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United States v. Lewis

United States District Court, D. New Mexico

January 10, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
JABSIE DWAYNE LEWIS, Defendant.

          John C. Anderson United States Attorney Paul H. Spiers Adam S. Rowley Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Kari Converse Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Sealed Motion to Reconsider Sealed Order Denying Motion for Relief Under Section 404 of the First Step Act, filed May 15, 2019 (Doc. 176)(“Motion”). The primary issues are: (i) whether the Court erred, under the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018)(“First Step Act”), by not granting Lewis an in-person sentencing hearing at which he could allocute; (ii) whether the Court erred in construing First Step Act motions for sentence reduction as 18 U.S.C. § 3582(c)(2) proceedings; (iii) whether the Court improperly relied on the lack of a United States Sentencing Commission Guidelines amendment regarding the First Step Act in determining Defendant Jabsie Dwayne Lewis' eligibility for First Step Act relief; (iv) whether the Court improperly restricted its ability to impose a sentence below the applicable Guidelines range based on Dillon v. United States, 560 U.S. 817 (2010)(“Dillon”); and (v) whether the Court erred in applying the 2009 Guidelines manual, rather than the 2018 manual, to its sentencing decision. The Court concludes that (i) the Court did not err by not granting Lewis an in-person sentencing hearing, because the First Step Act does not require plenary resentencing and does not require a hearing at which the defendant is present; (ii) the Court, upon further review, concludes that First Step Act motions for sentence reduction are governed by 18 U.S.C. § 3582(c)(1)(B), and not by 18 U.S.C. § 3582(c)(2); (iii) the Court did not rely on the lack of a Guidelines amendment regarding the First Step Act in determining Lewis' eligibility for relief; (iv) the Court did not improperly restrict its ability to impose a sentence below the applicable Guidelines range, and it conducted a thorough review of the 18 U.S.C. § 3553(a) factors in determining Lewis' recalculated sentence; and (v) the Court, upon further review, concludes that the 2018 Guidelines manual applies, but that the same advisory range ensues under either manual, so the Guidelines calculation remains unchanged. Accordingly, the Court grants the Motion in part and denies it in part.

         FACTUAL BACKGROUND

         The Court outlined the facts and circumstances surrounding Lewis' offense in United States v. Lewis, No. CR 08-0057 JB, 2019 WL 2192508, at *1-8 (D.N.M. May 21, 2019)(Browning, J.)(“MOO”). The Motion raised no objection to the facts as presented in the MOO. See Motion at 1-9. The Court incorporates the MOO's facts here.

         PROCEDURAL BACKGROUND

         Lewis does not present any new evidence in his Motion, and he does not attack any of the Court's factual findings in the MOO. See Motion at 1-8. Instead, Lewis contends that: (i) the Court erred, under the First Step Act, by not granting Lewis an in-person sentencing hearing at which he could allocute; (ii) the Court erred in construing First Step Act motions for sentence reduction as 18 U.S.C. § 3582(c)(2) proceedings; (iii) the Court improperly relied on the lack of a Guidelines amendment regarding the First Step Act in determining Lewis' eligibility for First Step Act relief; (iv) the Court improperly restricted its ability to impose a sentence below the applicable Guidelines range based on Dillon v. United States; and (v) the Court erred in applying the 2009 Guidelines manual, rather than the 2018 manual, to its sentencing decision. See Motion at 1-9. The United States did not file a response. The Court held a hearing on June 5, 2019. See Clerk's Minutes, filed June 5, 2019 (Doc. 180).

         1.The Motion.

         On May 15, 2019, Lewis filed the Motion. See Motion at 9. In the Motion, Lewis asks the Court to reconsider its MOO. See Motion at 1. Lewis makes five arguments in the Motion.

