Opinion
3:04-cr-00225
2022-09-16
UNITED STATES of America, Plaintiff, v. Montrice Antwon JOHNSON, Defendant.
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, Ryan Wade Leemkuil, Andrew H. Kahl, United States Attorney's Office, Des Moines, IA, for Plaintiff.
Melisa Kay Zaehringer, United States Attorney's Office, Davenport, IA, Ryan Wade Leemkuil, Andrew H. Kahl, United States Attorney's Office, Des Moines, IA, for Plaintiff. ORDER GRANTING MOTION TO REDUCE SENTENCE - FIRST STEP ACT ROBERT W. PRATT, Judge
Before the Court is Defendant Montrice Antwon Johnson's Motion to Reduce Sentence under the First Step Act § 404(b), filed on May 26, 2022. ECF No. 59. The Government filed a Response in Opposition. ECF No. 66. Defendant replied to the Government's Response on August 30, 2022. ECF No. 67. The matter is fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the age of twenty-three, Defendant was arrested for a series of events involving possession of controlled substances and distribution of cocaine in exchange for stolen firearms. ECF Nos. 1; 38 ¶¶ 14-18. Defendant was indicted by a grand jury in 2004, and one year later, the Government filed an Information and Notice of Prior Conviction under 21 U.S.C. § 851 to enhance Defendant's mandatory minimum sentence as a result of him having two prior felony drug convictions. ECF Nos. 1, 13, 38 ¶¶ 40-41. Defendant eventually pleaded guilty to one count of possession with intent to distribute at least five grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B), and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). See ECF Nos. 22, 23, 27.
In July 2006, Defendant was sentenced by this Court. ECF No. 36. As a result of Defendant's prior criminal convictions—"delivery of a schedule II controlled substance and second degree burglary"—he was considered a career offender under the United States Sentencing Guidelines. ECF No. 38 ¶ 35; U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1(b) (U.S. Sent'g Comm'n 2003). Defendant's career-offender status enhanced his offense level to thirty-seven under U.S.S.G. § 4B1.1(b)(A) and, following a three-point reduction for acceptance of responsibility, his total offense level was thirty-four. Id. ¶¶ 35-37. Defendant automatically was in category six for his criminal history pursuant to § 4B1.1(b). Id. ¶ 48. Defendant's total Guidelines range was 322 to 387 months and included the mandatory sixty-month term on his § 924(c) conviction, pursuant to U.S.S.G. §§ 4B1.1(c)(2)(A) and (3). Id. ¶ 35. At sentencing, the Court granted Defendant a seven percent variance below the bottom of his Guidelines range to account for Defendant's "dire poverty," as well as the fact that Defendant had "spent an unreasonable amount of time between indictment . . . and sentencing due to factors that weren't part of his control." ECF No. 56 at 9, 11. The Court then sentenced Defendant to 240 months' imprisonment on his § 841(b)(1)(B) conviction, to be followed by a 60-month consecutive term for his violation of § 924(c), for a total prison term of 300 months. ECF No. 36. Upon release from prison, Defendant will serve a total of eight years on supervised release. Id.
Defendant was sentenced under the Guidelines Manual effective November 1, 2003, due to ex post facto concerns. ECF No. 38 ¶ 25.
