United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
day came on to be considered Defendant's Motion to Reduce
Sentence (dkt. no. 61).
November 5, 2003, a four-count indictment was brought against
Sylvester Byrd charging him with the following: (1) attempt
to manufacture 50 grams or more of cocaine base, (2)
possession with intent to distribute 50 grams or more of
cocaine base, (3) possession of firearms in furtherance of
drug trafficking crimes, and (4) felon in possession of a
firearm. On March 11, 2004, Byrd pled guilty to counts two
and three of the Indictment.
Presentence report (PSR), the base offense level was
calculated as 34. This was based on 330 grams of cocaine base
and 510 grams of cocaine. After receiving three acceptance of
responsibility points, his total offense level was 31.
history level was initially calculated at V, but he was found
to be a career criminal, which resulted in his criminal
history being scored at VI and his total offense level
thereafter being increased to 37. His adjusted offense level
after acceptance of responsibility credit was 34.
Accordingly, his guideline range for the drug offense was 262
to 327 months.
was sentenced to 262 months imprisonment for violation of 21
U.S.C. Section 841 (possession with intent to distribute 50
grams or more of cocaine base) and 60 months pursuant to the
mandatory provisions of 18 U.S.C. § 924(c)(1), which
requires that conviction to run consecutively to the term of
imprisonment imposed in count two. Accordingly, the total
sentence was 322 months.
now moves for a reduction of his sentence pursuant to the
First Step Act. Defendant argues that under the First Step
Act, the “new” bottom of his guideline range is
188 months and seeks an amended judgment to that effect.
Defendant does not address his consecutive 60-month firearm
Government opposes arguing Byrd does not qualify for relief
under the First Step Act because of the amount of drugs he
was responsible for as calculated in the PSR. Section 404 of
the Fair Sentencing Act provides that 280 grams of cocaine
base (it was previously 50 grams or less) or less now meets
the threshold under 21 U.S.C. § 841(b)(1)(B), which
carries penalties of 5 to 40 years. However, in this case,
the defendant was responsible for 380 grams of cocaine base
which continues to fall under the 21 U.S.C.
§841(b)(1)(A)- 10 year to life penalties.
vast majority of cases to address this issue agree that a
defendant whose actual conduct involved distribution of 280
grams or more of cocaine base is still eligible for relief.
This Court follows suit. See e.g. United States v.
Simons, 375 F.Supp.3d 379, 387 (E.D.N.Y. 2019)
(rejecting the argument advanced by the Government of
ineligibility); United States v. Henderson, 399
F.Supp.3d 648, 655 (W.D. La. 2019); United States v.
Allen, 384 F.Supp.3d 238, 241 (D. Conn. 2019)(statute of
conviction, not actual conduct, controls eligibility);
United States v. Davis, No. 07-CR-245S (1), 2019 WL
1054554, at *2 (W.D.N.Y. Mar. 6, 2019); United
States v. White, No. 99-CR-628-04, 2019 WL 3228335,
at *5 (S.D. Tex. July 17, 2019) (“This court follows
the majority of district courts to conclude that §
404(a) of the First Step Act bases eligibility on what is
charged in the indictment, not on the defendant's offense
conduct.”); United States v. Lewis, 398
F.Supp.3d 945 (D.N.M. 2019)(same); United States v.
Ballinger, No. 2:09-CR-105, 2019 WL 3292156, at *3 (E.D.
Tenn. July 22, 2019)(noting “outliers”).
the Court turns to whether this discretionary relief should
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.” United States v.
Hegwood, 934 F.3d 414, 418 (5th Cir.), cert. denied, 140
S.Ct. 285 (2019).
the amended guideline range, Defendant remains at a criminal
history category VI. His new total offense level is 31. His
guideline range is 188 to 235 months with regard to count 2.
The guidelines recommend 5 years of supervised release after
imprisonment. With regard to count 3, there remains a
mandatory minimum ...