United States District Court, D. Alaska
RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE
for Reduction of Sentence
moves pursuant to 18 U.S.C. § 3582(c)(2) and the First
Step Act of 2018 for a sentence reduction. The motion is
pled guilty to a drug conspiracy in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A) and conspiracy to launder
proceeds of unlawful distribution of controlled substances
pursuant to 18 U.S.C. § 1956(h). Defendant's guideline
range for sentencing was therefore 235 to 293
months. At the time of sentencing, defendant's
total offense level was 38. Defendant's criminal history
category was I. Because of the large amount of drugs
involved,  the defendant was subject to a mandatory
minimum term of imprisonment of 10 years. The court granted
defendant a significant variance from the guidelines.
Defendant was sentenced to a term of imprisonment of 132
Amendment 782 effected an across-the-board, two-level
reduction of base offense levels for drugs, including
methamphetamine, marijuana, and powder cocaine. Based upon
Amendment 782, effective November 1, 2014, defendant sought
and was granted a reduction of his total offense level from
38 to 36 and a guideline range from 188 to 235
months. However, this did not result in any
reduction of defendant's term of imprisonment because of
the provisions of U.S.S.G. § IB 1.10(b)(2)(A), which
limits sentence reductions granted pursuant to 18 U.S.C.
§ 3582(c)(2). That policy statement precludes the court
from reducing a defendant's term of imprisonment to less
than the minimum sentence under amended guideline ranges.
Defendant's sentence of 132 months was less than the new
guideline range of 188 to 235 months. Defendant's earlier
motion for a sentence reduction was denied.
court's reduction of defendant's guideline range to
188 to 235 months was based upon the then-popular notion that
guideline Amendment 782 effected an overall two-level
reduction in base offense levels. That assumption did not
take account of the fact that base offense level 38 is the
top of the base offense levels. Drug quantities associated
with base offense level 38 changed as a result of Amendment
782. The drug quantities were increased. For example, under
the 2011 and 2013 guidelines, base offense level 38 applied
to 1.5 kilograms or more of actual methamphetamine or 30, 000
kilograms or more of marijuana. Under the 2014 and subsequent
guidelines, base offense level 38 does not apply until one is
responsible for 4.5 kilograms or more of actual
methamphetamine or 90, 000 kilograms or more of marijuana. In
the 2017 order, the court overlooked the fact that the drug
quantities for which defendant was responsible were so large
that he was subject to base offense level 38 under both the
guidelines in place at the time of his offense as well as
under the 2014 and subsequent guidelines. U.S.S.G. §
2D1.1(c)(1). Defendant's convictions involved 103, 284
kilograms of equivalent marijuana, including 5.16 kilograms
of actual methamphetamine.
in 2017, defendant's base offense level should have
remained 38 and his guideline range 235 to 293 months.
Defendant's sentence of 132 months was less than the
lower end of both the correct guideline range (235 months) or
the incorrect guideline range (188 months). The court's
miscalculation of defendant's guideline range in 2017 was
harmless. At either guideline range, U.S.S.G. § IB
1.10(b)(2)(A) precluded a reduction of defendant's
court turns now to the defendant's contention that he is
entitled to a sentence reduction based upon the First Step
Act of 2018. Defendant argues that §§ 401, 402, and
404 of the First Step Act apply retroactively in this
401 of the 2018 Act deals with defendants who were previously
convicted of serious drug felonies and reduces the minimum
term of imprisonment for a second drug offense from not less
than 20 years to not less than 15 years. At sentencing,
defendant's criminal history was I. He had no prior
felony drug offense. He was not subject to an enhanced
mandatory minimum sentence which the Act reduced. Moreover,
§ 401(c) of the Act makes it clear that this section
applies only "if a sentence for the offense has not been
imposed as of such date of enactment." Defendant is not
awaiting sentencing in connection with the offenses charged
in this case when the Act became effective.
also relies upon § 402 of the 2018 First Step Act which
broadens the availability of the "safety valve" by
which a defendant who qualifies may avoid a mandatory minimum
sentence and obtain a two-level offense level reduction.
U.S.S.G. § 2D1.1 (b)(17). Prior to the Act, a defendant
having more than one criminal history point was disqualified
as regards the safety valve. 18 U.S.C. § 3553(f)(1).
Section 402 of the Act amended § 3553(f)(1), but did not
amend § 3553(f)(4) which disqualifies a defendant who
was an "organizer, leader, manager, or supervisor of
others in the offense" from use of the safety valve.
Defendant's total offense level of 38 was based upon a
base level 38, which was adjusted upward three levels because
defendant was the supervisor of five
participants. Defendant's adjusted offense level
of 41 was reduced by three levels for
acceptance of responsibility. Thus, at the time of
sentencing and now, defendant is disqualified from the §
3553(f) safety valve provision. But even if that were not so,
§ 402 of the Act has only prospective application. It
applies "only to a conviction entered on or after the
date of this Act." Section 402(b). Defendant's
conviction was entered many years prior to the date of
enactment of § 402.
defendant seeks a sentence reduction based upon § 404 of
the First Step Act of 2018. Section 404 of the Act has
application to "covered offenses." A "covered
offense" means a violation of a federal criminal statute
that was committed before August 3, 2010, the statutory
penalties for which were modified by Section 2 or 3 of the
Fair Sentencing Act of 2010 (Pub. L. 111-220; 124 Stat.
defendant's drug offense of conviction was committed
before August 3, 2010. Section 2 of the Fair Sentencing Act
of 2010 made changes in statutory penalties for some drug
offenses. The Act, amended 21 U.S.C. § 841
(b)(1)(A)(iii) by striking the term "50 grams" and
inserting in its place "280 grams". This
modification had the effect of increasing the threshold for
imposition of a 10-year mandatory minimum sentence. Section 2
of the 2010 Act also amended 21 U.S.C. §
841(b)(1)(B)(iii) by striking the term "5 grams"
and inserting in its place "28 grams". This
modification had the effect of increasing the threshold for
imposition of a 5-year mandatory minimum sentence.
foregoing statutory amendments upon which defendant relies in
seeking a sentence reduction amended the applicable mandatory
minimum sentences for offenses involving cocaine
base. Defendant's drug conspiracy conviction
involved large amounts of actual methamphetamine, marijuana,
and some powder cocaine. The statutory alteration
of the thresholds after which mandatory minimum sentences of
10 and 5 years have application in cases involving cocaine
base have no application in this case. The statutory
penalties for drug conspiracies involving methamphetamine,
marijuana, and powder cocaine were not modified by
§ 2 of 2010 Act.
was found responsible for 5.16 kilograms of actual
methamphetamineor, after conversion and consolidation of
other drug quantities, responsible for the equivalent of 103,
284 kilograms of marijuana. Those drug quantities were and
remain subject to a sentence of not less than 10 years'
imprisonment. Defendant's current sentence of 132 months
is consistent ...