United States v. Moore

412 F.Supp.3d 1111

UNITED STATES of America, Plaintiff,

v.Jonair Tyreece MOORE, Defendant.

4:09-CR-3092

United States District Court, D. Nebraska.

Signed August 22, 2019

Bruce W. Gillan, Sara E. Fullerton, Assistant U.S. Attorneys, U.S. Attorney's Office, Lincoln, NE, for Plaintiff.

MEMORANDUM AND ORDER

John M. Gerrard, Chief United States District Judge This matter is before the Court on Jonair Moore's motion (filing 204) for a sentence reduction pursuant to § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018), which gives retroactive effect to §§ 2 and 3 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). The government opposes the motion, asserting that Moore is not statutorily eligible for a First Step Act reduction. See filing 206.

As explained below, the Court disagrees with the government: Moore is eligible for a reduction under the plain language of the First Step Act. But the Court finds that a reduction is unwarranted. Accordingly, the Court will deny Moore's motion for a sentence reduction.

FACTUAL BACKGROUND

Moore was indicted in 2009 and charged with conspiring, between June 1, 2005 and March 31, 2007, to distribute and possess with intent to distribute 50 grams or more of cocaine base, i.e. "crack" cocaine.¹ Filing 1. That charge subjected him to a minimum sentence of 10 years imprisonment and a maximum sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (2006 & Supp. III 2009). He was convicted pursuant to jury verdict. Filing 75.

The Court found that Moore was responsible for 11.1 kg of cocaine and 1.2 kg of crack cocaine. Filing 146 at 60. Accordingly, the Court found a base offense level of 34 and (after two enhancements that are not relevant to the present motion) a total offense level of 38. Combined with a criminal history category III, the Court found the Guidelines range to be 292 to 365 months' imprisonment. Filing 133 at 1; filing 146 at 61-62. The Court sentenced Moore to 292 months' imprisonment. Filing 132 at 1; filing 146 at 70. The Eighth Circuit affirmed. United States v. Moore , 639 F.3d 443 (8th Cir. 2011).

In 2012, Moore moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10, and U.S.S.G. app. C, amend. 750. See app. C, amend. 750, cmt. reason for amendment. But the Court denied his motion, finding that based on the drug quantities attributable to Moore, his Guidelines range had not changed. Filing 169. Moore had more success, however, with U.S.S.G. app C., amend. 782, which reduced his total offense level to 36 and his Guidelines range to 235-293 months' imprisonment. Filing 193. The Court reduced Moore's sentence to 235 months' imprisonment. Filing 197.

When the First Step Act was passed, the Court identified Moore's case as potentially implicated, and appointed counsel to represent him with respect to First Step Act relief. Filing 200; filing 201. This motion followed.

STATUTORY BACKGROUND

As noted above, at the time of Moore's offense and sentencing, § 841(b)(1)(A)(iii) required a term of imprisonment from 10 years to life for an offense involving more than 50 grams of crack cocaine. The statutory provisions changed in 2010 with §§ 2 and 3 of the Fair Sentencing Act, pursuant to which § 841(b)(1)(A)(iii) now requires that a defendant be found responsible for 280 grams of cocaine base to be subject to a mandatory minimum sentence of 10 years or maximum of life imprisonment. A defendant responsible for only 50 grams of cocaine base—or any amount between 28 and 280 grams—is now subject to a sentence of 5 to 40 years' imprisonment. § 841(b)(1)(B)(iii).

The Fair Sentencing Act did not apply retroactively to defendants who had been sentenced before its effective date. United States v. Reeves , 717 F.3d 647, 651 (8th Cir. 2013). But that changed with the First Step Act, § 404(b) of which provides that for a "covered offense," the sentencing 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." (Citation omitted.) A "covered offense" is defined 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." § 404(a) (citation omitted). And a sentence reduction under the First Step Act is completely discretionary, even for an eligible defendant: § 404(c) provides that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section."