         First, Lewis argues that the Court erred in not granting him an in-person hearing, which he did not waive, and at which he intended to present additional information, including allocution. See Motion at 1. Lewis cites his notice of non-consent to Telephonic Hearing. See Non-Consent to Telephonic Hearing and Request for Postponement of Hearing, filed March 21, 2019 (Doc. 165)(“Notice of Non-Consent”). Lewis contends that the Court should have read his Notice of Non-Consent and request for a hearing as a notice of intent to present additional facts not already before the Court. See Motion at 1-2. Lewis cites United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017), for the proposition that it is plain error to deny a defendant the right to allocute. See Motion at 2. Lewis contends that he did not waive his right to an in person hearing. See Motion at 1-2. Lewis also argues that the Court based its decision in the MOO “almost entirely on ten-year old information.” Motion at 2. Lewis cites the relative lengths of the Court's discussion of Lewis' Letters in Support, see Reply to Response From Probation and Government to Emergency Motion to Resentence at 7-13, filed March 18, 2019 (Doc. 162)(“Letters in Support”), and the Court's discussion of Lewis' criminal history and offense conduct as described in the PSR, see Motion at 2. Lewis argues that the holding in Pepper v. United States, 562 U.S. 476 (2009), that a district court may, at resentencing, consider a defendant's post-sentencing rehabilitation evidence, suggests that the “denial of the opportunity to present such evidence was error.” Motion at 2-3. Lewis argues that a First Step Act § 404 proceeding is most analogous to a sentencing proceeding, governed by rule 42(a)(3) of the Federal Rules of Criminal Procedure, rather than to a sentencing correction, which rule 43(b)(4) of the Federal Rules of Criminal Procedure governs, and that accordingly, a defendant's presence at a First Step Act hearing is required. See Motion at 3. In support of this argument, Lewis refers to the First Step Act's use of the verb “impose.” Motion at 3 (citing First Step Act § 404). Lewis argues that the “limited exception to the defendant's required [presence] at sentencing does not apply to statutes described by 18 U.S.C. § 3582(c)(1)(B), ” but rather applies “only to proceedings that are authorized by Section 3582(c) itself” as a result of retroactive Guidelines changes or a Bureau of Prisons motion to reduce a sentence based on extraordinary and compelling reasons. Motion at 3-4.

         Second, Lewis argues that, contrary to the Court's statement in the MOO that “First Step Act motions for sentence reduction are 18 U.S.C. § 3582(c)(2) proceedings, ” First Step Act motions to reduce sentences are not 18 U.S.C. § 3582(c)(2) proceedings, because the First Step Act modifies statutory ranges and does not effectuate a Guidelines amendment. Motion at 4 (quoting MOO, 2019 WL 2192508, at *19) . Lewis argues that 18 U.S.C. § 3582(C)(2)'s text refers only to cases where a defendant has been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . .” Motion at 4 (quoting 18 U.S.C. § 3582(c)(2)). Lewis argues, accordingly, that § 404 establishes a freestanding remedy which is less restrictive than an 18 U.S.C. § 3582(c)(2) proceeding. See Motion at 5.

         Third, Lewis objects to the Court's statement in the MOO's footnote 14 that “‘The United States Sentencing Commission has yet to promulgate a Guidelines amendment to officially effectuate the First Step Act.'” Motion at 5 (quoting MOO, 2019 WL 2192508, at *19 n.14). Lewis argues that the Sentencing Commission has stated that the First Step Act contains no directives to the Sentencing Commission. See Motion at 5 (citing U.S.S.C. Office of Education and Sentencing, Practice Insider Express Special Edition, available at https://www.ussc.gov/sites/default/files/pdf/.../2019-specialFIRST-STEP-Act.pdf (“U.S.S.C. First Step Act Practice Insider”)). Lewis also argues that the Sentencing Commission “cannot move on any amendments until it has sufficient voting members to promulgate amendments, ” and that the Sentencing Commission currently has only two voting members. Motion at 5-6 (citing U.S.S.C. First Step Act Practice Insider).

