CLERK'S OFF@CE U.S. DkST. COURTA7 ROANOKE, VA

FILED

îb'kjb.6 j J gjjjIN THE UN ITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WRGINPLLY. uatsy xsoçHARMSONBURG DIWSION 1 owo ogycu , ,:

UN ITED STATES O F AM RRICA Case N o. 5:06-CR-14

V.

KAM AT, N IGEL W ILLTAM S,D efendant

By: H on. M ichael F. U tbansldChief United States District Judge

M EM OM N DUM OPIN ION

Kam al Nigel W illiams, represented by cotm sel, ûled modons to reduce his sentence

putsuant to Secdon 404$) of the First Step Act of 2018. ECF Nos. 235, 245. He asks the,

'

cout't to zeduce his current sentence of 322 m onths to 160 months, wllich would result in a

f ' d The overnment asserts that W illiams is ineligible for considezadonsentence o tlme serve . g1

of a reduction in lnis sentence, and in the altetnadve, that if he is eligible for consideradon, a

flxtther teducdon of his sentence is not watranted. For the reasons set forth below, the coutt

will GRAN T W illiam s's request in part and M ODIFY bis sentence to a total of 216 m onths,

to be followed by a 4-year term of supervised telease.

BACKGROUND

On October 4, 2006, W illiams enteted into a plea agreement in wllich he pleaded g1.1111

to one count of conspiring to distdbute 50 grams or more of cocaine base and 500 grams oz

more of powder cocaine in violadon of 21 U.S.C. j 846, and one count of possession of a

Stent.m in futtherance of a Htn'g trafûcldng violaéon. ECF Nos. 3, 95. ln exchange, the

goveznm ent agreed to disnniss the remnining counts. ECF No. 95. On the same day, W illiams

pleaded /1111 in accotdance with the plea agreement. ECF Nos. 94-96.

On the drug chazge, W illiam s faced a stamtory sentencing range of 10 years to life. 21

U.S.C. j 841(b)(1)(A) (2002)9 ECF No. 236. On the possession-of-a-flrentm chaêge, he faced

a stattztory sentencing range of 5 years to life, to be imposed consecuévely to the flrst sentence.

18 U.S.C. j 924(c)(1)(A)(i) (2003). Accotcling to the Presentence lnvestigadon Report (<TSR''),

W illiams was responsible for 889 grams of cocaine base. ECF No. 236. Under the sentencing

guidelines, that clmzg quandty tesulted in a base offense level of 36. He teceived a 3-point

decrease for acceptance of responsibility for a subtotal offense level of 33. ECF No. 236 at 8.

The PSR also states, mistakenly, as discussed below, that W ilb m s's offense of

convicion was a violadon of 18 U.S.C. j 9221 and that he had three previous convicdons

for a violent felony or a setious dtnlg offense, or both. Therefore, according to the PSR, he

was subject to an enhanced sentence under 18 U.S.C. j 924($ and was considered an Atmed

Careet Criminal. U.S.S.G. j 4B1.4(a). ECF 236 at 8. The priot felony convicdons that qualilied

bim as an ntmed career ctiminal were possession with intent to distdbute cocaine, disttibudon

of cocaine base, and possession with intent to distribute matjuana. ECF No. 236 at 8. I-Iis

offense level as an armed cateer criminal was 37, decreased by 3 points for acceptance of

responsibility to 34. U.S.S.G. j 4B1.4$)(2); ECF No. 236 at 8. With his total offense level of

34 and llis criminal history of VI, his guideline range was 262 to 327 months. U.S.S.G. Ch. 5,

Pat.t A; ECF No. 236 at 19.

On Decembet 19, 2006, W illiams was sentenced to 262 months on the drug count and

a m andatory consecudve 6o-month term on the flrentm count, for a total of 322 months. In

2

addition, he was assessed a s-year term of supervised release. ECF No. 116. He has served

approximately 146 months and llis projected release date is October 22, 2030. ECF No. 237.

W ilb ms seeks relief under the First Step Act. He argues that he is eligiblc for relief and

that this court has discredon to reduce llis sentence to 160 months, wlaich will result in his

imm ediate release. The goveznment countets argues that because the offense itw olved a Htnxg

quandty ovet the tevised thteshold, W illiom s is not eligible fot telief tm der the First Step Act.