Defendant previously filed two requests for a reduced sentence under 18 U.S.C. § 3582(c)(2), and they were denied by this Court. See ECF Nos. 46, 48. Both requests were based on actions by Congress and the U.S. Sentencing Commission addressing the wide, unjust disparity between crack and powder cocaine sentences and the quantities that trigger mandatory minimum penalties under the Guidelines. Defendant's first request in 2012 was filed under the Fair Sentencing Act of 2010 and Amendment 750 to the Guidelines. ECF No. 46; see Pub. L. 111-220, § 2(a)(2), 124 Stat. 2372 (2010) (reducing statutory penalties for cocaine base offenses, eliminating the mandatory minimum sentence for simple possession of crack cocaine, and directing the Sentencing Commission to amend the Guidelines to account for certain circumstances in drug cases). Amendment 750 specifically lowered the Guidelines range for offenses involving certain levels of cocaine base. See U.S.S.G. App. C, Amdt. 750 (U.S. Sent'g Comm'n Supp. Nov. 2010). However, because Defendant's Guidelines range at the time of sentencing was controlled by the career-offender guideline—which recommended a higher sentence than the drug-quantity guideline at § 2D1.1—Defendant's sentencing range was not impacted, and he was ineligible for relief. Defendant moved for a reduced sentence again in 2015 under Amendment 782 which revised the Guidelines range for drug-trafficking offenses by changing the base offense levels under § 2D1.1 in order to incorporate the statutory mandatory minimum penalties for drug-trafficking offenses. U.S.S.G. App. C, Amdt. 782 (Supp. Nov. 2014). The Court denied Defendant's motion because Amendment 782 would not change Defendant's career-offender status, and thus his Guidelines range stayed the same and he was ineligible for relief. ECF Nos. 47, 48, 51.
Defendant is currently in federal custody at Yazoo City United States Penitentiary and his tentative release date is April 13, 2028. Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/mobile/find_inmate (last visited Sept. 15, 2022). After serving more than fifteen years (190 months) in federal prison, Defendant has filed this Motion to reduce his sentence to time-served under § 404(b) of the First Step Act (FSA), Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018) and 18 U.S.C. § 3582(c)(1)(B). ECF No. 59. The Government agrees Defendant is eligible for relief under the FSA because he was convicted of possession with intent to distribute cocaine base under § 841. ECF No. 66. The Government, however, urges the Court to exercise its discretion to deny Defendant's Motion regardless of his eligibility for relief because the 18 U.S.C. § 3553(a) factors do not weigh in favor of reducing Defendant's sentence. Id. at 5.
"After being sentenced to 300 months imprisonment for the instant offenses on July 14, 2006, [Defendant] returned to state custody, where he remained until October 30, 2006." ECF No. 59-1 at 13.
Defendant properly filed his Motion under 18 U.S.C. § 3582(c)(1)(B) because § 3582(c)(2) only applies when the Sentencing Commission decides to make Guidelines amendments retroactive. See, e.g., Dillon v. United States, 560 U.S. 817, 821, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).
II. ANALYSIS
The First Step Act of 2018 amended various provisions of the U.S. Code to promote rehabilitation of prisoners and unwind decades of mass incarceration. Cong. Research Serv., R45558, The First Step Act of 2018: An Overview 1 (2019). Specific to this case, the FSA "authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine." Concepcion v. United States, — U.S. —, 142 S. Ct. 2389, 2396, 213 L.Ed.2d 731 (2022). Importantly, Congress in FSA § 404(b) made certain provisions of the Fair Sentencing Act of 2010 retroactive. United States v. McDonald, 944 F.3d 769, 771 (8th Cir. 2019); Concepcion, 142 S. Ct. at 2397 (citing FSA § 404(b)). District courts now have discretion to reduce a person's "sentence 'as if' the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed." Concepcion, 142 S. Ct. at 2396. When deciding whether to reduce a defendant's term of imprisonment under the FSA, and by how much, district courts may consider any relevant and probative information, including "intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison)." Id.; but see FSA § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.")
There are two steps for a district court to follow when deciding a FSA motion. McDonald, 944 F.3d at 772. First, the court must determine whether a person is eligible for FSA relief, or whether they were convicted of a "covered offense" under the Act. Id. Second, "if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction." Id.; Concepcion, 142 S. Ct. at 2401. Under the second step, a district court must calculate an eligible defendant's amended Guidelines range before exercising its discretion whether to reduce a sentence. United States v. Holder, 981 F.3d 647, 651 (8th Cir. 2020). In ruling on "a [FSA] motion, district courts bear the standard obligation to explain their decisions and demonstrate that they considered the parties' arguments." Concepcion, 142 S. Ct. at 2404. And, "[w]hen it comes to that reasoned explanation, the [FSA] 'leaves much . . . to the judge's own professional judgment.' " Id. (citation omitted). Importantly, "[discretion] takes account of the law and the particular circumstances of the case and is 'directed by the reason and conscience of the judge to a just result.' " Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 77 L.Ed. 266 (1932) (citation omitted).
