United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Leonte Mack has filed a Motion for Imposition of a Reduced
Sentence Pursuant to Section 404 of the First Step Act. ECF
No. 128. The Government has responded in Opposition, ECF No.
131, and Mack has Replied, ECF No. 132. For the reasons set
forth below, the Court GRANTS the Motion and
will reduce Mack's sentence on Count Two from 84 months
imprisonment to 60 months imprisonment, to run consecutive to
the sentence on Count One.
6, 2009, Mack was charged by Indictment with four counts of
criminal conduct: two counts of possession of a firearm by a
convicted felon in violation of 18 U.S.C. S 922(g)(1) (Counts
One and Four), one count of possession with intent to
distribute 5 grams or more of cocaine base, otherwise known
as crack cocaine, in violation of 21 U.S.C. S 841(a)())
(Count Two), and one count of possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. S 924(c) (Count Three). ECF No. 1. After a four-day
trial, a jury found Mack guilty on all four counts. ECF No.
46. The Jury's special verdict on Count Two found the
amount of cocaine base attributable to Mack to be "5
grams or more, but less than 50 grams." Id.
United States Probation Office prepared a Presentence
Investigation Report ("PSR") in anticipation of
Mack's sentencing. The PSR determined that Mack had a
base offense level of 28 pursuant to U.S.S.G. S 2D1.1,
attributing between 35 and 50 grams of crack cocaine to him.
While the PSR also concluded that Mack qualified as a career
offender based on a prior reckless endangerment conviction
and a prior robbery conviction, the Government pointed out at
the April 8, 2010 sentencing that the reckless endangerment
conviction may not be a "crime of violence" under S
4B1.1 and may not trigger the career offender designation.
ECF No. 70. Accordingly, the Court declined to apply the
career offender enhancement. Based on a final offense level
of 28 and a criminal history category of IV, Mack faced a
guidelines range of 110 to 120 months imprisonment as to
Counts One and Four , 110 to 137 months imprisonment as
to Count Two, and sixty months imprisonment as to Count
Court subsequently sentenced Mack to 120 months imprisonment
as to Count One, 120 months imprisonment as to Count Two to
run consecutive to Count One, 120 months imprisonment as to
Count Four to run concurrent to Count One, and 60 months
imprisonment as to Count Three to run consecutive to all
Counts. ECF 58. This resulted in a total sentence of 300
months imprisonment, followed by 5 years of supervised
his unsuccessful appeal to the Fourth Circuit, Mack filed a
pro se motion to vacate his sentence pursuant to 28
U.S.C. S 2255 on August 10, 2012. ECF No. 79. On May 7, 2013,
the Court denied the motion. ECF No. 85.
October 5, 2016, Mack, through counsel, filed a Motion for a
Reduction of Sentence Under 18 U.S.C. S 3582(c)(2) and
Amendment 782 to the United States Sentencing Guidelines,
asking the Court to revise his sentence in light of Amendment
782, which reduced the guidelines ranges for sentences
imposed for convictions involving crack cocaine. ECF No. 112.
Since his total offense level decreased from 28 to 24, his
new guidelines range was 77-96 months imprisonment. He
requested that the Court impose a sentence of 84 months as to
Count One, a 84 months sentence as to Count Two to run
consecutive to the sentence on Count One, and a concurrent 84
months sentence as to Count Four, with the sentence on Count
Three remaining unchanged. Id. The Government
consented, ECF No. 114, and the Court granted the Motion,
thereby reducing Mack's sentence from a total of 300
months imprisonment to 228 months imprisonment, ECF No. 115.
1, 2017, Mack, pro se, filed a motion in the Fourth
Circuit asking leave of that court to file a second or
successive § 2255 motion. See In re: LeonIe
Mack, 17-219, ECF NO.2. Before the Fourth Circuit could
issue a ruling on the request, on May 15, 2017, Mack filed
another Motion asking the Court to vacate, amend, or set
aside his sentence pursuant to 28 U.S.C. § 2255. ECF No.
117. On May 25, 2017, the Fourth Circuit issued an Order
denying Mack's request to file a second 9 2255 motion.
ECF No. 119. This Court then found that it lacked
jurisdiction over the 9 2255 petition on the grounds that it
was a successive petition on March 29, 208. ECF No. 121.
September 18, 2019, Mack, through counsel, filed a Motion for
Imposition of a Reduced Sentence Pursuant to Section 404 of
the First Step Act. ECF No. 128. He seeks a reduction of his
sentence on Count Two from 84 months incarceration to 24
months incarceration, to run consecutive to the sentence on
Count One. The Government filed a response in Opposition on
October 30, 209. ECF No. 131. Mack filed his Reply on
November 12, 2019. ECF No. 132. On November 20, 2019, Mack
notified the Court that the Fourth Circuit had handed down
its decision in United States v. Wirsing, No.
19-6381. ECF No. 133. The Court then directed the Government
to respond by December 5, 2019, ECF No. 134, which it did,
ECF No. 135.
starting point for analysis is the Anti-Drug Abuse Act of
1986, Pub. L. No. 99-570, 100 Stat. 3207, which implemented
mandatory minimums for offenses involving specific weights of
certain drugs including crack cocaine and powder cocaine.
Notably, the Anti-Drug Abuse Act of 1986 contained a 100-to-1
ratio that treated every gram of crack cocaine as the
equivalent of 100 grams of powder cocaine. See Kimbrough
v. United States, 552 U.S. 85, 96 (2007). Since then,
and as the Fourth Circuit recently described in
Wirsing, the 100-to-1 ratio has been heavily
criticized, including on the grounds that "it
"promotes unwarranted disparity based on race."
Kimbrough, 552 U.S. at 98 (citing United States
Sentencing Commission, Report to Congress: Cocaine and
Federal Sentencing Policy iv (May 2002), available at
attempt to reduce, though not quite eliminate, this
inequality, Congress passed the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372 ("FSA"). The
FSA increased the amounts of crack cocaine necessary to
trigger mandatory minimum sentences for certain trafficking
offenses. See Id. Relevant here, the FSA increased
the amount necessary to trigger a five-year mandatory minimum
sentence from five to twenty-eight grams of crack cocaine.
See Id. The FSA "had the effect of lowering the
100-to-l crack-to-powder ratio to 18-to-l." Dorsey
v. United States, 567 U.S. 260, 269 (2012)
Formerly Incarcerated Reenter Society Transformed Safely
Transition Every Person Act, Pub. L. No. 115-391, 132 Stat.
5194 (2018) ("First Step Act'), enacted on December
21, 2018, then allowed Courts to "on motion of the
defendant... impose a reduced sentence" for a criminal
defendant (1) who 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]"; (2) if the
offense was committed before August 3, 2010; and (3) if the
defendant did not already ...