Next; the government concedes that it was error to classify W illiams as an armed career

criminal, but asserts that the error cannot be addressed in a modon for relief under the First

Step Act and that in any event, the correct guideline was applied to W ilb m s. Finally, the

goveznment urges that if the coutt fmds that W illiams is endtled to a reduced sentence, any

sentence below the cateet offender guideline zange of 188 to 235 m onths on the clfnlg charge

and a 4-yea.r pedod of supervised release is not warranted.

ANALYSIS

1. M istake in PSR

Ttuning & st to the mistake in the PSR, the pazdes agree that the probation ofûcer

incorrectly stated in the PSR that Williams qualifkd as an Armed Cateer Ctiminal subject to

aq enhanced sentence under 18 U.S.C. j 924(e). ECF No. 236 at 8. Under the guidelines, an

frAtmed Career Ctiminal'' is a defendant who is subject to an enhanced sentence under 18

U.S.C. j 924(e) and that statute applies to a person who violated 18 U.S.C. j 922k) and has

thtee previous convictions for a violent f'elony, serious dt'ug offense, or 130th. W ilb ms was

3

not convicted of violaéng j 922/) so he could not have been designated an Armed Career

Cfqminal.

The government argues that the First Step Act does not authorize courts to address

errors in PSRS, does not open the door to habe>s clsims, and does not give autholizadon for

the court to reconsider the guidelines calculadons. In Urlited States v. Heovood, 934 F.3d 414

(5th Cir. 2019), the Fifth Citcuit Coutt of Appeals held that when a court detetmines that a

defendant was convicted of an offense coveted -by the First Step Act and thus is eligible foz

consideradon of a sentence m ocv cadon under the First Step Act, the couzt should consider

only the changes m andated by the Fair Sentencing Act and not other changes that have been

made since the defendant was convicted. J-dx at 418. In He ood, if new caselaw had been

applied to the defendant's previous convicdon, he no longet would have been considered a

cateet offendet. J.t.k at 416. See also United States v. Dtake,No. 1:07-CR-53-1, 2019 WL

5213927 at *5 (N.D. W .Va. October 16, 2019) rfecdon 404 gof the flrst Step Act), by its own

terms, does not authorize coatts to reduce sentences based on subsequent changes of law

other than the retroacdve application of secdons 2 and 3 of the Fait Sentencing Act.'')

H owever, courts have disdnguished between simadons whete a defendant seeldng a

modiûcadon of llis sentence based on the First Step Act also seeks modihcadon based on a

change in caselaw, such as it'l He ood, and situadons where a mistake was made in the

original sentence. In United States v. Black, 388 F.supp.3d 682 (E.D. Va., June 7, 2019), a, '

defendant sought relief under the First Step Act and the pardes agreed that the defendant was

wrongfully labeled a career offender when he was sentenced oziginally. Black, 388 F.supp.3d

4

at 688-689. The defendant had objected to the classificadon prior to sentencing and the court

had overruled the objecdon. J-C.L The United States atgued that 18 U.S.C. j 3582 pzoceeclings

were limited in scope and that tlze court had no occasion to address the issue of whetheê the

defendant had been erroneously categodzed as a career offender itz his original sentencing,

where he had the oppormnity on appeal and via two 28 U.S.C. j 2255 modons to address the

issue. J-dx at 689. The defendant countered that the First Step Act directed the coutt to conduct

a çfcomplete teview on the merits'' and that doing so wotlld allow the collt'f to consider its

prior sentencing error by recalculating the guidelines. 1d. (cie g the First Step Act, j 404; Pub.

L. No. 115-391, 132 Stat. 5194, 5222).

The cout't concluded that it could not T<igzloze an error of this magrlitudey'' plrticularly

where the defendant had objected to the cateet offender enhancement before sentencing and

appealed a related challenge to llis career offender stattzs. Lda ffAllowing the procedutal posture

of this case to overnm an individual's liberty unde= ines the integtity of the Court system and

the vdue society places on judges to get tlnings right'' ida The court flzrfher found that the

Sentencing Glzidelines and the First Step Act do not requite a court to continue applying an

erroneous gaidelines range based on a naiscalculated cHminal history, especially when a

defendant objected to the sentencing enhancement before the inidal sentencitlg. J.i at 690.

