371 F. Supp. 3d 524
E.D. Wis.2019Background
- Defendant (convicted in 1999 of possession with intent to distribute >5g crack) was originally sentenced to 276 months; concurrently received an 18‑month revocation sentence in a separate 1994 case and 90 days for contempt.
- The Fair Sentencing Act (2010) raised the crack thresholds; the First Step Act (2018) made those Fair Act reductions retroactively available at district courts’ discretion.
- Defendant moved under the First Step Act for resentencing; the government joined and the court resentenced him to time served (Feb. 25, 2019).
- After resentencing, BOP treated the 18‑month revocation from the 1994 case as consecutive beginning Feb 25, 2019, so defendant remains in custody; defendant asks court to "correct" its time‑served order to a determinate 219‑month sentence to effect immediate release.
- Government now contends defendant was never eligible (arguing quantity would still trigger the same statutory range) and objects to reducing the 18‑month revocation; court rejects government’s retrospective‑eligibility argument and denies defendant’s motion to alter the judgment.
Issues
| Issue | Defendant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court erred in resentencing to "time served" under the First Step Act | Time‑served did not effectuate immediate release because an 18‑month revocation (separate case) remains consecutive; court should instead impose a determinate 219‑month sentence to account for that revocation | No error in granting time‑served for the count before this court; resentencing authority under First Step Act applies only to that count and does not reach the separate revocation term | Court: No error. Time‑served was a lawful, discretionary First Step Act reduction; court cannot (and will not) alter the unrelated revocation sentence it lacks authority to modify |
| Whether defendant was eligible for a First Step Act reduction given drug quantity | Argues eligibility and that resentencing should reflect Fair Sentencing Act framework; good‑time computations mean he has effectively overserved under a lower hypothetical max | Government argues quantity (46.5 g) would still meet Fair Act thresholds so defendant was not eligible; also contends pre‑Alleyne practice could let judge find quantity | Court: Rejects government’s eligibility challenge based on speculative pre‑Alleyne judicial fact‑finding; affirms eligibility and exercise of discretion to reduce sentence |
| Whether court erred by not converting time‑served into a determinate sentence factoring BOP good‑time credit | Seeks determinate sentence (219 or 224 months) so BOP calculations won’t delay release; cites cases saying courts cannot impose time‑served exceeding statutory maximum | Government did not press for retraction of reduction but objects to altering revocation; argues BOP computes good‑time and release dates | Court: Not error. BOP computes good‑time; time‑served was less than the applicable statutory maximum and falls within discretionary resentencing range |
| Whether the court should reduce the separate 18‑month supervised‑release revocation | Requests that court effectively remove the revocation term by lowering the other sentence | Government objects to reducing the revocation and notes procedural limits | Court: Lacks authority to modify the revocation here; Rule 35 limits and absence of Rule 35(b) motion from gov’t preclude reduction |
Key Cases Cited
- Dorsey v. United States, 567 U.S. 260 (Sup. Ct. 2012) (Fair Sentencing Act applies to post‑Act sentencing of pre‑Act offenders)
- Alleyne v. United States, 570 U.S. 99 (Sup. Ct. 2013) (facts that increase mandatory minimums must be submitted to the jury)
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct. 2000) (any fact that increases penalty beyond statutory maximum must be found by jury)
- Harris v. United States, 536 U.S. 545 (Sup. Ct. 2002) (statutory interpretation regarding facts increasing sentence)
- United States v. Booker, 543 U.S. 220 (Sup. Ct. 2005) (mandatory Guidelines unconstitutional; advisory guideline framework)
- United States v. Nichols, 897 F.3d 729 (6th Cir. 2018) (time‑served unlawful if it exceeds applicable statutory maximum)
- United States v. Mitchell, 905 F.3d 991 (6th Cir. 2018) (related discussion on resentencing and limits on time‑served relief)