C. § 3582(c)(2) is
not available to the defendant. See United States v.
Williams, 598 F.3d 963, 965 (8th Cir. 2010) (holding 18
U.S.C. § 3582(c)(2) does not apply because court imposed
sentence in accordance with Federal Rule of Criminal
Procedure 11(c)(1)(C)); see also Freeman v. United
States, __U.S.__, __, 131 S.Ct. 2685, 2692-2700 (2011)
(requiring a court to determine whether an agreement under
Federal Rule of Criminal Procedure 11(c)(1)(C) expressly uses
a guideline range applicable to the charged offense to
establish the term of imprisonment); United States v.
Long, 757 F.3d 762, 764 (8th Cir. 2014) (applying
Freeman). Accordingly, the court concludes that a
reduction under 18 U.S.C. § 3582(c)(2) and USSG
§1B1.10 is not justified.
has been in federal custody since June 7, 2006. See
PSIR 6. According to the BOP time computation, submitted by
defendant, he had served approximately 160 months as of
February and has earned approximately 10 months of good time
parties agree that defendant is potentially eligible for
defendant was charged by Indictment in March 2006, with three
separate crack cocaine related crimes. (Docket # 1). In Count
1, defendant was charged with conspiracy to distribute 50
grams or more of crack cocaine, after a prior felony drug
conviction, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846, and 851. (Id.). In Count 2,
defendant was charged with the possession with intent to
distribute 5 grams or more of crack cocaine, after a prior
felony drug conviction, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 851.
(Id.). In Count 3, defendant was charged with the
distribution of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). (Id.).
Defendant pled guilty to all of these counts pursuant to a
Rule 11(c)(1)(C) plea agreement, with the government
withdrawing its 851 notice, and defendant was later sentenced
to the agreed-upon 200-month sentence. (Docket # 40, 45, 52).
Section 2 of the FSA 2010 changed the statutory penalties
associated with the federal crimes set forth in Counts 1 and
2, and defendant committed the offenses prior to August 3,
2010. Therefore, defendant was convicted of a “covered
No. 100 at 5-6. Additionally, if the Fair Sentence Act of
2010 had been in effect when defendant was sentenced,
defendant's guideline range would have been reduced. Even
using the quantity most favorable to the Government's
argument, the 347 grams attributed to the defendant in the
PSIR, the defendant's total offense level would be 27,
for a guideline range of 78 to 97 months.
as will be discussed more below, the parties disagree about
the statutory sentence range. The defendant argues that the
statutory range is controlled by the quantity charged. He
notes that he was charged under 21 U.S.C. § 841(b)(1)(A)
with conspiracy to distribute 50 grams or more of crack and
that the Fair Sentencing Act increased the minimum threshold
for a (b)(1)(A) offense to 280 grams while amending the range
for a (b)(1)(B) offense to 28 grams or more. Thus, post-Fair
Sentencing Act, a charge of 50 grams or more of crack, but
less than 280 grams, is punishable by a mandatory minimum
sentence of 5 and a maximum of 40 years. See 21
U.S.C. § 841(b)(1)(B).
Government notes that the presentence report, which was
adopted at sentencing, found a quantity greater than 280
grams. Thus, the Government contends, even had the Fair
Sentencing Act applied at the time defendant was charged, he
would have been charged under (b)(1)(A) and his statutory
penalties would have remained the same. Among other things,
defendant would still have been subject to a ten-year
mandatory minimum sentence on Count 1, rendering him
ineligible for relief.
Defendant's Opening Brief
supporting brief, defendant argues that he is entitled for
Under the FSA, 50 grams or more of crack is punishable by a
mandatory minimum sentence of 5 and a maximum of 40 years. 21
U.S.C. § 841(b)(1)(B). Even if the court uses the 347
grams attributed by the PSR, a post-FSA guideline would have
only been 32, which would have resulted in a TOL of 29, at
CHC II, equaling 97-121 months. USSG § 2D1.1(c)(4)
(2011). Under the current guidelines, the defendant's BOL
would be 30, and his TOL would be 27, for a guideline range
of 78-97 months. Of course, that sentencing range would
effectively become 120 months. USSG § 5G1.1(b). The fact
that a concurrent 20-year sentence was imposed on count 3, in
which the defendant was charged under § 841(b)(1)(C), is
not a bar to relief. Although FSA 2010 did not amend
(b)(1)(C), the court was merely following the guidance
contained in § 5G1.2(b) of the guidelines. Under the
guidelines, all three counts were grouped together for
purposes of determining the defendant's total punishment.
USSG § 3D1.2(d). (PSR 23).
No. 96-1 at 5. Defendant did not anticipate the
Government's objection based on the disparity between the
charged quantity and the quantity determined at sentencing.
However, defendant did anticipate the Rule 11(c)(1)(C)
[the] Rule 11(c)(1)(C) plea agreement [does not] preclude a
reduction under Section 404 of the First Step Act. The
agreement, which was accepted by the court, allowed the
parties to avoid a 240-month mandatory minimum sentence, one
of the “disproportionally harsh sentences imposed for
crack cocaine offenses.” United States v.
Tucker, 2019 WL 324423, at *2 (S.D. Iowa, Jan. 23,
2019). An argument that defendant's sentence was only the
result of the 11(c)(1)(C) plea agreement, and not of the
statutory scheme that predated the FSA 2010, ignores the
overall sentencing framework for crack offenses. See
Hughes v. United States, 138 S.Ct. 1765, 1775 (2018).
(In context of 18 U.S.C. § 3582(c)(2), a sentence
imposed under an 11(c)(1)(C) plea agreement was ...