A. Eligibility
First, to be eligible for FSA relief, a person must have committed a "covered offense." FSA § 404(a). Congress defines a covered offense 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." Id. Section 2 of the Fair Sentencing Act modified 21 U.S.C. § 841 by raising the threshold quantities of cocaine base that determined certain mandatory penalties. Terry v. United States, — U.S. —, 141 S. Ct. 1858, 1861, 210 L.Ed.2d 108 (2021) ("Congress . . . . [I]ncrease[d] the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum."). This modification reduced the 100-to-1 sentencing disparity between crack and powder cocaine down to an 18-to-1 disparity, and the Sentencing Commission revised the drug tables in the Guidelines accordingly. Id. What used to require "500 grams of powder (heavier than a football) but just five grams of crack (the weight of a nickel)" was found to have "no meaningful policy justification." Id. at 1865 (Sotomayor, J., concurring). Congress then made these changes retroactive in 2018 by enactment of the FSA. Id. at 1862. In effect, defendants sentenced for possessing at least five grams of cocaine base prior to August 3, 2010, in violation of § 841(b)(1)(B)—as enhanced by § 851 if there is a prior felony drug offense—would no longer face a mandatory statutory penalty of ten years to life in prison. Instead, defendants possessing at least five grams of crack cocaine with a prior "felony drug offense" would face zero to thirty years of imprisonment. § 841(b)(1)(C).
Here, Defendant is eligible for FSA relief because he was indicted for possession with intent to distribute at least five grams of cocaine base in violation of § 841(b)(1)(B), enhanced by § 851. See Terry, 141 S. Ct. at 1863. Defendant committed a "covered offense" under the FSA and his penalties were retroactively amended by section 2 of the Fair Sentencing Act. If sentenced today, Defendant would face zero to thirty years of imprisonment under an enhanced § 841(b)(1)(C) violation, instead of ten years to life. Id. Defendant's Guidelines calculation is also correspondingly reduced. Defendant has not yet received the benefit of the FSA changes to his sentence, and this is his first motion for relief under the Act. See FSA § 404(c) (placing two explicit limitations on available FSA relief, including a court's inability to consider relief for a sentence previously reduced by sections 2 or 3 of the Fair Sentencing Act, or a prior FSA motion that was denied). Because the FSA determined relief applies retroactively to Defendant's case—regardless of his career-offender status—the Court may proceed with ruling on Defendant's Motion.
B. Available FSA Relief
Second, because Defendant is eligible for FSA relief, the Court must determine Defendant's amended Guidelines range, and then decide whether to grant a reduction in sentence, and if so, by how much. See Holder, 981 F.3d at 651; McDonald, 944 F.3d at 772.
The U.S. Probation Office (USPO) has provided the Court with a memorandum calculating Defendant's amended advisory Guidelines range based on the 2021 Sentencing Guidelines Manual. ECF No. 63 at 2; U.S.S.G. § 4B1.1 (U.S. Sent'g Comm'n 2021). Under the career-offender guideline at § 4B1.1(b)(2), Defendant's base offense level is thirty-four. Id. Defendant then receives a three-point reduction for acceptance of responsibility under § 3E1.1, which lowers his total offense level to thirty-one. Id. Defendant's criminal history category does not change and remains at category six. Id. With a criminal history category of six and a total offense level of thirty-one, Defendant's Guidelines imprisonment range is reduced from 322 to 387 months to 262 to 327 months, pursuant to § 4B1.1(c)(3). Id.