In the instant case, at the sentencing hentitng W illiam s's counsel stated that she had

reviewed the PSR and did not object to it. When the coutt made its Snclings, it did not make

an explicit fncling that W illiam s was an Armed Career Criminal under the statute, but recited

that lnis total offense level was 34, he had a ctiminal lnistoly category of W , and llis guidelines

5

zjtnge was 262 to 327 m onths, plus a consecudve 6o-m ont1a term on the firelt'm charge. ECF

N o. 220 at pp. 5-6. The Snrling that he had a total offense level of 34 was consistent with the

PSR designadon of lnim as an Atmed Career Criminal, but also was consistent with a fincling

that he was a career offender under the guidelines. In the judgment, there was no ûncling that

williams violated j 922(g), although in the statement of zeasons, the cpb.t't adopted the PSR

without change, presumably with its mistaken asserdon that Williams had violated j 922($.

ECF No. 117 at 1.

This case differs from Black in that no objecéon was made to the PSR and Williams

did not flle a ditect appeal or seek collateral zeview. Nevertheless, the pardes agtee that it was

a mistake to ûnd that his convicéon was aviolation of j 922 (g) and designate him as an At-med

Career Ctiminal for ptuposes of U.S.S.G. j 4B1.4(a), and the snme consideradons at issue in

Black apply here. It serves no pum ose to pem etuate a rnistake in the nsme of consistency.

Indeed, doing so would only m ean that the court was consistently wrong. W illiams did not

violate j 922(g) and for a cotut to make a second fmding that he did would not only be

incortect, but unjust. Therefore, the coutt will not considet Wiltiams to be an Armed Cateet

Criminal for pum oses of exlmining his pzevious sentence under the Fitst Step Act.

II. First Step Act

At the time Wilbms was sentenced, a violadon of j 841(a)(1) catried a mandatory

minimum sentence of 10 yeats and a maximlxm sentence of life imprisonment if the offense

involved more than 50 grams of cocaine base, and a penalty range of 5 to 40 years if the

offense itwolved more than 5 gtams of cocaine base. 21 U.S.C. j 841(b)(1)(A) and (B) (2006).

6

In 2010, the Fai.r Sentencing Act was passed, and Secdon 2 of the Act reduced penaldes foz

offenses invole g cocaine base by increasing the threshold Htnxg quandties required to ttigger

mandatory minimum sentences under 21 U.S.C. j 8419$(1). Fair Sentencing Act of 2010, Pub.

L. No. 111-220, j 2, 124 Stat. 2372 (2010). Cutrently, in order to trigger the lo-yeats-to-life-

sentencingzange, the offense mustinvolve moze than 280 grams of cocaine base, and to ttigger

tlae 5-to-40-yeat sentencing tange, the offense must involve mote than 28 gtams of cocaine

base.

The First Step Act was passed on December 21, 2018. Secéon 404 of the act pe= its

a court, upon moéon of the defendant or the government, or upon its own m odon, to impose

a reduced sentence for certain offenses in accordance with the Fair Sentencing Act of 2010, if

suçh a teducdon was not previously granted. Offenses qualify for the reducdon if they were

committed before August 3, 2010 and carry the statutory penaldes wlzich wete modihed by

secdon 2 or 3 of the Fair Sentencing Act of 2010. First Step Act of 2018, Pub. L. No. 115-

015, 132 Stat. 015 (2018).

The goveznment argues thateven though W illiam s commitled llis offense before

August 3, 2010, and even though his offenses catry the statutory penaldes which were

modihed by Secdon 2 or 3 of the Fair Sentencing Act, that he does' not qualify for a sentence

teducdon. The government argues that it is the Hlnlg weight foz wlnich a defendant is held

responsible and not the Hnag weight for which he was convicted that dete= ines eligibility for

First Step Act relief and that W illiam s's dtnxg quandty in the PSR makes him ineligible. In the

altetnadve, the govetnment contends that even if W illisms is eligible fot a modifkation of llis

7

sentence, the court should exercise its discredon and decline to reduce the sentence because

the applicable guideline range did not change and the guideline range is reasonable in lkht of

W illiams's crim inal bistory and the citcum stances of the offense.