         Fourth, Lewis argues that Dillon is irrelevant to a First Step Act § 404 proceeding, because a First Step Act proceeding is not a Guidelines amendment case. See Motion at 6. Lewis argues, accordingly, that “there is no limitation on a Court's ability, at sentencing, to impose a sentence below the applicable guideline range, ” in a First Step Act case. Motion at 6. Lewis cites to several federal district court cases imposing post-First Step Act sentences below the advisory Guidelines range. See Motion at 7.

         Fifth, Lewis argues that the Court erred in concluding that the 2009 Guideline manual, rather than the 2018 manual, applied to its sentencing decision. See Motion at 8. Lewis argues that the “general rule is that a defendant should be sentenced under the law in effect at the time of sentencing.” Motion at 8. Lewis contends that § 3553(a)(4) “states that the guidelines ‘in effect on the date the defendant is sentenced' apply, except as provided in § 3742(g)(1).” Motion at 8 (quoting 18 U.S.C. § 3553(a)(4)(A)(ii)). Lewis contends that the only exception to § 3553(a)(4)(A) other than § 3742(g)(1) is the Ex Post Facto Clause and that, absent an “ex post facto violation, a court must apply the current guidelines at resentencing, must apply other law as it stands at the time of resentencing, and must resentence a defendant in light of factual circumstances as they stand at resentencing.” Motion at 8. Lewis concludes by requesting that the Court reconsider its MOO, grant him a sentencing hearing where he may allocute and where he may “present factors relevant to this Court's consideration pursuant to § 3553, ” and that the Court “grant him a reduced sentence.” Motion at 9.

         2. The Hearing.

         The Court held a hearing on June 5, 2019. See Draft Transcript of Motion Hearing at 1:1-2 (Court)(taken June 5, 2019)(“Tr.”).[1] The Court asked Lewis to begin with the issue of his entitlement to an in-person hearing. See Tr. at 2:2-3 (Court). Lewis began by discussing United States v. Potts, No. 2:98-cr-14010, 2019 WL 1059837 (S.D. Fla. March 6, 2019)(Rosenberg, J.), which the Court cited in its MOO. See Tr. at 2:9-11 (Converse). Lewis argued that the Honorable Robin L. Rosenberg, United States District Judge for the United States District Court for the Southern District of Florida, who decided United States v. Potts, commented during a later hearing on the case that, although she understood some judges “with the agreement of both parties” resentence under the First Step Act without the defendant present, she “really wanted to see who [the defendant was], who [the defendant is], and understand what [the defendant might] need if the court were to resentence [the defendant] . . . .” Tr. at 2:14-21 (Converse). Lewis argued that Judge Rosenberg “express[ed] her pleasure that Mr. Pot[t]s was there, ” and Lewis averred that “that's because in many cases, and we submit this is one of them, who the person is today is not who they were before.” Tr. at 3:1-6 (Converse).

