United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on the defendant's pro
se motion for a reduction of his criminal sentence
following the retroactive application of the Fair Sentencing
Act of 2010, Pub. L. 111-220; §§ 2-3, 124 Stat.
2372, 2372 (2010), as set forth in the First Step Act of
2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222
(2018) (Doc. 66). The Court construes this as a motion
pursuant to 18 U.S.C. § 3582(c)(1)(B). Counsel, who has
appeared for the defendant on a voluntary basis, has moved to
withdraw on the basis that she can make no non-frivolous
arguments in support of a request for reduction (Doc. 72).
See Anders v. California, 386 U.S. 738, 744 (1967).
The Government has responded that it has no objection to
counsel's motion (Doc. 74). The defendant has not
responded, although he was given an opportunity to do so.
defendant pled guilty to three counts of distribution of less
than 5 grams of crack cocaine. Because the Government filed
an information pursuant to 21 U.S.C. § 851 alleging two
prior drug felonies, the statutory sentencing range for this
offense as charged was no more than 30 years in prison.
See 21 U.S.C. § 841(b)(1)(C) (2003). At
sentencing, the Court adopted the presentence investigation
report's relevant conduct finding of 14.18 grams of crack
cocaine, see PSR ¶ 15, which under U.S.S.G.
§ 2D1.1 (2003) yielded a base offense level of 26. His
offense level was reduced by 3 points under U.S.S.G. §
3E1.1(a) and (b) because the defendant accepted
responsibility for his crime for a total offense level of 23.
However, the Court further found that the defendant was a
career offender under U.S.S.G. § 4B1.1. Because the
statutory maximum sentence for the defendant's offense of
conviction was 30 years, the base offense level applicable
under U.S.S.G. § 4B1.1(b) was 34, also reduced by 3
points under U.S.S.G. § 3E1.1(a) and (b) for acceptance
of responsibility, yielding a total offense level of 31.
Because the total offense level based on U.S.S.G. §
4B1.1 was greater than the total offense level based on
U.S.S.G. § 2D1.1, the Court applied the total offense
level based on U.S.S.G. § 4B1.1(b). Considering the
defendant's criminal history category of VI, established
by his career offender status under U.S.S.G. § 4B1.1 and
his criminal history points under the sentencing table in
U.S.S.G. Chapter 5, Part A, this yielded a sentencing range
of 188 to 235 months in prison. The Court imposed a sentence
of 235 months.
defendant now asks the Court to reduce his sentence in light
of § 404 of the First Step Act. Section 404 allows the Court
to reduce a defendant's sentence for a crack cocaine
offense, but only if the Court had imposed that sentence
before another statute-the Fair Sentencing Act-lowered the
statutory sentencing range for that crack cocaine offense.
First Step Act, § 404(b). In essence, the First Step Act
retroactively applies the Fair Sentencing Act's lower
statutory sentencing ranges and allows the Court to bring
past sentences into line with the lower ranges. The authority
to reduce a sentence applies only to (1) federal offenses (2)
committed before August 3, 2010, the effective date of the
Fair Sentencing Act, (3) for which the Fair Sentencing Act
changed the statutory penalty range, i.e., certain
crack cocaine offenses. See First Step Act, §
404(a). Whether to reduce a sentence is at the discretion of
the Court and is not required by the First Step Act. First
Step Act, § 404(c). In sum, the Court now may, but is
not required to, reduce a defendant's sentence if
application of a statutory range changed by the Fair
Sentencing Act would have resulted in a sentence lower than
the defendant's original sentence.
Court turns to the specifics of the defendant's case. The
defendant's conviction is not the type of conviction
covered by § 404 of the First Step Act. While he
committed the federal offenses before August 3, 2010, the
Fair Sentencing Act did not modify the applicable statutory
sentencing range. As noted above, at the time of the
defendant's conviction, the statutory range for his
offense was no more than 30 years. 21 U.S.C. §
841(b)(1)(C) (2003). Section 2 of the Fair Sentencing Act did
not lower that statutory range. Even under the Fair
Sentencing Act, a crime charging less than 5 grams of crack
cocaine and involving 14.18 grams of crack cocaine as
relevant conduct still falls under 21 U.S.C. §
841(b)(1)(C) (2010), where the statutory sentencing range for
a defendant with a prior drug felony is still no more than 30
years. Thus, the defendant is not eligible for a sentence
reduction under the First Step Act.
this reason, the Court DENIES the
defendant's pro se motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(1)(B) based on
the First Step Act's retroactive application of the Fair
Sentencing Act (Doc. 66) and GRANTS defense
counsel's motion to withdraw (Doc. 72).
IS SO ORDERED.
 Section 404 of the First Step Act
provides in full:
(a) DEFINITION OF COVERED OFFENSE.-In this section,
the term “covered offense” means 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 (Public Law 111-220; 124 Stat. 2372), that was committed
before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.-A court that
imposed a sentence for a covered offense may, on motion of
the defendant, the Director of the Bureau of Prisons, the
attorney for the Government, or the court, impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of
2010 (Public Law 111-220; 124 Stat. 2372) were in effect at
the time the covered offense was committed.
(c) LIMITATIONS.-No court shall entertain a motion
made under this section to reduce a sentence if the sentence
was previously imposed or previously reduced in accordance
with the amendments made by sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372)
or if a previous motion made under this section to reduce the
sentence was, after the date of enactment of this Act, denied
after a complete review of the motion on the merits. ...