The Government agrees with the USPO's amended Guidelines range. ECF No. 66 at 6. Defendant also largely agrees with the amended range, however, Defendant further requests that he be resentenced as a non-career offender given the nonretroactive changes in Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). At sentencing, Defendant's career-offender status was based upon two prior state felony convictions for "delivery of a controlled substance and second degree burglary." ECF No. 38 ¶¶ 35, 40-41, 42. The effect of Mathis is that Defendant's Iowa burglary conviction is categorically overbroad and would no longer be considered a "crime of violence" to trigger the career-offender guideline. 579 U.S. at 519, 136 S.Ct. 2243; see ECF No. 59-1 at 7. Defendant's total offense level without the career-offender guideline would thus be lowered to twenty-one and his criminal history category decreased to five, for an advisory Guidelines range of 130 to 147 months after incorporating his mandatory consecutive § 924(c) term. ECF No. 59-1 at 8. The Government argues that even if the Court "mistakenly classified [Defendant] as a career offender, then his recourse was to pursue a direct appeal or a motion for post-conviction relief under 28 U.S.C. § 2255," not seek resentencing as a non-career offender under the FSA. ECF No. 66 at 7; but see United States v. Chen, No. 20-50333, 48 F.4th 1092, 1101 (9th Cir. Sept. 14, 2022) ("This argument fails to persuade because Congress has provided a mechanism in § 3582 (c)(1) that allows defendants to seek modifications even if their sentences were not imposed in violation of the Constitution or federal law."). The Government does not directly challenge Defendant's argument that he would not qualify as a career offender today.
The Court recognizes that Concepcion affirms the broad factors a district court may consider in reducing a sentence under the FSA, rather than limiting a reduction to changes under the Fair Sentencing Act alone. 142 S. Ct. at 2400-01. But the Court lacks authority under FSA § 404 to recalculate Defendant's amended Guidelines range as though he were a non-career offender. See id. at 2402 n.6 ("A district court cannot . . . recalculate a movant's benchmark Guidelines range in any way other than to reflect the retroactive application of the Fair Sentencing Act."). Similarly, the Eighth Circuit holds modifications to a sentence under the FSA do not entitle defendants to a resentencing, though a Court may consider any relevant 18 U.S.C. § 3553(a) factors in reducing a sentence. See McDonald, 944 F.3d at 772 ("[Defendant] argues that . . . the district court must conduct a resentencing hearing to consider his § 404 motion. However, we have already decided that the [FSA] does not require district courts to hold a hearing when considering § 404 motions.") (citing United States v. Williams, 943 F.3d 841, 842-43 (8th Cir. 2019)). In addition, "[i]n many cases, a district court is prohibited from recalculating a Guidelines range in light of nonretroactive Guidelines amendments, but the court may find those amendments to be germane when deciding whether to modify a sentence at all, and if so, to what extent." Concepcion, 142 S. Ct. at 2400.
Indeed, had Defendant's original sentence been vacated and remanded for resentencing on appeal, Defendant would very likely be resentenced as a non-career offender and his amended Guidelines range controlled by U.S.S.G. § 2D1.1, not § 4B1.1. See id. at 2396. But for purposes of this Motion, the Court only has authority to recalculate Defendant's amended Guidelines range under the FSA, as controlled by the career-offender guideline in § 4B1.1. Applying section 2 of the Fair Sentencing Act as if it were in place at the time of Defendant's offense, the Court adopts the USPO's calculation of Defendant's amended Guidelines range. If section 2 were established at the time of Defendant's offense, his criminal history category would be six, his total offense level would be thirty-one, and his amended Guidelines imprisonment range 262 to 327 months. The Court may now consider all factual and legal changes since Defendant's offense—including whether Defendant would be considered a career-offender today—in arriving at the appropriate sentence reduction based on his amended advisory Guidelines range. Concepcion, 142 S. Ct. at 2402.