         Lewis contended that “[j]ust yesterday, ” on June 4, 2019, in the United States District Court for the Middle District of Pennsylvania, the court held that a defendant was “entitled to a full resentencing hearing and anything less would be a miscarriage of justice.”[2] Tr. at 3:6-10 (Converse). Lewis contended that in the Middle District of Pennsylvania case, the defendant “was sentenced [pre-Booker] under [the] mandatory guideline[s] scheme.” Tr. at 3:11-13 (Converse). Lewis averred that the judge in the Middle District of Pennsylvania case indicated that the only appropriate way to thoroughly evaluate the defendant's characteristics “through the prism” of 3553(a) was to “have him appear in open court and provide him with an opportunity to fully [allocute].” Tr. at 3:14-18 (Converse). Lewis indicated that he was not sure “if the court needs to reach the issue of whether this is a hearing under . . . any section of 3582.” Tr. at 4:4-7 (Converse). Lewis argued that many courts have held that First Step Act motions are independent of 18 U.S.C. § 3582, or that § 3582 places no restrictions on a First Step Act resentencing court. See Tr. at 4:7-9 (Converse). Lewis referred to a case out of the United States District Court for the District of Connecticut, published on May 20, 2019, in which the defendant was present at the hearing and given the opportunity to allocute, and the only authority to which the district court cited to allow him to allocute was the First Step Act.[3] See Tr. at 4:9-14 (Converse). The United States did not take a position on whether the Court committed error in not having Mr. Lewis present at a hearing. See Tr. at 4:20-24 (Court, Spiers). When pressed, the United States averred that its position is identical to the one the Court articulated in its MOO -- that Lewis does not have a right to be present at a hearing. See Tr. at 7:2-17 (Spiers, Court). The Court stated that it still does not “see the defendant telling me anything in the statute that requires” a hearing and noted that the Court attempted to set up a telephonic hearing, but that Lewis “indicated he was kind of in a rush, ” so the Court issued a written opinion. See Tr. at 8:14-22 (Court). The Court stated that its inclination is “to think on these first step hearings that a hearing is not required, ” and expressed its belief that “most courts have said that, ” but that the Court would “look at it and make sure that I haven't missed anything.” Tr. at 9:17-23 (Court).

         On the second issue, whether courts should construe a First Step Act motion for sentence reduction as a § 3582 proceeding, Lewis stated that his “briefing is fairly comprehensive on that, ” and that the Sentencing Commission “itself disagrees with Your Honor on that point.” Tr. at 10:5-8 (Converse). Lewis argued that the First Step Act was not accompanied by any Guidelines changes, and that § 3582(c)(2) applies exclusively where a Guidelines amendment has been made retroactive. See Tr. at 10:5-18 (Lewis). Lewis also averred that there is no Sentencing Commission quorum right now to propose amendments. See Tr. at 11:17-19 (Lewis). The Court asked why there is no quorum, and Lewis stated that he is “happy to research that . . . and provide further authority, ” but that he did not then know. Tr. at 11:23-12:8 (Converse).

         The Court asked what difference it makes if the motion is construed as a § 3582(c)(2) proceeding or a § 404 proceeding. See Tr. at 12:9-11 (Court). Lewis argued that the difference is “what is considered at sentencing and what limitations exist, ” because Dillon imposes limitations on § 3582(c)(2) proceedings, but no such limitations exist for § 404 proceedings. See Tr. at 12:12-19 (Converse). The Court asked what limitations exist under § 3582(c)(2) that do not exist under § 404, and Lewis averred that Dillon restricts the court's ability in a § 3582(c)(2) proceeding to vary below the advisory guidelines range. See 12:23-13:5 (Court, Converse). The Court asked whether it had not, in the MOO, considered all factors in arriving at its sentence determination. See Tr. at 14:3-5 (Court). Lewis responded that the Court stated in the MOO that the First Step Act only contemplates a recalculation of the defendant's Guidelines numbers and a possible resentencing consistent therewith, and the Court responded that the Guidelines range with which the Court was working might have placed Lewis at time served, and that the Court considered every factor it knew about Lewis, “including materials he presented of late and his PSR[.]” Tr. at 14:3-23 (Court, Converse). Lewis averred that the Court mentioned Lewis' lack of serious disciplinary infractions while incarcerated, but that the Court did not consider “the harsh additional punishment that comes from having his son and his brother murdered while he's in prison and not being able to grieve with the family.” Tr. at 15:1-7 (Converse). The Court asked whether that information was in the materials presented to the Court, and Lewis said that he believed that it was. See Tr. at 15:8-11 (Court, Lewis). The Court asked why Lewis believed that the Court had not considered it, and Lewis stated that the Court did not mention it in the MOO, to which the Court responded that it read and considered all of the material that Lewis provided. See Tr. at 12-18 (Court). The Court located this information in the Summary Reentry Plan - Progress Report at 3, filed February 11, 2019 (Doc. 153)(noting that “[i]nmate communicates well with staff and there are no known issues with other inmates. He is hesitant to return to New Mexico because his son and his little brother were murdered in Albuquerque, New Mexico”).

