Otis Antonio Smith, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018. ECF No. 826. He asks the court to reduce his current sentence of 262 months to 135 months, but not less than time served, which will result in his immediate release. The government asserts that Smith is ineligible for consideration of a reduction in his sentence, and in thе alternative, that if he is eligible for consideration, a further reduction of his sentence is not warranted. In the event the court determines that Smith is entitled to a reduction in his sentence, the government argues that the sentence should not be less than the guideline range of 188-235 months followed by a 4-year term of supervised release. For the reasons sеt forth below, the court will GRANT Smith's request in part and modify his sentence to 188 months, but not less than time served, to be followed by a 4-year term of supervised release.
BACKGROUND
On October 1, 2004, Smith entered into a plea agreement in which he pleaded guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of a mixture containing a detectable amount оf cocaine base, in violation of
Pursuant to
However, because Smith had two prior felony drug convictions which made him a career offender, his base offense level was 37. U.S.S.G. § 4B1.1(a). When the 3-point decrease for acceptance of responsibility was applied, his subtotal offense level was 34. Nevertheless, because the subtotal offense level based on drug weight was 38, his total offense level was 38. U.S.S.G. § 4B1.1(b). Coupled with a criminal history category of VI, Smith's guideline sentencing range was 360 months to life. U.S.S.G. Ch. 5, Pt. A.
On July 7, 2005, Smith was sentenced to a 360-month term of imprisonment to be followed by a 5-year term of supervised
Smith seeks relief under the First Step Act. He argues that becausе his prior felony drug convictions were dismissed, he is no longer a career offender, which results in a guideline range of 135-168 months. In the alternative, he argues that even with the career offender designation, his new guideline range is 188-235 months and he asks the court to modify his sentence to 188 months.
I. First Step Act
At the time Smith was sentenced, a violation of § 841(a)(1) carried a mandatоry minimum sentence of 10 years and a maximum sentence of life imprisonment if the offense involved more than 50 grams of cocaine base, and a penalty range of 5 to 40 years if the offense involved more than 5 grams of cocaine base.
The First Step Act was passed on December 21, 2018. Section 404 of the act permits a court, upon motion of the defendant or the government, or upon its own motion, to impose a reduced sentence for certain offenses in accordance with the Fair Sentencing Act of 2010, if such a reduction was not previously grаnted. Offenses qualify for the reduction if they were committed before August 3, 2010 and carry the statutory penalties which were modified by section 2 or 3 of the Fair Sentencing Act of 2010. First Step Act of 2018, Pub. L. No. 115-015,
The government argues that even though Smith was sentenced prior to enactment of the Fair Sentencing Act of 2010, and even though his offenses carry the statutory penalties which were modified by Section 2 or 3 of the Fair Sentencing Act, he does not qualify for a sentence reduction. The government asserts that it is the drug weight for which a defendant is held responsible and not the drug weight for which he was convicted that determines eligibility for First Step Act relief and that Smith's drug quantity in the Presentence Investigation Report (PSR) makes him ineligible. In the alternative, the government contends that even if Smith is eligible for a modification of his sentence, the court should exercise its discretion and decline to reduce the sentence.
II. Drug Weight
The government asserts that whether a defendant is entitled to relief under the First Step Act depends on the amount of cocaine base for which he was found responsible in the PSR, rather than the amount for which he was indicted and convicted. Because Smith was found responsible for between 500 grams and 1.5 kilograms on the conspiracy charge, which would make him subject to the
In Apprendi, the Supreme Court held that the Sixth Amendment to the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. In Alleyne, the Court applied Apprendi to the federal mandatory minimum and maximum sentencing scheme and held that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an element of the crime that must be submitted to the jury.
The government argues, correctly, that neither Apprendi nor Alleyne are retroactively applicable on collateral review. See United States v. Sanders,
The government contends that nothing in the First Step Act suggests that Congress intended to adopt a different methodology, and that the act only directs the court to examine a sentence as if Sections 2 and 3 of the Fair Sentencing Act were in effect at the time, and not to change the manner of determining quantity. In essence, the government is asking the court to apply the holding in Harris and disregard Alleyne when examining Smith's sentence. However, Congress, when drafting the First Step Act in 2018, surely did not intend for courts to disregard the last six years of Supreme Court federal sentencing jurisprudence and this court declines to do so.
Alleyne made cleаr that in order to preserve a defendant's Sixth Amendment right to a jury trial, any fact that increases the statutory mandatory minimum sentence is an element of the crime which must be submitted to the jury. Alleyne,
III. Discretion of the Court
The government argues that if the court finds Smith eligible for consideration under the First Step Act, that it should exercise its discretion to deny him relief, in light of the drug weight. It claims that if Smith had been prosecuted after passage of the Fair Sentencing Act, he would have been prosecuted for possession of at least 280 grams of cocaine base, subjecting him to the 10-years-to-life sentencing range found in
This appears to be the approach taken by the court in United States v. Haynes, No. 8:08-CR-441,
This approach was rejected by the court in Dodd,
This court finds the reasoning in Dodd and Pierre persuasive. While it is possible that the government would have proceeded against Smith under
The government further argues that a reduction in Smith's sentence would constitute an unjustified windfall to him based upon the date of his prosecution and offends the need to avoid unwarranted sentence disparities among similarly situated offenders. This argument is based on the government's previous argument that in cases brought after the passage of the Fair Sentencing Act but prior to Alleyne, juries were asked to make quantity determinations based on that act's new thresholds for purposes of establishing applicable statutory maximums, and courts could and did impose higher statutory minimums based on their own conclusions regarding drug quantity.
The government appears to be arguing that this court should ignore both the plain language of the First Step Act regarding who is eligible for a sentence reduction as well as the holding in Alleyne, because othеr defendants sentenced within that three-year window may have been subject to longer statutory minimum sentences. While the court is aware of the need for consistent sentences among defendants, it is not free to ignore either the law or constitutional precedent. As discussed above, this court finds that the First Step Act applies to Smith and finds that it is cоmpelled by Alleyne to look only at the amount of drugs for which Smith was indicted and found guilty when determining whether he is entitled to a sentence reduction. Accordingly, this court will not refrain from modifying Smith's sentence under the First Step Act because other defendants may have been sentenced differently.
IV. Career Offender Guideline
Smith's designation as a career offender is based on two prior felony convictions for possessing a controlled deadly substance within 1,000 feet of school property with the intent to distribute, and distribution of a controlled deadly substance within 1,000 feet of school property. ECF No. 827 at ¶¶ 82, 90, 91, 94. Smith submitted evidence that on October 28, 2010, the charges in those cases were dismissed. ECF No. 826-1. Thus, he argues that he should no longer be considered a career offender and that his sentence should be adjusted accordingly.
The government contends that despite the documentation showing the charges were dismissed, Smith had pleaded guilty to the charges and then absconded. ECF No. 828 at 6. The government further contends that Smith remains a career offender because the First Step Act dоes not authorize the court to reexamine the career offender guideline or conduct a full resentencing.
The court finds that it has authority under
The court has reviewed Smith's PSR, the addendum to the PSR, and the arguments of the parties and finds that under the current Sentencing Guidelines and the
An appropriate Order and amended judgment will be entered. The order will be stayed for 10 days to give the Bureau of Prisons an opportunity to process Smith's release.
Notes
The government argues that a full resentencing is foreclosed by Dillon v. United States,
The offense of conviction is now considered a violation of
Without the career offender designation, Smith's total offense level is 31 and his criminal history category is III, which results in a sentencing range of 135-168 months.