United States District Court, D. Maryland
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
F. Robinson, Jr., through counsel, has filed a Motion for
Imposition of a Reduced Sentence Pursuant to Section 404 of
the First Step Act of 2018. ECF No. 145. He asks the Court to
reduce his term of imprisonment from 210 months to 188 months
and his term of supervised release from five years to four
years. See Id. The Government opposes. ECF No. 150.
For the following reasons, the Court will GRANT
December 10, 2003. Robinson was found guilty by a jury of
Conspiracy to Distribute and Possess with the Intent to
Distribute Cocaine and Cocaine Base, in violation of 21
U.S.C. § 846, and Possession with Intent to Distribute
Cocaine and Cocaine Base, in violation of 21 U.S.C. §
841. ECF No. 42. At sentencing, the Court adopted the factual
findings and advisory guideline application in the
Presentence Report, which determined Robinson's base
offense level involving drugs to be 34, per U.S.S.G. §
2D1.1 See Sentencing Transcript at 67, ECF No. 83;
Presentence Report at ¶ 22. Robinson received a
two-level upward adjustment for obstruction of justice
because he testified falsely at trial, and an additional
two-level upward adjustment for obstruction of justice
because he attempted to run over an officer while trying to
flee the scene of his arrest. Presentence Report at
¶¶ 26, 27. Accordingly, Robinson's final
offense level was determined to be 38. ECF No. 77; Statement
of Reasons at 1. While Robinson unquestionably qualified as a
career offender under U.S.S.G. § 4B1.1, because his
offense level under U.S.S.G. § 2D1.1 involving drugs
(i.e., 38) resulted in a higher offense level than that
determined under U.S.S.G. § 4B1.1 for career offenders
(i.e., 37). the higher offense level based on the §
2D1.1 drug guidelines was held applicable. Presentence Report
at ¶ 41-42. The bottom line: Robinson had a total
offense level of 38 and a criminal history category of VI,
which resulted in a sentencing range of 360 months to life in
custody. Presentence Report at Sentencing Recommendation.
Court sentenced Robinson to the low end of the guidelines
range-360 months-and 5 years of supervised release. See
Sentencing Transcript at 67; Statement of Reasons at 1;
Judgment, ECF No. 77. However, during sentencing, the Court
stated that it would impose an alternative sentence of 264
months if the Supreme Court ruled that the guidelines were
merely advisory. See Sentencing Transcript at 78. Later that
very same day, the Supreme Court issued its opinion in
United States v. Booker, 542 U.S. 220 (2005), ruling
that the guidelines were indeed only advisory. Accordingly,
this Court's alternative sentence of 264 months'
imprisonment was imposed. ECF No. 79.
September 16, 2009. the Court granted Robinson's Motion
to Reduce Sentence pursuant to Amendment 706 to the U.S.
Sentencing Guidelines. ECF No. 109; ECF No. 110.
Robinson's sentence was further reduced to 210 months
imprisonment. ECF No. 110.
March 16, 2015, Robinson filed a Motion for Modification of
Sentence, seeking a reduction in his sentence pursuant to
Amendment 782. ECF No. 127. On May 16, 2017, the Government
filed an Opposition, arguing that Robinson was ineligible for
the reduction because his 210-month sentence of imprisonment
was lower than his amended guideline range when calculated
using his career offender status. ECF No. 137. Robinson filed
no direct reply to this Motion, instead filing a Motion for
Nunc Pro Tunc Order and Motion Under Federal Rule of Civil
Procedure 60(b)(6), asserting that his career offender status
should be removed. ECF No. 138. On August 9, 2017, the Court
issued a Memorandum Opinion and Order denying both of
Robinson's Motions. ECF Nos. 140, 141. His term of
imprisonment remained at 210 months.
April 29, 2019, Robinson filed a Motion for Imposition of a
Reduced Sentence Pursuant to Section 404 of the First Step
Act of 2018. ECF No. 145. After the Court granted two Motions
for Extension of Time, the Government filed its Opposition on
June 6, 2019. ECF No. 150. Robinson filed his Reply on June
19, 2019. ECF No. 151.
2010, the Federal Government enacted the Fair Sentencing Act
of 2010. Pub. L. No. 111-220, 124 Stat. 2372 (2010)
("FSA"). The FSA increased the amounts of cocaine
base, otherwise known as crack cocaine, necessary to trigger
mandatory minimum sentences for certain trafficking offenses.
See Id. Specifically, the FSA increased from five to
twenty-eight grams the threshold quantity of crack cocaine
necessary to implicate the five-year mandatory minimum
sentence. See Id. at § 2(a). The FSA also
increased from fifty to 280 grams the amount of crack cocaine
necessary to trigger the ten-year mandatory minimum sentence.
See Id. Accordingly. offenses involving more than
twenty-eight but less than 280 grams of crack cocaine were
made subject to a sentencing range of five to forty years,
and offenses involving more than 280 grams of crack cocaine
were made subject to a sentencing range of ten years to life.
See 21 U.S.C. § 841(b). The FSA had the effect of
reducing the sentencing disparity between offenses for crack
cocaine and powder cocaine from 100-to-1 to 18-to-1. See
Dorsey v. United States, 567 U.S. 260, 269 (2012).
December 21, 2018, the Federal Government enacted the
Formerly Incarcerated Reenter Society Transformed Safely
Transitioning Every Person Act, Pub. L. No. 115-391, 132
Stat. 5194 (2018) ("First Step Act"), which states
that courts "may, on motion of the defendant. . . impose
a reduced sentence" for a criminal defendant who (1) was
convicted of a "covered offense," i.e., a
"violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the
[FSA]"; and (2) the offense was committed before August
3, 2010; and (3) the defendant did not already receive a
reduction under the FSA or the First Step Act. See First Step
Act, § 404, 132 Stat. 5194, 5222. Section 404 of the
First Step Act also made retroactive the FSA's revisions
of the statutory ranges for defendants convicted of offenses
involving crack cocaine. See First Step Act, § 404(b).
Accordingly, the violation of a criminal statute whose
statutory penalties were revised by the FSA was deemed to be
a "covered offense" within the First Step Act,
meaning that defendants previously convicted of such a
"covered offense" would be eligible to seek a
sentence reduction under the First Step Act. See Id.
parties disagree over whether Robinson is eligible for a
sentence reduction under the First Step Act. The Government
contends that he has not been convicted of a "covered
offense." ECF No. 150 at 13-15. Arguing that "the
key question is whether the actual 'violation' would
have had a different statutory penalty had the higher
quantity thresholds of the [FSA] been in place when it was
'committed.'" Id. at 15, the Government
notes that Robinson was found to have been in possession of
312 grams of crack cocaine, an amount that would have
subjected him to the sentencing range often years to life
regardless of the statutory modifications in the FSA. See id.
at 14-15. Robinson counters that a "covered
offense" under the First Step Act is defined by the
elements of the offense of a defendant's conviction, as
laid out in his indictment, not by the defendant's
particular conduct. ECF No. 151 at 11-13. The Court agrees
all other district courts that have considered motions to
reduce sentences under the First Step Act have adopted the
elemental approach in determining what qualifies as a
[I]n determining whether a defendant is eligible for relief
under § 404 of the First Step Act, the sentencing court
should look to whether the offense of conviction was modified
by the Fair Sentencing Act of 2010 to determine eligibility;
it should refrain from delving into the particulars of the
record to determine how this specific defendant committed his
or her offense of conviction, and how those facts would ...