         Lewis argued that the Court held itself constrained to just perform a Guidelines recalculation, and that the Court should hear from Lewis to “get a much better feel for if he's the person that you feared putting back out on the streets today, or if he's changed by talking with him and seeing him.” Tr. at 15:19-16:11 (Converse). Lewis also argued that “there's a high probability that his criminal history that Your Honor relied so heavily upon exists because of his race” and cited statistics that “[t]he lifetime likelihood of imprisonment for all men is one in nine. For white men it's one in 17. For black men, it's one in three.” Tr. at 16:12-23 (Converse). Lewis cited additional statistics regarding racial disparities in criminal charging and sentencing, and stated that he would present additional information and data at a hearing, if permitted. See Tr. at 16:24-18:19 (Converse). Lewis also argued that the Court did not address in the MOO that, if Lewis were sentenced today, he would not be eligible for the § 851 enhancement, because the predicate offenses that qualify for an § 851 enhancement have changed, and Lewis' simple cocaine possession offense, which formed the predicate for his § 851 enhancement, no longer qualifies. See Tr. at 18:20-19:2 (Converse). Lewis averred that “there are many courts that have varied on that very basis, Your Honor.” Tr. at 18:3-4 (Converse). The United States responded that Dillon indicates that a First Step Act hearing, if there is one, “is not meant to be a plenary hearing, ” and that the Court's MOO demonstrates that the Court “was not constrained . . . in its reasoning” or bound to a Guidelines analysis, when the Court “methodically and deliberately” went through a § 3553(a) analysis. Tr. at 19:10-25 (Spiers). The United States argued that the Court's MOO evolved into a plenary consideration of Lewis, even though that analysis is not a requirement. See Tr. at 20:5-7 (Spiers). The United States averred that it would not respond to Lewis' arguments about the “racial issues” pertaining to his criminal history, because it would not be able to effectively respond, given that the United States did not have “advance notice of that particular feature to this hearing.” Tr. at 20:20-21:4 (Spiers). The United States took the position that, under § 3582, substantial assistance to authorities would warrant a downward departure or variance, but here, substantial assistance did not occur. See Tr. at 21:4-9 (Spiers). The United States averred that First Step Act motions should be considered as a synthesis of a § 3582 proceeding and a § 404 proceeding, but that, in the end, it is a § 3582 proceeding. See Tr. at 22:10-16 (Spiers). Lewis replied that United States v. Dillon preceded the First Step Act by many years, so it does not hold that First Step Act motions are § 3582(c)(2) proceedings. See Tr. at 22:20-23 (Converse).

         Lewis averred that some courts have held that § 3582(c)(1)(b) is the applicable statute, and that, although Lewis disagrees, § 3582(c)(1) talks about a term of imprisonment that a court may modify pursuant to statute. See Tr. at 22:24-23:7 (Lewis). Lewis noted that the Court quoted § 3582(c)(1)(b) in its opinion. See Tr. at 23:7-9 (Lewis). Regarding the issue of which Guidelines manual the Court should have used, Lewis stated that his briefing was comprehensive. See Tr. at 24:13-15 (Converse). The United States remarked that the Guidelines range come out the same way under either manual. See Tr. at 25:5-11 (Spiers). Lewis agreed that the Guidelines range does not change under either manual. See Tr. at 25:15-16 (Converse). The United States noted that, in calculating Lewis' eligibility, the United States Probation Office referred to the 2018 Guidelines. See Tr. at 26:2-4 (Spiers).