A. Drug W eight

The goveznment assetts that whether a defendant is endtled to zelief under the First

Step Act depends on the amount of cocaine base for which he was found responsible itl the

PSR, rather than the amount for which he was indicted and convicted. Because W illiam s was

found responsible for 889 gtams of cocaine base in the PSR, which would make him subject

to the 21 U.S.C. j 841(a)(1)(A) penaldes, the government atgues that he is,not endtled to relief

under the First Step Act.

W illiams responds that it is the clnlg weight charged in the indictment and not the clfalg

weight in the PSR that detet-mines eligibility for First Step Act relief. In A rendi v. New

Jersey, 530 U.S. 466 (2000) and Alle ne v. United States, 570 U.S. 99 (2013), the Supreme

Cout't established that the Htnxg weight is an elem ent of the offense and any fact that increases

a mandatory minimllm penalty is an elem ent thatm ust be charged in an indic% ent and proved

to a jury beyond a reasonable doubt. Under those two cases, if Williams were sentenced today,

llis sentence would be based on distribudng 50 grarhs or m ore of cocaine base, and not 889

rnm s of cocnine base.B

In A rendi, the Suprem e Colzrt held that the Sixth Am endment to the Consétudon

requires that any fact that increases the penalty for a ctime beyond the prescribed stattztory

mnximmn, other than the fact of a prior convicdon, must be submitted to a jury and pzoved

beyond a reasonable doubt. In Alle ne, the Couzt applied A rendi to the federal mandatory

minimum and m aximum sentencing scheme and held that because mandatory minimum

sentences increase the penalty for a crime, any fact that incteases the mandatory minimum is

an element of the ctime that must be subrnitted to the jury. Lda at 116 (overmling Harris v.

Urlited States, 536 U.S. 545 (2002)).

Although neither A rendi nor M-- .-e-ys.t are retroacdvely applicable on collateral

reviem l m any cotuts, includipg this one, have held that the decisions must be considered when

a cout't examines a sentence under the First Step Act. See United States v. O her, Crim. No.

00-323-09, 2019 WL 3297201 at 814 (Q.N.J. July 23, 2019) (noting that comts have

consistently tejected the nodon that Congress legislates without regard to consdtudonal

norms); United States v. Simons, No. 07-CR-00874, 2019 WL 1760840 at *6 (E.D.N.Y. Apr.

22, 2019) (ciéng Alle ne qnd ânding that statutory penalties are detetmined by facts submitted

to a grand jury, trial jury, or established by a guilty plea while Sndings by a judge may be used

to detrrnnine a sentepce Nvithin the statutory penaldes and cannot change ffthe mandatory

minimum sentence now applicable'); knited States v. Dodd, No. 3:03-CR-18-3, 2019 WL

1529516 (S.D. Iowa, Apr.. 9, 2019) (finding in a First Step Act case tlpt <f1#)0th A rendi and

Alle ne are bincling on tbls Court for sentencings held todap'); United States v. Davis, No.

07-CR-245(S)(1), 2019 WL 1054554 (W.D.N.Y. Mar. 6, 2019), a , jeal docketed, No. 19-874

(2nd Cir. Apr. 5, 2019) rfgfjt is the stattzte of convicéon, not acmal condùct, that controls

1 See United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001) joining other circuits in fincling thatApprendi does not ypply retroacdvely to cases on collateral review); and United States v. Stewart, 540FedAppx. 171 (4th Cir. 2013) @er fnlriam) (noting'that Alle ne has not been made retroacdvely applicable tocases on collateral review).

9

eligibility under the First Step Act.'); United States v. Stanback, 377 F.supp.3d 618, 623 (W.D.

Va. May 2, 2019) û'oining other coutts in ûnding that A tendi and Alle ne are apphcable in

the context of the First Step Act); see also United States v. La erre, No. 5:02-CR-30098-3,

2019 WL 861417 (W.D. Va. Feb. 22, 2019) (relyingwithout discussion on chatged Hmagweight

tathet than PSR weight to hnd defendant eligible fot relief).