The Government and Defendant agree that if Defendant were sentenced today, a reduction in sentence to at least 244 months is warranted because 244 months reflects a seven percent variance below the bottom of Defendant's amended Guidelines range consistent with the Court's reduction at sentencing. See ECF Nos. 59-1 at 7, 66 at 6. Of course, Defendant would like a reduction well below 244 months to time-served, but it appears the parties can at least agree that 244 months is an appropriate place to start. The Government, on the other hand, takes the position that even though Defendant is eligible for a sentence reduction to 244 months, the Court should use its discretion to deny any reduction of Defendant's sentence in light of the 18 U.S.C. § 3553(a) factors.
The Court has considered the relevant § 3553(a) factors and concludes a reduced sentence is justified. The question is how much to reduce Defendant's sentence and what is "sufficient, but not greater than necessary" to achieve the purposes of sentencing. § 3553(a). "[T]he information a district court may use to inform its decision whether and how much to reduce a sentence" is relatively unlimited. Concepcion, 142 S. Ct. at 2399, 2402; see also FSA § 404(c) (placing two explicit limits on when a court can consider FSA motions). This is distinct from motions filed under § 3582(c)(2) because they are controlled by the Sentencing Commission's policy statements, such as U.S.S.G. § 1B1.10, and in that case a district court's discretion is expressly cabined by Congress. Concepcion 142 S. Ct. at 2401, 2402 n.5; see, e.g., United States v. Price, 44 F.4th 1288, 1294-95 (10th Cir. 2022) (concluding sentencing modifications under § 3582(c)(1)(B) do not need to be consistent with the Commission's policy statements, unlike § 3582(c)(2) modifications). When deciding how much to reduce a sentence under the FSA district courts may consider diverse sources of information, including but not limited to "intervening changes of law or fact," "evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes." Concepcion, 142 S. Ct. at 2401, 2404.
Defendant argues the following reasons justify a sentence reduction below the bottom of the amended Guidelines range: (1) Defendant's non-career offender status if sentenced today; (2) legislative proposals under the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, S. 79, 117th Cong. (2021-2022), which would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine; (3) Defendant's history and characteristics including his post-sentencing rehabilitation; and (4) the nature and circumstances of the offense and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," § 3553(a)(6). The Court is obligated to explain its decision and demonstrate consideration of all Defendant's nonfrivolous arguments before it. Concepcion, 142 S. Ct. at 2404.
1. Non-Career Offender Status
When the Court sentenced Defendant in 2006, his prior burglary conviction and controlled substance conviction triggered the career-offender enhancement. ECF No. 38 ¶¶ 35, 40, 42. Since then, a conviction under Iowa's burglary statute is no longer considered a "crime of violence" within the meaning of the career-offender guideline. Mathis, 579 U.S. at 519, 136 S.Ct. 2243. Without the predicate burglary offense, Defendant's sentence today would not be controlled by the career-offender guideline, but instead by § 2D1.1. His total advisory range would be 130 to 147 months, which includes the mandatory 60-month term under § 924(c). See ECF No. 59-1 at 8. Defendant has already served over 190 months of his actual sentence, which is more than three years above the top of today's controlling Guidelines range. Id. A district court has discretion to rely "on factors other than the reduction in the crack-powder sentencing disparity" in reducing a person's sentence under the FSA. United States v. Sisco, 41 F.4th 1032, 1036 (8th Cir. 2022). Therefore, the Court concludes this nonretroactive change in Defendant's sentence justifies a reduction below 244 months.
The USPO used Defendant's burglary conviction as a predicate offense even though Defendant had two prior felonies for delivery of a schedule II-controlled substance. See ECF No. 38 ¶¶ 40-41. It appears from the PSR that Defendant's burglary offense was used as a predicate offense because the two prior controlled substance convictions were related and thus could only be counted as one predicate offense. Id. ¶ 41.