         Lewis next argued that the Court erroneously concluded that it could not vary Lewis' sentence below his advisory Guidelines range, and that, since Lewis filed the Motion, several cases have come out varying below the Guidelines range. See Tr. at 26:7-27:21 (Converse). Lewis averred that “there have been a lot of developments in the law since Your Honor was preparing the memorandum opinion and order and since I filed the motion to reconsider.” Tr. at 30:15-18 (Converse). Lewis averred that the developments “make it clear that the court is empowered to vary, it's not constrained by a guideline sentence or even by a proportionate reduction, ” and that, accordingly, Lewis would “ask for the chance to more fully develop matters at sentencing that I have alluded to here that go to 3553 factors.” Tr. at 30:15-23 (Converse). The United States responded that the Court's MOO indicates it is not tethered to the Guidelines range and that the Court did not constrain itself, considering all of the 18 U.S.C. § 3553(a) factors in determining whether to reduce Lewis' sentence below the bottom of the Guidelines range. See Tr. at 31:10-22 (Spiers).

         Lewis also argued that, in footnote 20 of the Court's MOO, the Court expressed discomfort and displeasure with “the three level reduction that was just stipulated to without any explanation.” Tr. at 34:1-5 (Converse). Lewis explained that the variance related to a “dispute about some of Mr. Lewis' predicate offenses, ” and expressed that he would “like to develop [that matter] at a resentencing . . . .” Tr. at 35:1-7 (Converse). Lewis requested that the Court reconsider its findings whether First Step Act motion hearings are § 3582(c)(2) hearings and whether Dillon and the Guidelines constrain the Court. Lewis further beseeched the Court to remove from the MOO the references to the First Step Act being a law that lowers the Guidelines range, “and that the sentencing commission has done certain things or not done certain things in response to the lowered guideline range, which doesn't exist, ” and, “after that, we'd ask for a hearing where we could present additional material.” Tr. at 36:5-16 (Converse). Lewis suggested that “perhaps the court will find that if not a full-blown plenary sentencing . . . there is a right to [allocute] at it.” Tr. at 36:21-23 (Converse).

         The Court expressed that it would likely be unable to issue an opinion on the Motion immediately. See Tr. at 37:11-12 (Court). The United States remarked that the Court, in its MOO, took into consideration “[t]hat the defendant had originally benefitted by 74 months by an erroneous calculation of the Guidelines.” Tr. at 38:8-11 (Spiers). The Court agreed “that was a big factor. . . . [T]he practices at that point of people just agreeing to a . . . sentence that was not correct . . . and then the district judges going along with it. I thought that was a significant factor” in the sentencing determination. Tr. at 38:13-23 (Court).

         3.The Sentencing Memorandum.

         Lewis filed a Sentencing Memorandum on June 10, 2019 (Doc. 182)(“Sentencing Memo.”. Lewis identifies each of the factors “which put . . . downward pressure on the guideline sentence.” Lewis' Sentencing Memo at 1. Lewis summarizes those factors with bullet points:

• Remained in contact with his children; lower recidivism rate when stay in contact with children • Sentence should provide just punishment to promote respect for the law
• Supervised release may better address problems, especially drugs
• Promote 3553 factors
• Parsimony clause
• Accepted responsibility
• Post conviction rehabilitation
• Not greater than necessary
• Alcohol and drug abuse better addressed by supervised release
• No violence
• No discipline since 2015

         Sentencing Memo. at 2. Lewis then discusses each of these factors in § 3553's context.

         Lewis first examines deterrence. See Sentencing Memo. at 2. Lewis asserts that the Court divided “one § 3553 factor into three different considerations in the ‘upward pressure' column, ” but argues that “deterrence is just one factor under the statute.” Sentencing Memo. at 2. Lewis acknowledges that some courts have interpreted the deterrence factor to include general deterrence, he argues that “there is little science to support the notion that criminals, particularly street criminals and addicts . . . pay attention to or observe the outcomes in other cases.” Sentencing Memo. at 2. Lewis then synthesizes a criminology text to argue that certainty of punishment --and not its length -- serves as the most effective deterrent. See Sentencing Memo. at 3-4 (citing Valerie Wright, Ph.D., Deterrence In Criminal Justice: Evaluating Certainty Vs. Severity Of Punishment (November 2010)).

