United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Rosenthal Chief United States District Judge
2000, James Roy White received a mandatory life sentence
based on his conviction for, among other offenses, aiding and
abetting to possess and conspiring to possess at least 50
grams of crack cocaine, and based on his prior convictions
for two serious drug felonies. He now moves for resentencing
based on § 404 of the First Step Act. (Docket Entry No.
271). The government responded, and White replied. (Docket
Entry Nos. 272, 273).
on the applicable law and the motion, response, and reply,
the court grants White's motion for resentencing. (Docket
Entry No. 271). An addendum to the presentencing report is
due by August 9, 2019, and a hearing is set for August 16,
2019, at 8:30 a.m., in courtroom 11-B.
October 1999 indictment alleged that White had conspired to
possess and aided and abetted the possession of crack cocaine
with the intent to distribute at least 50 grams, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and
846, and 18 U.S.C. § 2. (Docket Entry No. 1). A jury
convicted White on both of these counts in March 2000.
(Docket Entry No. 89). Before trial, the government filed a
notice under 21 U.S.C. § 851 of White's two prior
drug felony convictions.
sentencing, the court found that the government had proven
the prior felony convictions disclosed on the § 851
enhancement. That finding mandated a life sentence for each
of the possession counts. (See Docket Entry No. 271
at 2). The court adopted the presentence report's finding
that White was accountable for 510.3 grams of crack cocaine
with an average role and a criminal history category of V.
(Id.). His Guidelines range 292 to 365 months.
(Id.). But because the court concluded that
White's prior convictions made him a career offender,
raising the Guidelines range to 360 months to life
imprisonment, the Court imposed the mandatory life sentence
for both counts. (Docket Entry No. 142).
argues that he is eligible under the First Step Act's
retroactive application of the Fair Sentencing Act for
resentencing to a lower sentence for his § 841(b)(1)(B)
convictions-10 years to life with a Guidelines range of 151
to 188 months. (Docket Entry No. 271 at 5; see
Docket Entry No. 272 at 2). The government argues that White
is not eligible under the First Step Act because his relevant
conduct mad him accountable for 510.3 grams of crack cocaine,
which is above the amended amount of more than 280 grams
required for a violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(iii). (Docket Entry No. 272 at 2).
The First Step Act
First Step Act, enacted in December 2018, allows, but does
not require, a court to reduce a previously imposed sentence
under narrow circumstances. Section 404(b) of the Act states:
A court that imposed a sentence for a covered offense may, on
motion of the defendant . . . 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.
No. 115-391, 132 Stat. 5194, § 404(b). A “covered
offense” is “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” and
“was committed before August 3, 2010.”
Id. § 404(a).
Fair Sentencing Act of 2010 was intended to “reduc[ed]
the crack-to-powder cocaine disparity from 100-to-1 to
18-to-1.” Dorsey v. United States, 567 U.S.
260, 264 (2012). The Fair Sentencing Act increased the
crack-cocaine quantities triggering a mandatory minimum,
including shifting from 5 grams to 28 grams to trigger the
5-year minimum and from 50 grams to 280 grams to trigger the
10-year minimum. Fair Sentencing Act, Pub. L. No. 111-220,
124 Stat. 2372, § 2(a); see also 21 U.S.C.
issue is how the First Step Act applies to a defendant's
pre-2010 conviction under § 841(b)(1)(B) for over 50
grams of crack cocaine, if, after 2010, that defendant could
have been charged for over 280 grams of crack cocaine based
on the amount attributed to the defendant in the presentence