Alle ne made clear that in ordet to pteserve a defendant's Sixth Amendment right to a

jtlty ttial, any fact that increases the stataztory mandatory minimum sentence is an element of

the crime which must be submitted to the juty or pleaded to by the defendant. Alle ne, 570

U.S. at 116. The court in W illiams's case found him g11111 of conspitacy to distdbute and

possess with intent to distribute 50 gtam q or more of cocaine base, which is the am ount to

which he pleaded guiltj. ECF No. 116. Under Alleyne, this cotut is not free to ignore that

hncling and impose a penaltv based on 889 gpms of cocaine basç rpfereqqed in the PSR. Thus,

thi? court fnds that the appropdate Htnxg quandty to be considered under the First Step Act is

50 grams of cocaine base.

B. Discretion of the Court

The government argues that if the court finds W illiams eligible for consideradon under

the Fitst Step Act, it should exercise its discretion to deny lnim relief in lkht of the dtug weight.

It clnims that if W illiams had been prosecuted after passage of the Fair Sentencing Act, he

would have been subject to prosecudon for possession of at least 280 grams of cocaine base,

making him eligible for the lo-years-to-life sentencing range found in 21 U.S.C. j 841$)(1)(A).

10

Nearly all other (Iistrict courts, inclucling this one, have êejected the nodon that a couzt

should engage in (<a series of hypotheticals about what might have happened had aspects of

the case been fundamentally altered.'' Dodd, 2019 W L 1529516 at *2. See also United States

v. Thom son, No. 1:05-CR-4040403, 2019 WL 4040403 at *7 (W.D. Pa. August 27, 2019)

rfBngaging in a hypotheécal assessment of how a defendant might have been chazged and

how a iinding of guilt would have come about is ftaught with conjectate and tefiects an

approach that is contrary to the sound admitaistraéon of l'ustice.''); United States v. Paulino,

No. 03-CR-0274, 2019 WL 2437214 at *5 O .N.M. June 11, 2019) (fincling court should not

speculate about what the prosecutoz could have charged ot the offense to wizich a defendant

cotzld have pleaded if the Fait Sentencing Açt had been in place when he committed the

offense); Stanback, 377 F.supp.3d at 624 (declining to speculate on how defendantwould have. 1. .

been chatged and whether he would have been convicted if the Fair Sentencing Act had been

in effect at Hme he was convicted); United States v. Pierre, 372 F.supp.3d 17 O .R.I. Apt. 5,

2019) Solding that in determining eligibility under the Fitst Step Act, court should look to

whether the offense of conviction was modified by the Fait SentencingAct of 2010 and should

not dtlve into the pardculars of the record to detetvnine how the defendant committed the

offense qf convicdon or how the facts would haye hypotheécally affected the qhatges brought

under the new stattztory scheme); but see United States v. Ha nes, No..8:08-CR-441, 2019 WL

1430125 (D. Neb., Mar. 29, 2019) a ea1 docketed, No. .19-1701(8th Cir. Apt. 4, 2019)

(denying zelief under the Fitst Step Act after fincling that if the stamte had been in effect at

the :me defendant was indlcted, he would have been charged with amount of Hnlgs foz which

the PSR said he was responsible).

W hile it is possible that the goveznment would have pzoceeded against W illiam s under

18 U.S.C. j 841$)(1)(A), it also is possible that it would have chosen not to do so. The

goveznm ent could have determined that the evidence was insufhcient to pzove the quanéty of

cocaine base beyond a teasonable doubt, ot if W illiams wete indicted on that amount, the

pardes naight have entered into a plea agreement where W illiam s pleaded to less than 280

gram s of cocoine base. The retroacdve assllmption suggested by the government simply is too

speculadve a basis on wlaich to dete= ine W O am s's eligibility for a sentence reduction. Thus,

this court dechnes to assum e that W illiams would have been charged and convicted of

possessing more than 280 grams of cocaine base if the Fai.r Stntencing Act had been in effect

at the time he was convicted.