2. EQUAL Act
Next, the Court considers changes under the EQUAL Act, which proposes to eliminate the sentencing disparity between crack and powder cocaine entirely. S. 79, 117th Cong. (2021-2022). The EQUAL Act passed the U.S. House of Representatives in a bipartisan 366 to 61 vote but has not yet passed the U.S. Senate. See H.R. 1693, 117th Cong. (2021); S. 79, 117th Cong. (2021-2022). Senator Cory Booker of New Jersey introduced the Act, and it currently has twenty-one bipartisan cosponsors and has been referred to the Senate Judiciary Committee for review. See S.79 - EQUAL Act, https://www.congress.gov/bill/117th-congress/senate-bill/79 (last visited Sept. 16, 2022). Senator Chuck Grassley, as ranking member of the Senate Judiciary Committee, prepared opening remarks before the Committee in June 2021 regarding federal sentencing for crack and powder cocaine. Hearing on Examining Federal Sentencing for Crack and Powder Cocaine Before the S. Comm. On the Judiciary, 117th Cong. (2021) (statement of Sen. Chuck Grassley, Ranking Member, Sen. Judiciary Comm.), available at https://www.judiciary.senate.gov/06-22-21-grassley-statement. In his opening remarks, Senator Grassley expressed his "openness to reevaluating the sentencing disparity between crack and powder cocaine" and making such changes retroactive. Id. Senator Grassley noted he co-sponsored the Fair Sentencing Act and supported the 18 to 1 ratio being made retroactive in the FSA. Id. Grassley further stated, "maybe there's more to do," but without Department of Justice (DOJ) testimony at the hearing, he did not feel well-informed enough to fully evaluate the Act in particular. Id. However, the DOJ issued a statement at the hearing before the Committee indicating "[t]he [DOJ] strongly supports the [EQUAL Act] legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those in involving powder cocaine." See ECF No. 59-3 at 2; see also United States v. Samas, No. 3:18-CR-00296, 2021 WL 5996815, at *1 (D. Conn. Dec. 7, 2021) (reducing sentence to time served in part because the DOJ "has now taken the position that crack cocaine should not be subject to move severe sentencing consequences than powder cocaine"); United States v. Williams, No. 06-20047-01, 2022 WL 3594585, at *4 (D. Kan. Aug. 23, 2022) ("The government agrees with [Defendant] that, were he sentenced today, he would receive the benefit of a government recommendation that the court sentence him 'based on the powder cocaine guideline.' "). The DOJ in support of the EQUAL Act further states, "[t]he disparity in federal cocaine sentencing policy has been the most visible symbol of racial unfairness in the federal criminal justice system for almost 35 years, and it is time to eliminate it." See ECF No. 59-3 at 3; see also Kimbrough v. United States, 552 U.S. 85, 86, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (noting the sentencing disparity between crack and powder cocaine "fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race.").
Assuming Defendant would not be categorized as a career-offender if sentenced today, Defendant argues that if the cocaine base attributed to him at sentencing were scored as powder cocaine under § 2D1.1, his total offense level would be twelve and his criminal history category would be five. ECF No. 59-1 at 10. His advisory Guidelines range would be 27 to 33 months, increased to 87 to 93 months with the required consecutive § 924(c) term. Id. at 11. The Government opposes the Court's consideration of the EQUAL Act because it is proposed, rather than enacted, legislation. The Government further argues that "[a]pplying an amended base offense level based on a categorical disagreement in a sentencing modification would create unwarranted sentencing disparities." ECF No. 66 at 8.
