United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on the defendant’s 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.
168). The Court construes this as a motion pursuant to 18
U.S.C. § 3582(c)(1)(B).
defendant pled guilty to one count of conspiracy to
distribute cocaine (Count 2), one count of distribution of
marijuana (Count 4), and two counts of distribution of
cocaine (Counts 5 and 6), all of which were committed before
2010 (Doc. 70). Because of an information under 21 U.S.C.
§ 851 alleging one prior felony drug conviction (Doc.
68), the statutory sentencing range for Counts 2, 5, and 6 as
charged was no more than 30 years and for Count 4 as charged
was no more than 10 years. 21 U.S.C. § 841(b)(1)(C)
& (D). Because the defendant’s relevant conduct was
at least 10, 000 kilograms but less than 30, 000 kilograms of
marijuana equivalent, and because he was sentenced before
Alleyne v. United States, 570 U.S. 99 (2013)
the Court found he was subject to a statutory minimum of 20
years on Count 2. 21 U.S.C. § 841(b)(1)(A)(vii). The
Court imposed a sentence of 360 months in prison on Counts 2,
5, and 6, and a sentence of 120 months in prison on Count 4.
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-modified 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 convictions are not the type of
convictions covered by § 404 of the First Step Act, so
he is not eligible for a sentence reduction. While he
committed the federal offenses before August 3, 2010, the
Fair Sentencing Act did not modify the applicable statutory
sentencing range for the defendant’s crimes. On the
contrary, it only changed the statutory penalty range for
certain crack cocaine offenses, Fair Sentencing Act, §
2(a) (codified at 21 U.S.C. § 841(b)(1)(A)(iii) &
(b)(1)(B)(iii)), and the defendant was not convicted of any
crack cocaine offense. To the extent his relevant conduct
included crack cocaine and caused his statutory maximum on
Count 2 to increase to 20 years pre-Alleyne, that
statutory minimum was independently justified by the 6.6
kilograms of powder cocaine included in his relevant conduct.
See 21 U.S.C. § 841(b)(1)(A)(ii)(II). In other
words, his statutory range would have been the same both
before and after the Fair Sentencing Act due to his powder
cocaine relevant conduct. Consequently, the Fair Sentencing
Act did not modify the applicable statutory penalties as
contemplated by § 404(a) of the First Step Act. For this
reason, the First Step Act does not authorize a reduction in
the defendant’s sentence.
the Court DENIES the defendant’s
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. 168).
IS SO ORDERED.
 Alleyne held that, for
relevant conduct to raise the statutory minimum sentence, it
must be admitted by the defendant or found by a jury beyond a
reasonable doubt. Id. at 108; United States v.
Austin, 806 F.3d 425, 433 (7th Cir. 2015).
Alleyne overruled Harris v. United States,
536 U.S. 545 (2002), which held that factors increasing a
statutory minimum could be found by the court by a
preponderance of the evidence. Alleyne, 570 U.S. at
 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