The government Flztther argues that a reducéon in W illiams's sentence would

consdtute an unjusésed windfall to him based upon the date of llis prosecudon and offends

the need to avoid unwarranted sentence dispariées among similarly situated offenders. Tlzis

argument is based on the fact that in cases brought after the passage of the Fait Sentencing

Act but prior to Alle ne, judes were asked to make quandty determinadons based on that act's

new thresholds for pum oses of establishing applicable stattztory m avimums, and courts cotzld

and did impose higher statm ory minimum s based on theit own conclusions tegatding Hfnng

quandty.

12

The governm ent appeazs to be azgaing that this couzt should ignoze lnoth the plain

language of the First Step Act regarcling who is eligible for a sentence reducdon as well as the

holding in M e ne because other defendants sentenced within that tllree-yea.r window may

have been subject to longer statutorsminimllm sentences. While the cotzrtis aware of the need

for consistent sentences lmong

consdtazdonal precedent. As discussed above, this court hnds that the First Step Act applies

to W illiams and inds that it is compelled by Alle ne to look only at the quantity of Hnlgs for

defendants, it is not fzee to ignore eithe.r the law or

wlzich W illiams was indicted and found gtttl' ty when determ ining whether he is enétled to a

sentence reducdon. Accordingly, this court will not refrain from modifpn' g W o am s's

sentence under dae Fkst Step Act because odaer defendants naay have been sentenced

differently.

C. Applying the First Step Act to W illiam s

(1) Career Offender Designation

The government argues that even though the PSR incorrectly classified W illiams as an

At-med Career Ctim inal, his base offense level was ptoperly calculated to be a 37 because his

offenses also support a fnding that he is a career offender under the guidelines that were

applicable to lnim at the tim e. Tlais is because when he was sentenced, llis conviction fot 50

gtams of cocaine base cattied a maximum penalty of life undet 21 U.S.C. j 841$)(1)(A), and

the PSR identifed three ptior felony conttolled substance offenses as defned by U.S.S.G.

j4B1.2 As a career offender facing a life sentence, U.S.S.G. j 4B1.1 would have established a

base offense level of 37, reduced by 3 points of acceptance of êesponsibility. W ith a ctiminal

llistory of VI, his gaidelines range would have been 262-327 months. U.S.S.G. Ch. 5 Pt. A.

W illiams concedes that he could have been designated a career offender because the

Pslkidenti:ed thtee prior conttolled substance offenses, but nevertheless argues that the cout't

should disregatd the cazeer offendet calculadons because the PSR did not explicitly designate

him a career offender. W hile it is true that the PSR did not make an explicit finding that

W illiams was a cateer offendez under the gaidelines, the guidelines calculadon includes an

implicit fincling that he was a career offender.

As pat't of the mistaken Atvned Career Ctiminal fincling, the PSR cited U.S.S.G. j

4B1.4(b) (2006), which provides in zelevant part that the offense level for an atmed cateer

cHminal ffis the gteatest of (1) the offense level applicable from Chaptets Two and Three or

(2) the offense level fzom j4B1.1 (Career Offender) if applicable.'' The PSR then found the

offense level to be 37, which resulted from applying the career offendez guideline to W ilb m s's

j 841$)(1)(A) conviction. ECF No. 236. The PSR could not have arrived at that base offense

level absent a hncling that W itliams was a career offender. Therefore, even though the PSR clid

not explicitly find that W illiams was a career offender, the court concludes that it made the

finding implicitly and WiII not disregard the career offendez calculation in the PSR.

W illiams also argues that the 1aw has changed since he was convicted and that if he

were sentenced today, llis prior convicéons would no longer serve to make him a career

offender. The guidelines classify a career offender as (1) a defendant who was at least eighteen

years old at the time the defendant committed the instant offense; (2) the instant offense of

14

convicdon is a felony that is eithez a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prio.r felony convicdons of either a crime of violence or a

controlled substance offense. U.S.S.G. j 4B1.1(a). The tet'm (fcontrolled substance offense'' is

defined as follows:

an offense undet federal ot state law, punishable by imprisonm ent for a termexceeding one yeat, that prohibits the manufacmre, imporq export, disttibudon,or dispensing of a conttolled substance (or a counterfeit substance) or thepossession of a conttolled substance (ot a counterfeit substance) w1t11 intent tomanufacture, import, exporq distribute, or dispense.