It seems odd for the Government to blind itself to the weight of the DOJ's strong support of the Act and how it should impact the Court's consideration of Defendant's motion for a reduced sentence. The Court also has broad discretion to consider any relevant information in reducing Defendant's sentence below the amended base offense level, or "benchmark" advisory Guidelines range. See Concepcion, 142 S. Ct. at 2403. Defendant should be able to benefit from the DOJ's current position regarding crack and powder cocaine sentencing, and any failure to give him the benefit of these changes in DOJ policy would seemingly cause an unwarranted sentencing disparity in this case. See § 3553(a)(6). Further, a Court may have disputes with the Guidelines' sentencing policy for cocaine offenses because "the Guidelines are advisory rather than mandatory." Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); e.g. Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (citing Kimbrough, 552 U.S. at 109, 128 S.Ct. 558). That is because the "Commission's work is ongoing . . . . [Indeed, it is] helped by the sentencing courts and courts of appeals in that process." Rita v. U.S., 551 U.S. 338, 350, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The Guidelines "reflect the fact that different judges (and others) can differ as to how best to reconcile the disparate ends of punishment." Id. at 349, 127 S.Ct. 2456. After all, "[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court." Id. at 357-58, 127 S.Ct. 2456. Therefore, the Court concludes the EQUAL Act and its proposed elimination of the sentencing disparity between crack and powder cocaine justifies a downward variance in Defendant's sentence below the advisory amended range.
3. History & Characteristics
What is more, the Court considers Defendant's history and characteristics mitigating, including his post-sentencing rehabilitation. See Concepcion, 142 S. Ct. at 2404-05. Defendant's brief in support of his Motion states the following about his background and the struggles he faced at home and within the criminal legal system prior to the offense in this case:
Mr. Johnson was raised primarily in the Cedar Rapids/Waterloo area by his mother, although he had summer visits with his father in Waterloo. PSR ¶¶ 61-62. He reports very little discipline growing up, and only inconsistently attended school, dropping out completely in the tenth grade. Id. ¶¶ 62, 74. He began using marijuana at age fifteen, and was adjudicated delinquent for participating in an assault with several other juveniles, and for stealing a bicycle. Id. ¶¶ 38, 72. He was sentenced to probation and a day treatment program, which he successfully discharged. PSR ¶ 38.
At age 16, Mr. Johnson went to live with his sister after dropping out of high school. Id. ¶ 62. He continued to persistently use marijuana, and by age 18, he was both drinking and again in trouble with the authorities. PSR ¶¶ 39, 72. He received a deferred judgment for assault causing bodily injury shortly after his 18th birthday, for which he was sentenced to one year of probation and 25 hours of community service. PSR ¶ 39. On January 14 and February 16, 1999, at age 19, he was involved in the sale of 3.25 and 3.18 grams of crack cocaine to a confidential source, leading to two separate Iowa convictions for delivery of a controlled substance. PSR ¶¶ 40-41. Although Mr. Johnson was initially sentenced to probation and a deferred prison sentence, he was revoked in 2000 and sentenced to concurrent ten year prison terms. PSR ¶¶ 40-41. Id. About a month later, he was sentenced to a concurrent term of ten years in prison for a second-
degree burglary that occurred in February 2000, while Mr. Johnson was still only 19 years of age. PSR ¶ 42.ECF No. 59-1 at 11-12; see also ECF No. 60 ("[Defendant] never had a chance from birth to be successful no matter how much he wanted to as a kid . . . [But he] has a story to tell many of the kids today that could keep them from making the same mistakes he has.").
Compared to his actions as a teenager and into his early twenties, Defendant has demonstrated post-sentencing rehabilitation and maturity. "The [G]overnment acknowledges that [Defendant] has taken positive steps while in prison." ECF No. 66 ¶ 23. He is now forty-two years old. Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/mobile/findinmate (last visited Sept. 15, 2022). He maintains contact with family members who remain active in his life and appears to have significant family support. See ECF No. 59-8. Defendant has also maintained a clear disciplinary record for the past few years, with relatively minor infractions while in BOP custody. ECF No. 59-2 at 11-12 (violations prior to 2019 include refusing to work, possessing "Hooch," refusing to obey an order, and being insolent). Defendant's good conduct release date is April 13, 2028, and he has served almost seventy-five percent of his statutory prison term. Id. at 17, 19. Defendant has pursued prison programming courses, vocational training, and has several certificates of completion. Id. at 14; ECF No. 59-9. He has also been on the waitlist for HVAC and welding courses since 2020. Id. at 16. The Court determines Defendant's personal history and characteristics in combination with changes to the legal landscape since his offense justify a reduction in sentence below the amended Guidelines range.