DISCUSSION

The parties disagree about whether Moore deserves a sentence reduction under the First Step Act—but more importantly, they disagree about whether Moore is even eligible for a First Step Act reduction in the first place. The government argues he is not, because according to the government, Moore did not commit a "covered offense" within the meaning of § 404(a). And, the government argues, Moore is not entitled to a sentence reduction under § 404(b) because—based on the drug weight found by the Court at sentencing—Moore's statutory sentencing range would not have changed.

COVERED OFFENSE

First, the government argues that determining whether Moore was convicted of a "covered offense" requires the Court to consider the specific amount of cocaine base for which Moore was held responsible at sentencing. Filing 206 at 3. The government explains:

Eligibility does not turn simply on whether the applicable statute has changed. The key is whether the "violation of a Federal statute" that a defendant actually "committed" would have a different statutory penalty under the higher crack quantity thresholds of the 2010 [Fair Sentencing Act]. Where a defendant would face the same statutory penalty, the violation does not qualify as a "covered offense." A defendant is ineligible for relief, therefore, where the quantity of crack involved in the violation would result in the same statutory penalty under the threshold quantities set by the 2010 FSA.

Filing 206 at 3-4. In effect, the government's argument is that "a violation of a Federal criminal statute" in § 404(a) refers to a particular defendant's violation of the statute, not a generic violation of the statute. But the Court cannot reconcile that interpretation of § 404(a) with its remaining language: the statutory penalties for Moore's particular offense were not and could not have been "modified by section 2 or 3 of the Fair Sentencing Act of 2010" because Moore was sentenced before the Fair Sentencing Act was enacted, and it wasn't made retroactive.

If "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" referred only to a particular defendant's crime, then only defendants sentenced after the Fair Sentencing Act's effective date would have committed "covered offenses", because the Fair Sentencing Act didn't modify the statutory penalties for any defendants sentenced before its effective date. That's obviously not what the First Step Act intends. Instead, the only fair reading of § 404(a) is that a defendant committed a "covered offense" when the defendant was convicted of violating a statute, and the statutory penalties for violating that statute were subsequently modified by the Fair Sentencing Act. In other words, whether an offense is "covered" depends on the offense itself, not the defendant's underlying conduct. So, it applies to Moore, who was convicted of a "covered offense."

PLENARY RESENTENCING

Next, the government argues that § 404(b) authorizes only a limited sentence reduction, not a plenary resentencing. Filing 206 at 6. The government relies on the "analogous circumstances" of 18 U.S.C. § 3582(c)(2), which permits a sentence reduction when a Guidelines amendment has the effect of lowering a sentencing range, but which does not authorize plenary resentencing. See Dillon v. United States , 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). The Court agrees that "plenary resentencing" isn't authorized—but doesn't agree with the narrowly circumscribed alternative proffered by the government.

The comparison to § 3582(c)(2) doesn't prove what the government claims it does, because what § 3582(c)(2) illustrates is that Congress knows how to limit the Court's authority, when it wants to. As the Supreme Court explained, in concluding that § 3582(c)(2) does not authorize plenary resentencing, § 3582(c)(2) requires the Court to consider the binding policy statements of the sentencing commission before applying the 18 U.S.C. § 3553(a) factors. Dillon , 560 U.S. at 826, 130 S.Ct. 2683.

Following this two-step approach, a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense. At step one, § 3582(c)(2) requires the court to follow the Commission's instructions in [U.S.S.G.] § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized. Specifically, § 1B1.10(b)(1) requires the court to begin by "determin[ing] the amended guideline range that would have been applicable to the defendant" had the relevant amendment been in effect at the time of the initial sentencing....

Consistent with the limited nature of § 3582(c)(2) proceedings, § 1B1.10(b)(2) also confines the extent of the reduction authorized. Courts generally may "not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range" produced by the substitution. § 1B1.10(b)(2)(A). Only if the sentencing court originally imposed a term of imprisonment below the Guidelines range does § 1B1.10 authorize a court proceeding under § 3582(c)(2) to impose a term "comparably" below the amended range. § 1B1.10(b)(2)(B).

At step two of the inquiry, § 3582(c)(2) instructs a court to consider any applicable § 3553(a) facto

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