United States District Court, D. Alaska
ORDER
H.
RUSSEL HOLLAND SENIOR UNITED STATES DISTRICT JUDGE
Motion
to Reduce Sentence [1]
Defendant
moves pro se for a reduction of his current
365-month sentence imposed by this court's judgment of
August 22, 2008.[2] The court interprets defendant's
motion to seek relief under both 18 U.S.C. § 3582(c)(2)
and Section 404 of the First Step Act of 2018, Pub. L. No.
115-391. The motion is opposed.[3] Defendant has served and filed
his reply.[4] By a case status order of February 12,
2019, [5] the court posed several questions to the
parties, to which they responded.[6] The court ordered an updated
pre-sentence report from the Probation Service which was
filed under seal on February 15, 2019.[7] The court had
intended that defendant receive a copy of the addendum to the
pre-sentence report, but that did not happen; and on March
19, 2019, [8] the defendant requested the addendum to
the pre-sentence report which was forwarded to him. The
defendant's reply regarding the addendum to the
pre-sentence report was filed April 2, 2019.[9] As a result of
the court's order of March 29, 2019, [10] the court
received an additional reply from defendant.[11]
There
are no factual disputes as to defendant's motion. No.
hearing is necessary.
Application
of First Step Act of 2018
Section
404 of the First Step Act of 2018 was enacted to extend the
availability of sentence reductions authorized by Section 2
of the Fair Sentencing Act, Pub. L. No. 111-220 to certain
additional defendants. To obtain the benefit of Section
404(b), a defendant must have been imprisoned with respect to
a “covered offense”. Section 404(a). A covered
offense is one based upon a violation of a federal criminal
statute committed before August 3, 2010, the statutory
penalty for which was modified by Section 2 of the Fair
Sentencing Act.
Defendant
committed multiple violations of a federal criminal statute:
21 U.S.C. § 841(a)(1).[12] The offenses were all
committed prior to August 3, 2010. Section 2 of the Fair
Sentencing Act modified the statutory penalties for
violations of 21 U.S.C. § 841(a). The Fair Sentencing
Act raised the threshold beyond which statutory, mandatory
minimum sentences for violation of 21 U.S.C. §
841(b)(1)(A)(iii) apply, from 50 grams of cocaine base to 280
grams of cocaine base. Pertinent to this case, subsection 21
U.S.C. § 841(b)(1)(A)(iii), as amended, made drug
offenses involving 280 grams or more of cocaine base subject
to a ten-year mandatory minimum sentence. If Section 2 of the
Fair Sentencing Act had been in effect in 1998 when defendant
was sentenced, he would have been subject to a mandatory
minimum sentence of ten years if he were responsible for 280
grams or more of cocaine base, irrespective of a lower
advisory guideline sentencing range. As discussed below,
defendant was responsible for far in excess of 280 grams of
cocaine base, and his guideline range was much higher than 10
years.
As
reflected by the pre-sentence report which preceded
defendant's original sentencing, he was responsible for
156 grams of cocaine base, 111.8 grams of powder cocaine, and
1, 300 grams of marijuana. In addition, defendant was held
responsible for another 1, 786 grams of cocaine base because
of his receipt of a total of $70, 168 in proceeds from
dealing in cocaine base. Converting those drug quantities to
the equivalent amount of marijuana, defendant was responsible
for 38, 863 kilograms of marijuana.[13]Defendant's original
sentence was controlled by the amount of drugs for which
defendant was responsible, not by subsection
841(b)(1)(A)(iii). Based upon the amount of drugs for which
defendant was responsible (38, 863 kilograms of marijuana),
his base offense level was 38. An upward adjustment of two
levels for obstruction of justice was added, for a total
offense level of 40. Defendant's criminal history
category was determined to be III. Docket No. 147 at 8. The
advisory guideline range for imprisonment was therefore 360
months to life.
Defendant
was sentenced to a term of imprisonment of 400
months.[14] Defendant did not receive a statutory,
mandatory minimum sentence. If the amendment to subsection
841(b)(1)(A)(iii) had been in effect at the time of
sentencing, it would not have affected defendant's
sentence.
In
consideration of the foregoing, defendant's motion for
relief based upon the First Step Act and Fair Sentencing Act
is denied.
Section
3582(c)(2)
Based
upon 18 U.S.C. § 3582(c)(2), defendant seeks a reduction
of his current sentence of 365 months to time served. In
opposing a sentence reduction, plaintiff contends that a
sentence reduction is not warranted.
At age
37, defendant was charged, tried, convicted, and sentenced
for five violations of 21 U.S.C. §
841(a)(1).[15] The defendant's presentence
report[16] and judgment found defendant to have
been responsible for distribution or possession of the
following controlled substances: 156 grams of cocaine base;
111.8 grams powder cocaine, 1, 300 grams of marijuana, and
$70, 168 of proceeds from dealing in cocaine base (which was
converted to 1, 786 grams of cocaine base). Using the 1997
drug equivalency tables - U.S.S.G § 2.D.1.1 Application
Note 8(D) - the foregoing drug quantities were converted to
the equivalent amount of marijuana: 38, 863 kilograms. Based
upon that computation, defendant's base offense level was
38. U.S.S.G. § 2D1.1(c)(2) (1997). The court imposed a
two-level upward adjustment for obstruction of justice. A
presentence report placed defendant's criminal history
category at II. However, the sentencing judge imposed a
variance to criminal history category III. Defendant's
total offense level of 40 and criminal history category III
yielded an advisory sentencing range of 360 months to life
imprisonment.[17] A sentence of 400 months was imposed,
[18]
to be followed by five years of supervised
release.[19]
In
2008, defendant sought and was granted a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). Defendant's
amended total offense level was 38. His criminal history
category remained III, and his amended guideline range was
292 to 365 months. Defendant's sentence was reduced from
400 months to 365 months.[20] Defendant has presently served
approximately 260 months.[21]
By the
instant motion, defendant seeks a further sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2) based upon a further
amendment to the Sentencing Commission guidelines. Amendment
750 to the Sentencing Commission guidelines effected a
substantial revision of the drug equivalency tables.
Under
the 1997 drug equivalency table, defendant was responsible
for 38, 863 kilograms of marijuana. Under the current drug
equivalency table, U.S.S.G. § 2D1.1, Application Note
8(D), one gram of cocaine powder equals 0.2 kilograms of
marijuana, and one gram of cocaine base equals 3.571
kilograms of marijuana. Under the current drug equivalency
table, defendant is responsible for the following:
156 grams of cocaine base converts to 557.0 kilograms of
marijuana;
111.8 grams of powder cocaine converts to 22.36 kilograms of
marijuana;
1, 300 grams of marijuana equals 1.3 kilograms of marijuana;
and
$70, 168 equals 1, 786 grams of cocaine base which converts
to 6, 377.8 kilograms of marijuana; totaling ...