United States District Court, W.D. Arkansas, Fort Smith Division
ORDER
P.K.
HOLMES, III U.S. DISTRICT JUDGE
Defendant
has filed a motion (Doc. 112) to reduce his sentence and for
a resentencing hearing pursuant to Section 404 of the First
Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). The
Government has responded (Doc. 113), agreeing that Defendant
is eligible for a sentencing reduction but arguing that he is
not entitled to a plenary resentencing hearing. Although the
Eighth Circuit has not addressed whether plenary resentencing
is permitted under the First Step Act, the Fifth Circuit held
that defendants are not entitled to plenary resentencing.
United States v. Hegwood, 934 F.3d 414 (5th Cir.
2019), cert. denied, --U.S.--, 2019 WL 4923453 (Oct.
7, 2019).
The mechanics of First Step Act sentencing are these. The
district court decides on a new sentence by placing itself in
the time frame of the original sentencing, altering the
relevant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act. The district court's action is
better understood as imposing, not modifying, a sentence,
because the sentencing is being conducted as if all the
conditions for the original sentencing were again in place
with the one exception. The new sentence conceptually
substitutes for the original sentence, as opposed to
modifying that sentence.
Id. at 418-19 (holding that the older version of the
career offender enhancement still applied on First Step Act
resentencing).
Defendant
pled guilty on March 11, 2010, to aiding and abetting the
knowing possession with intent to distribute of more than 50
grams of a mixture or substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii)
and 18 U.S.C. § 2. He was sentenced on August 6, 2010,
to a term of imprisonment for 175 months and a term of
supervised release of 5 years. The calculations in his
presentence investigation report relied on a statutory
mandatory minimum term of imprisonment of not less than 10
years and a statutory maximum term of imprisonment of life,
and calculated a guidelines-recommended range of imprisonment
262 months to 327 months and term of supervised release of 5
years. Had the Fair Sentencing Act of 2010 determined
Defendant's statutory sentencing range for the charged
quantity of controlled substances, the statutory sentencing
range would have been not less than 5 years and not more than
40 years. 21 U.S.C. § 841(b)(1)(B)(iii). Defendant's
statutory range of supervised release would have been not
less than 4 years and up to life. 21 U.S.C. §
841(b)(1)(B). Under the sentencing guidelines in effect at
the time of his sentencing, Defendant still would have been a
career offender, but because his maximum term of imprisonment
was 40 years, rather than life, and because he received a
3-level downward adjustment for acceptance of responsibility
under USSG. § 3E1.1, his offense level would have been
adjusted to 31. United States Sentencing Commission,
Guidelines Manual, § 4B1.1(b)(B) (Nov. 2009).
With an offense level of 31 and a criminal history category
of VI, Defendant's guidelines-recommended range of
imprisonment would have been 188 months to 235 months.
Id. at § 5A. His recommended range of
supervised release would have been not less than 4 years and
not more than 5 years. Id. at § 5D1.2(a)(1),
(c).
At
sentencing, this Court[1] varied downward from the
guidelines-recommended range of imprisonment and imposed a
sentence of imprisonment that was approximately 2/3 the
length of the minimum guidelines range, and a statutory
minimum term of supervised release. “[P]lacing itself
in the time frame of the original sentencing, altering the
relevant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act” and imposing a “new
sentence [that] conceptually substitutes for the original
sentence, as opposed to modifying that sentence, ” the
Court will impose a sentence that is approximately 2/3 of the
length of the guidelines-recommended minimum of 188 months
and a statutory minimum term of supervised release.
IT IS
THEREFORE ORDERED that Defendant's motion (Doc. 112) is
GRANTED IN PART AND DENIED IN PART.
IT IS
FURTHER ORDERED that the sentence imposed on Defendant is
amended as follows: Roshaun D. Terry is sentenced to a term
of imprisonment of 125 months, to run consecutively to any
undischarged term of imprisonment with the Arkansas
Department of Corrections, in Sebastian County Circuit Court
Case #CR08-153, #CR04-831A, and #CR04-544C. Upon release from
imprisonment, Mr. Terry is to be placed on supervised release
for a term of 4 years. Defendant's sentence otherwise
remains as originally imposed. An amended judgment will be
entered separately.
IT IS
ORDERED
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Notes:
[1] Hon. Robert T. Dawson.