U.S.S.G. j 4B1.2(b).

W illiams's instant offense of conviction is conspiracy to possess w1t1,1 the intent to

distribute a controlled substance in violation of 21 U.S.C. j 846. The Commentary to U.S.S.G.

j4B1.2 at n. 1 states that for purposes of the guideline, dTfcrime of violence' and fcontrolled

substance offense' include the offenses of aicling and abetting, conspidng, and attempting to

commit such offenses.'' Thus, under the commentary, W illiams's offense of conspiracy to

possess with the intent to disttibute was rightfully consideted a controlled substance offense.

Williams cites to three recent cases which he argues reject the inclusion of ffconspiracy''

in the definidon of ffcontrolled substance offense:'' United States v. W instead, 890 F.3d 1082

(D.C. Cit. 2018); United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); and United

States v. Norman, 935F.3d 232 (4th Cit. Aug. 15, 2019). In Norman, the defendant was

convicted of possession of a firearm and ammunidon by a felon, in violadon of 18 U.S.C. jj

9221 (1), 924(a)(2), and 924(e). When calctzladng the defendant's base offense level, the PSR

included a six-level enhancement under U.S.S.G. j 21c .1(a)(4)(A) on the basis of a prior

15

convicdon for conspiracy to possess with intent to distribute coc/ine and cocaine base under

21 U.S.C. j 846. J.i at 235. On appeal, the defendant challenged the guidelines enhancement

and the Fourth Citcuit applied the categodcal approach to dete= ine whether the defendant's

predous conspiracy convicdon qualiâed as a pzedicate offense for pum oses of establishing

that he had a prior (fconttolled substance offense.'' Norman, 935 F.3d at 237.

The court & st found that an overt act was a required element of generic conspiracy.

J.z (citing Urzited States v. Mccolblm, 885 F.3d 300, 338 (4t.h Cir. 2018)). The court then noted

that it is undisputed that ffconspiracy'' under j 846 does not reqllite an overt act. Id. at 237-

238. Therefore, the cotut concluded that conspiracy under j 846 ctiminalizes a broadet range

of conduct than that covered by generic conspiracy and carmot serve as a ptedicate offense.

f'We therefote hold that a fconspizacy' convicdon under j 846 is a categorical mismatch to the

generic cHme of conspitacy enumerated in j 4B1.2(b).?' ld. at 239. Nevertheless, the court

concluded that the disttict court's error was not plain error, because prior to M ccolbtm, it was

not clear that ffconspiracy'' under j 846 ctiminalized so broad a range of conduct as to not be

covered by generic conspiracy. Norman, 935 F.3d at 241-242.

Even though it appeats that if W illiams wete sentenced today he wotzld not be found

to be a careez offender under N o= an, at the Hme he was sentenced llis classificaéon as a

career offendet was consistent with the law. As discussed by the cotuts in He ood and

Drake, a modon for a sentence reducdon undez the First Step Act fdis not the ptoper vehicle

to challenge a previously-applied and subsequently-itwalidated careet offender enhancement.''

Drake, 2019 W L 5213923 at *4. See also United States v. Andezson, Cr. No. 0:04-353, 2019

WL 44400888, *4 n. 3 O .S.C. Sept. 17, 2019) rfrfjhe court has determined that a plenary

resentencing is not required by the First Step Act.''); and Davis, 2019 WL 1054554 at *2

(hncling First Step Act does not expressly permit plenary resentencing). Therefore, although

the cotut finds that W illiams is eligible for a sentence teduction under the Fizst Step Act, it

will not modify his status as a cazeez offendet, but will look at the facts set out in 18 U.S.C. j

3553(a) and his post-sentencing conduct.

(2) Modilication

Under the First Step Act, W illiams's statutory sentencing range based on 50 gram s of

cocaine base is 5 to 40 years, to be followed by a 4-yea.r tetm of superdsed release. 21 U.S.C.

j 8414$(1)7). As a cateer offender, lzis base offense level becomes 34, teduced by 3 levels to

31 for acceptance of zesponsibility. U.S.S.G. j 4B1.1(b). With his criminal llistory category of

V1, his guidelines tange is 188-235 months. The government suggests that if this cotzrt ftnds

W illiam s eligible for consideraéon of a sentence modifkaéon, that the 188-235 month range

on the cltnlg charge should be the starting point, to be followed by the mandatory 6o-month

sentence on the ftteatm chatge. The court agtees tllat tltis sentencing range is the cottect

startlng point.