         Lewis then discusses “just punishment.” Sentencing Memo. at 4. Lewis notes that the Court listed deterrence as exerting upward pressure, “whereas [Lewis] sees it as falling with the § 3553(a)(2)(A) factor, ‘seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,' which this Court listed in the downward pressure column.” Sentencing Memo. at 4. Lewis argues that prison sentences vary by more than just duration, and that additionally a prisoner's location is equally determinative of the “harshness” of his sentence. Sentencing Memo. at 4-5. Lewis argues that courts should consider the nature and location of a defendant's incarceration when evaluating a sentence. See Sentencing Memo. at 5 (citing United States v. Noriega, 40 F.Supp.2d 1378, 1379 (S.D.Fla. 1999)(Hoeveler, J.); United States v. Volpe, 78 F.Supp.2d 76, 89 (E.D.N.Y. 1999)(Nickerson, J.)). Lewis argues that courts should, and sometimes do, issue downward departures when incarceration conditions are particularly grim. See Sentencing Memo. at 6 (citing United States v. Rodriguez, 213 F.Supp.2d 1298, 1303 (M.D. Ala. 2002)(Thompson, J.). Lewis describes that his brother and son were murdered in 2013 and 2015, respectively. See Sentencing Memo. at 6. Lewis asserts that he was “tormented by the thought that if he'd been out, he could have done something to prevent their murders. He could have been a father figure to his son or a mentor to his brother.” Sentencing Memo. at 7. Lewis argues that these circumstances contribute to the harshness of his incarceration, rendering his punishment greater than it would otherwise appear based on duration alone.

         Lewis also argues that his predicate offenses affect the just punishment factor. See Sentencing Memo. at 7.[4] On this point, Lewis disputes the PSR's characterization of his predicate offenses. Lewis asserts that the lawyer who represented him in the aggravated assault and false imprisonment charges “encouraged him to accept responsibility for everything he had been accused of” so that the matter could “all be wrapped up in one consolidated hearing” and he would “not face pretrial detention following his sentence to await trial on the issues he contested.” Sentencing Memo. at 7. However, Lewis asserts that he “does contest criminal responsibility in two of those cases.” Sentencing Memo. at 7. Lewis characterizes this argument not as a collateral attack on whether these offenses were properly considered in his criminal history, but rather to ask the Court to re-evaluate “how much weight to give the ‘long criminal history' factor it identified.” Sentencing Memo. at 7 (quoting MOO at 74). Lewis avers that the robbery charge involved $7.00, and that the false-imprisonment victim “filed an affidavit of non-prosecution in the state case, indicating that she faced incrimination based on statements made at the time.” Sentencing Memo. at 7. Lewis states that his attorney recently spoke with the alleged victim, who “confirmed that the incident did not occur as it was described in the PSR.” Sentencing Memo. at 7. Regarding the aggravated assault charge discussed in the PSR ¶ 41, at 16, Lewis asserts that the “vehicle involved was registered to the father of a young man who was a friend of Mr. Lewis. Mr. Lewis owned a similar vehicle, but was never identified by eyewitnesses as the shooter.” Lewis' Sentencing Memo. at 7-8. Lewis asserts that he was innocent of this charge, and only accepted responsibility at his lawyer's urging. See Sentencing Memo. at 8.