4. Nature & Circumstances of Offense
Finally, the Court evaluates the nature and circumstances of the underlying offense, while keeping in mind the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. § 3553(a)(1), (6). The Government argues the Court should decline to reduce Defendant's sentence because Defendant's offense was serious, and his criminal history leading up to the offense involved "absence from custody, violations of probation, and [Defendant]'s commission of these crimes while he was on parole." ECF No. 66 ¶¶ 22, 23. Defendant, on the other hand, argues the ends of justice have been served in this case, and "any greater sentence would significantly overstate his criminal history, offense conduct, and incorrigibility." ECF No. 59-1 at 11. Defendant contends that given the changes in the legal landscape today, he would face a much lower sentence than similarly situated individuals. Id. at 13. Defendant recognizes his offense was serious, but his "only noted offense conduct was selling cocaine to 'Joe,' and on one occasion receiving two firearms as payment." Id. Additionally, "[f]or his conduct of both stealing the firearms and selling them in exchange for cocaine, 'Joe' was sentenced to 133 months in federal prison." Id. n.10. "[Defendant] is not alleged to have been involved in the theft of the firearms, to have threatened or intimidated anyone with them, or of having engaged in lengthy, frequent, or otherwise substantial drug trafficking." Id. at 13.
The Court agrees with Defendant and concludes serving over fifteen years in federal prison for this offense—two years of which were during a worldwide pandemic—is more than sufficient punishment considering Defendant's unique circumstances. "While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind." Terry, 141 S. Ct. at 1864 (Sotomayor, J., concurring). Defendant is an example of one of the people who have been left behind and the Court now has the opportunity to correct that injustice.
In summary, for the reasons stated herein, the Court determines Defendant is eligible for a sentence reduction. The applicable § 3553(a) factors and intervening changes in law and fact weigh in favor of granting Defendant's Motion for a reduced sentence under FSA § 404(b) and 18 U.S.C. § 3582(c)(1)(B). Defendant was originally sentenced to 300 months' incarceration, which was a seven percent variance below the bottom of his Guidelines range of 322 to 387 months. See ECF No. 37 at 7. Defendant's amended Guidelines range under the 2021 Guidelines is 262 to 327 months and includes the mandatory term for his § 924(c) conviction. See U.S.S.G. § 4B1.1(c)(3). The Court varies below the bottom of Defendant's amended range after considering Defendant's arguments for a reduced sentence. Defendant's non-career offender status if sentenced today, legislative proposals to eliminate the federal sentencing disparity between crack and powder cocaine, Defendant's history and characteristics, the nature and circumstances of his offense, and the need to avoid unwarranted sentencing disparities all outweigh the serious nature of his offense, his criminal and disciplinary history, and any danger Defendant had previously posed to the community when he was originally sentenced.
III. CONCLUSION
In conclusion, Defendant's previously imposed 300-month sentence is reduced to time-served, or 190 months. Defendant further requests that the Court reduce his eight-year term of supervised release down to six years' supervision. Defendant was originally sentenced to eight years of supervised release for his drug offense and a concurrent five years for his firearms offense. ECF No. 37 at 3. The Court denies Defendant's request to reduce his term of supervision with the understanding that in the future the Court may, in its discretion, "terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." 18 U.S.C. § 3583(e)(1). Therefore, Defendant's term of supervision remains at eight years for his violation of 21 U.S.C. § 841(b)(1)(B), and a concurrent term of three years' supervision for his violation of 18 U.S.C. § 924(c). Defendant shall abide by all the standard and special conditions of his supervision as stated in his original Judgment, ECF No. 37 at 3-4. Further, Defendant must report to the USPO in the district to which Defendant is released within 72 hours of release from the custody of the BOP.
For the reasons stated herein, Defendant's Motion to Reduce Sentence - First Step Act (ECF No. 59) is GRANTED.
IT IS SO ORDERED.