The cotut fmds that it has authority under 18 U.S.C. j 3582(c)(1)7)2 to modify

W illiams's sentence, taking into account the advisory natlpte of the gtzidelines, the

considetadons set forth in 18 U.S.C. j 3553(a), and Wilbms's post-convicéon acdvides.

2 R'Fhe court may not modify a term of imprisonment once it has been imposed except that . . . the collt'tmay modify an imposed term of imprisonment to the extent otherwise expressly pe- itted by statute . . . .''18 U.S.C. j 3582(c)(1)(B).

Accozding to the PSR, W illiams was fltst arzested for possession with intent to disttibute

cocaine when he was 16 and his last arrest occlzrred when he was 32. By the time he was 15,

he was drinking alcohol to the point of intoxicadon on a regular basis. He ftrst began to use

marjuana at the age of 12 and soon became a regalat user. He began to use powder cocaine

at the age of 15 and continued to use it thzee to fouz days pez week. At the age of 23 he stazted

using PCP and used it daily fot ûve yeats. He completed tlle eleventh gtade with below avetage

grades. ECF N o. 236.

Since his incarceradon, W illiams has earned his GED and taken a number of other

courses. He currently works in the laundry shop where he has earned above-average work

evaluadons and has gained employable work expedence. ECF No. 235-1. He has received ûve

disciplinary incident reports since being incarcerated wit.h the last one being in 2013 and his

curtent secudty classificaéon is <<low.'' W illiams is 46 years old. ECF No. 235-1.

W illiams argues that while the colzrt cannot modify the sentence he received for the

j924(c) convicdon, the court can consider the 6o-month consecudve sentence as a zeason to

vary downwatd on the sentence for the cltnxg offense. See Dean v. United States, 137 S.Ct.

1170 (2017) (fincling that a sentencing court may considet a mandatory minimum sentence

under j 924(c) when calculae g an approptiate sentence fot the predicate offense). Williams

points out that the PSR contains no indicadon that he committed any acts of violence or that

he ever used a ftreqt'm. The PSR notes that W illiams placed two flremtms in an outbuilding of

a house and that the weapons had previously been reported as stolen. ECF No. 236 at 5.

18

W illiam s also stated that he had stolen firearm s from rival cltn'g dealers and later sold them

back to the drug dealers. ECF No. 236 at 7.

The coutt has reviewed W illiams's PSR, the addendum to the PSR, the evidence

subnnitted by him , and the arguments of the pazdes. Under the cturent sentencing guidelines

and the 18 U.S.C. j 3553 factozs, a sentence below the guidelines range is watzanted, but a

release to Hm e served wotzld not account for the seriousness of W ilb m s's offense and his

long history of drug dealing. Accordingly, the cout't modifies W illiams's sentence on the drug

offense to 156 months of incarceradon, to be followed by the mandatory 6o-month sentence

on the ftreatm charge, for a total of 216 months. I'lis term of supervised release is teduced to

4 years. 21 U.S.C. j 841q$(1)7).

The court Snds that a sentence of 216 m onths is sufhcienta but not greater than

necessary, and accounts for the sentencing factors the colzrt must consider pursuant to 18

U.S.C. j 3553/), specifically deterrence, protecdon of the public, and respect for the law.

Ftlrther, this sentence expzessly takes into account First Step Act sentences for other

defendants in this cltnlg conspiracy case in an effort to avoid unwatranted sentence dispaddes.

Accordingly, the court GRAN TS W illiams's m odon under the First Step Act, ECF N os. 235,

245, and reduces his sentence to 216 months, to be followed by a 4-yeaT term of supervised

zelease.

19

An appropriate Order and amended judgment will be enteted.

It is so ORDERED .

smered: / /x ( 1- / 1' V /. '/+/- +

Mich F. UrbanskiChie United States Distiict Judge

20