United States v. King

Decision Date30 October 2019
Docket NumberNo. 3:02-cr-00067,3:02-cr-00067
Citation423 F.Supp.3d 481
Parties UNITED STATES of America v. Reginald D. KING
CourtU.S. District Court — Middle District of Tennessee

Sunny A.M. Koshy, U. S. Attorneys, Nashville, TN, for Plaintiff.

Thomas J. Drake, Jr., Craig & Drake, Kathleen G. Morris, Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Sentenced to 25 years imprisonment in 2003, Reginald King has filed a Motion for Imposition of a Reduced Sentence (Doc. No. 118) requesting that his sentence for intent to distribute crack cocaine be reduced to 130 months pursuant to Section 404 of the First Step Act of 2018. The Government has filed a response in opposition to that Motion (Doc. No. 120), to which King has replied (Doc. No. 121).

I.

On April 11, 2002, a federal grand jury returned an Indictment against King charging conspiracy to commit money laundering (Count One); money laundering and aiding and abetting the same (Count Two); possession with intent to distribute 50 grams or more of cocaine base and aiding and abetting the same (Count Three); possession of firearms in furtherance of drug trafficking (Count Four); and being a convicted felon in possession of a firearm (Count Five). The Indictment also sought criminal forfeiture of a residence at 3521 Country Way Road, Antioch, Tennessee that allegedly was purchased through laundered drug proceeds. On July 2, 2003, the Government filed a Section 851 Information asserting that King had a prior felony drug conviction.

On July 3, 2003, pursuant to a Rule 11(c)(1)(B) agreement, King pled guilty to Counts One through Four, agreed to the forfeiture count, and the Government agreed to dismiss Count Five. In pleading guilty, King acknowledged that he knowingly possessed 589 grams of crack cocaine with the intent to distribute, that he used a firearm in furtherance of drug trafficking, and that he had a prior felony drug conviction. During the plea colloquy and in the plea agreement, King stated that he knew that he faced a mandatory sentence of not less than 20 years and up to life imprisonment on Count Three, plus an additional 5-year mandatory minimum on the gun count.

On January 15, 2004, Judge Echols sentence King to 300 months (25 years) imprisonment. In arriving at that sentence, Judge Echols began by noting that King had an Offense Level of 33 and a Criminal History Category II under the United States Sentencing Guidelines, which resulted in a range of from 151 to 188 months, but this was trumped by the required mandatory minimum of 20 years on Count Three. Judge Echols also noted that King faced an additional, consecutive five years for the firearm offense alleged in Count Three. Accordingly, King was sentenced to 300 months, consisting of 240 months on Counts One to Three, and 60 months on Count Four, consecutive to all other counts.

II.

The Fair Sentencing Act of 2010 was enacted to "alleviate the severe sentencing disparity between crack and powder cocaine." United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016). Under Section 2 of the Fair Sentencing Act,"[w]hat used to be a 100:1 ratio between the amount of powder and crack needed to trigger the mandatory minimums [became] an 18:1 ratio," United States v. Blewett, 746 F.3d 647, 649 (6th Cir. 2013), while Section 3 "eliminated the 5–year mandatory minimum for simple possession of crack," Dorsey v. United States, 567 U.S. 260, 269–270, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

The First Step Act of 2018, in turn, provided additional relief to some offenders by making certain provisions of the Fair Sentencing Act retroactive. Specifically, Section 404 of the First Step Act provides in relevant part:

(a) Definition of Covered Offense. – In this section, the term "covered offense" means 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 (Public Law 111–220; 124 Stat. 2372), that was committed before August 3, 2010.
(b) Defendants Previously Sentenced. A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, 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.
(c) Limitations. – No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act (Public Law 111-220; 124 Stat. 2372), or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018).

At the time of King's sentencing in 2003, fifty grams of crack cocaine triggered a statutory mandatory minimum sentence of 10 years. See 21 U.S.C. § 841(b)(1)(B)(iii) (2003). With a qualifying prior felony under 21 U.S.C. § 851, the mandatory minimum increased to 20 years. Id. 841(b)(1)(A)(iii). However, because Section 2 of the Fair Sentencing Act increased the amount of cocaine base required to trigger the 20-year mandatory minimum for a defendant with a prior qualifying drug felony from fifty grams to 280 grams, 21 U.S.C. § 841(b)(1)(A)(iii) (2012), King seeks the retroactive relief afforded by the First Step Act. He contends that because he pled guilty to possessing with the intent to distribute 50 grams of cocaine and because that amount is greater than 28 but less than 280 grams, he is subject to only a 10 year statutory minimum, even with his prior felony drug conviction. Id. § 841(b)(1)(B)(iii).

The Government argues otherwise. It submits that because King admitted to possessing 589 grams of crack and did not object to the Presentence Report's statement that he possessed that amount of cocaine base, the First Step Act is inapplicable. In other words, because King admitted to possessing more than the heightened threshold of 280 grams, the Court has no authority to reduce King's sentence. As support, the Government cites United States v. Glover, 377 F.Supp.3d 1346, 1361 (S.D. Fla. 2019) and United States v. Haynes, 2019 WL 1430125, at *2 (D. Neb. Mar. 29, 2019), both of which looked to offense conduct – rather than the count of conviction – in determining whether the First Step Act applied. Those cases, however, represent the minority viewpoint.

To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court to have addressed the matter have concluded that the count of conviction controls in determining eligibility under the First Step Act. See, United States v. Rose, 379 F. Supp. 3d 223, 230 (S.D.N.Y. 2019) (stating that "Government's interpretation of § 404(a) is contrary to the clear weight of persuasive authority, both within and outside the Second Circuit" and collecting cases); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *2 n.1 (S.D. Tex. July 17, 2019) (noting that "[o]nly a few courts have sided with the government's position that eligibility turns on the defendant's actual conduct, rather than the charged offense" and listing over 40 cases finding that statute of conviction controls eligibility for § 404 relief). For a number of reasons, this Court, too, finds that the offense of conviction controls.

First, the First Step Act allows a court to reduce a sentence for a "covered offense" with that term being defined as "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." This suggests that the court must examine the statute the defendant has violated and whether that statute is one for which the statutory penalties were modified by the Fair Sentencing Act. United States v. Boulding, 379 F.Supp.3d 646, 651 (W.D. Mich. 2019) ("[E]ligibility under the language of the First Step Act turns on a simple, categorical question: namely, whether a defendant's offense of conviction was a crack cocaine offense affected by the Fair Sentencing Act. If so, the defendant is categorically eligible for consideration regardless of actual quantities[.]"); United States v. Davis, No. 07-CR-245, 2019 WL 1054554, at *3 (W.D.N.Y. Mar. 6, 2019) (citation omitted) ("Under the plain language of the [First Step] Act, whether an offense is a ‘covered offense’ is determined by examining the statute that the defendant violated. If that statute is one for which the statutory penalties were modified by section 2 or 3 of the Fair Sentencing Act, it is a ‘covered offense.’ ").

Second, relying on the offense of conviction eliminates nettlesome issues that could arise under cases like Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt," and Alleyne v. United States, 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held "that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury." Surely, "Congress when drafting the First Step Act in 2018 ... did not intend for courts to disregard the last six [to sixteen] years of Supreme Court federal sentencing jurisprudence[.]" United States v. Smith, 379 F. Supp. 3d 543, 546 (W.D. Va. 2019). Indeed, "[a]lthough Apprendi and Alleyne are not retroactively applicable on collateral review, district courts have found that their holdings are applicable in the context of the First Step Act." United States v....

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