United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court in the cases of United States v.
Franklin and United States v. Davis &
Moorehead are identical Motions for Reconsideration
filed by Mr. Franklin (Case No 5:08-cr-50060, Doc. 92), Mr.
Davis (Case No. 5:07-cr-50037, Doc. 129), and Mr. Moorehead
(Case No. 5:07-cr-50037, Doc. 130). All three Motions are
three of these Defendants previously filed Motions to Reduce
Sentence under Section 404 of the First Step Act of 2018.
That statute authorizes federal courts to impose reduced
sentences on defendants who were sentenced for criminal
offenses under statutory penalties that were subsequently
modified by Sections 2 or 3 of the Fair Sentencing Act of
2010. In those Motions to Reduce Sentence, each Defendant
sought a plenary in-person resentencing at which he could
challenge his career-offender designation under the United
States Sentencing Guidelines. The Court denied those Motions
in part, in an omnibus order filed on August 15, 2019.
See United States v. Franklin, 2019 WL 3848946 (Aug.
15, 2019). Specifically, the Court concluded "that
Section 404 of the First Step Act does not contemplate a
plenary resentencing at which a defendant's presence is
required." Id. at *5. Instead the Court opted,
in its discretion, to "conduct these proceedings in a
manner analogous to what would occur if the United States
Sentencing Commission, rather than Congress, had
authorized" this sentencing relief, so as to avoid
certain "potential arbitrary sentencing
disparities." See Id. at *6.
particular process the Court adopted involved two steps:
[F]irst, this Court will recalculate each Defendant's
advisory sentencing range under the United States Sentencing
Guidelines, but only altering those variables which depend on
the statutory penalties that were amended by the Fair
Sentencing Act and made retroactive by the First Step Act.
Then, the Court will decide whether to award each Defendant a
reduction from his previously-imposed term of imprisonment,
but in no event will the Court reduce a Defendant's term
to an amount that is less than the minimum of the
recalculated sentencing range.
Id. (internal citations omitted). Later, the Court
entered separate orders imposing reduced sentences on Messrs.
Franklin, Davis, and Moorehead pursuant to this process. Each
Defendant's term of imprisonment was reduced from 262
months to 188 months. See Case No 5:08-cr-50060,
Doc. 93; Case No. 5:07-cr-50037, Docs. 128, 131. All of these
reduced sentences were at the bottom of their respective
recalculated guideline ranges.
Defendants' Motions for Reconsideration are not seeking
to reargue whether they are entitled to plenary in-person
sentencing hearings or whether they may challenge their
career-offender statuses. Instead they seek permission to
supplement the record with, inter alia, information
about their conduct while at the Bureau of Prisons, and to
argue on that basis for downward variances from their
recalculated guideline ranges under 18 U.S.C. § 3553(a).
The Court agrees that this information is relevant to
determining the extent to which these Defendants'
sentences should be reduced. See, e.g., Id. at
§ 3553(a)(1), (a)(2)(B), (a)(2)(D) (instructing
sentencing courts to consider "the history and
characteristics of the defendant," and "the need
for the sentence imposed ... to afford adequate deterrence to
criminal conduct" and "to provide the defendant
with needed educational or vocational training"). But
since the Court has already sentenced each of these
Defendants at the bottom of their recalculated guidelines
ranges, consideration of this additional information cannot
benefit them any further unless the Court is willing to
consider granting them a variance below those recalculated
Defendants have cited a variety of cases from other districts
around the country in support of their request. This Court
has read all of those cases, and recognizes that many of them
take approaches that differ in various ways from the one this
Court has taken. For example, one of those cases appears to
conclude that Section 404 of the First Step Act authorizes a
plenary, in-person resentencing hearing. See United
States v. Payton, 2019 WL 2775530, at *5 (E.D. Mich.
July 2, 2019). Several of the cases cited by the Defendants
resulted in awards of downward variances from recalculated
guideline ranges. Some downward variances were awarded where
the recalculated guideline range was unchanged from the
original. See, e.g., United States v. Norman, 2019
WL 3296830 (W.D. Mich. July 23, 2019); United States v.
VanBuren, 2019 WL 3082725 (W.D. Va. July 15, 2019);
United States v. Hughes, W.D. Va., Abingdon
Division, Case No. 1:08CR00024-035, Doc. 3698. Others were
awarded even though the recalculated guideline range was
lower than the original. See, e.g., United States v.
Logan, 2019 WL 3391618 (D. Md. July 26,
2019); United States v. Berry, 2019 WL
2521296 (W.D. Mich. June 19, 2019).
clear, this Court agrees that Section 404 of the First Step
Act does not prohibit judges from varying all the way down to
the statutory minimum when imposing a reduced sentence.
Cf. United States v. Valentine, 2019 WL 2754489, at
*5 (W.D. Mich. July 2, 2019) ("The only limits found in
the First Step Act are the statutory minimums of the Fair
Sentencing Act's new thresholds."). This Court has
opted to tether itself to the recalculated sentencing
guidelines not out of a belief that the First Step Act
requires such a practice, but rather out of a belief that
this is the most practicable way to effectuate the policies
undergirding the First Step Act in a fair and consistent
manner. See Franklin, 2019 WL 3848946, at *6 (Aug.
15, 2019) ("This Court is not going so far as to say it
believes Section 404 requires it to conform these
proceedings to the process described in U.S.S.G. §
1B1.10(b). ... But the procedure that the Court has outlined
here is reasonably calculated to accomplish these ends [of
avoiding arbitrary sentencing disparities], and is one this
Court believes it has the discretion to implement.").
Most of the cases cited by the Defendants do not acknowledge
the arbitrary disparities that this Court is seeking to
avoid. The few that do acknowledge them do not seem to be as
troubled by them as this Court is, or at least do not seem to
think that the potential for such disparities informs any
consideration of congressional intent with respect to the
First Step Act. See, e.g., VanBuren, 2019 WL
3082725, at *5 (W.D. Va. July 15, 2019) ("The Government
similarly argues that a variance below the amended Guidelines
range (of life) should not be granted in order to ensure
parity with defendants who were sentenced after the Fair
Sentencing Act and were not eligible for consideration of
sentences below the Guidelines range[.] . . . The Court
declines to follow the Government's suggestion
...."); cf. United States v. Vanzant, 2019 WL
3468207, at *3 n.6 (S.D. Ala. July 31, 2019)
("Additionally, some sentencing disparities are
inevitable when Congress enacts legislation designed to
reduce sentences for a specific class of offenders."
(internal quotation marks omitted)). This Court is not
persuaded by these cases to reconsider its prior ruling that
it would not vary downward from the instant Defendants'
recalculated guideline ranges.
IS THEREFORE ORDERED that the Motions for
Reconsideration filed by Mr. Franklin (Case No 5:08-cr-50060,
Doc. 92), Mr. Davis (Case No. 5:07-cr-50037, Doc. 129), and
Mr. Moorehead (Case No. 5:07-cr-50037, Doc. 130) are all
IS SO ORDERED.
 In Logan, the defendant's
original sentence had also been a downward variance, and the
reduced sentence was calculated to produce a downward
variance proportional to the original one. See 2019
WL 3391618 (D. Md. July 26, 2019). In the instant cases,
Messrs. Franklin, Davis, and Moorehead all originally
received within-guidelines sentences, so this Court did not
have occasion to consider whether it would be proper to award
a proportional downward variance upon resentencing. But this
Court is willing to do so in cases where the original
sentence was a ...