         Turning to the public-protection factor, Lewis argues that his age renders him less of a danger to the public. See Sentencing Memo. at 8. Lewis notes that the PSR covers criminal behavior beginning when Lewis was a teen and ends at his arrest at age twenty-eight. See Sentencing Memo. at 8. On this point, Lewis disputes the Court's finding “that a state probation officer went out of his way to work with Mr. Lewis; the record does not seem to support this conclusion.” Sentencing Memo. at 8. Lewis then discusses neurological research suggesting that young men's brains are still developing, which causes “poor judgment, inability to plan or anticipate outcomes, and impulsivity.” Sentencing Memo. at 8 (citing Am. Bar. Ass'n “Adolescence, Brain Development, and Legal Culpability, ” available at www.abanet.org/crimjust/juvjus/Adolescence.pdf). Lewis also cites a series of Supreme Court of the United States of America cases which describe immaturity and poor decision making in young men. See Sentencing Memo. at 9 (citing Johnson v. Texas, 509 U.S. 350, 367 (1993); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). Lewis argues that young people are particularly susceptible to poor influences and bad decisions, resulting in reckless behavior and criminality. See Sentencing Memo. at 9 (citing United States v. C.R., 792 F.Supp.2d 343, 496 (E.D.N.Y. 2011)(Weinstein, J.)). Lewis also notes that the Supreme Court's abolition of the death penalty for juveniles was based on the fact that “‘a lack of maturity and an underdeveloped sense of responsibility are found in young more often than adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.'” Sentencing Memo. at 10 (quoting Johnson v. Texas, 509 U.S. at 367). Lewis also notes that the Supreme Court has prohibited sentences of life without the possibility of parole for juveniles. See Sentencing Memo. at 11 (citing Miller v. Alabama, 132 S.Ct. 2455 (2012)). Lewis argues that the Guidelines reflect this trend, advising that youth may be considered “for a departure in unusual circumstances.” Sentencing Memo. at 12 (citing USSG § 5H1.1). Lewis points to neurological research findings that suggest that the prefrontal cortex is the last part of the brain to develop, and that this part of the brain is “‘home of the so-called executive functions -- planning, settling priorities, organizing thoughts, suppressing impulses, weighing the consequences of one's actions.'” Sentencing Memo. at 13 (quoting Claudia Wallis, “What Makes Teens Tick, ” Time Magazine (Vol. 163 No. 19, May 10, 2004)). Lewis avers that, “while he was accumulating his criminal history that so troubles this court between the ages of eighteen and twenty-eight, [he] suffered from much the same immaturity and inability to make sound judgments that teenagers do.” Sentencing Memo. at 13.

         Lewis next focuses on the avoiding-disparities factor. Lewis notes that § 3553(a)(6) instructs courts to avoid sentencing disparities among similarly situated defendants, and that the Court listed this factor as exerting upward pressure on Lewis' sentence. See Sentencing Memo. at 14. Lewis disagrees, and argues that “many aspects of Mr. Lewis' life would suggest that a 188 month sentence is greater than necessary and disparate compared to others who are similarly situated.” Sentencing Memo. at 14. Lewis bases this point on his assertion that his predicate offense which triggered the § 851 enhancement would no longer be considered such a predicate offense. See Sentencing Memo. at 14. Lewis argues that the First Step Act modified this predicate to require a drug offense, described in 18 U.S.C. § 924(e), for which the defendant served more than twelve months in prison within the last fifteen years. See Sentencing Memo. at 14-15 (citing § 401). Lewis asserts that the statute under which he was convicted, N.M. Stat. Ann. § 30-31-23, “prescribes a maximum of eighteen months for the offense.” Sentencing Memo. at 15. Lewis accordingly concludes that “an § 841 offender facing initial sentencing today could not have his sentence enhanced by this conviction.” Sentencing Memo. at 15. Lewis then states, somewhat cryptically, that the Court noted, “with some displeasure, that Mr. Lewis' level had been stipulated as this earlier, and complained about the dishonesty of the prior practice of stipulating to an offense level not justified by the facts.” Sentencing Memo. at 15 (not citing to the record). Lewis argues that “such a justification existed, but was not requested or offered” at his 2010 sentencing. Sentencing Memo. at 15. Lewis also argues that “there are the racial impact of last century's crack cocaine laws and police practices alluded to during the June 5 hearing (and discussed below) that the defense believes contributed to Mr. Lewis' criminal history and sentence in this case (due to the crack/powder disparity) and the realization that for a 28 year old [sic], a 262-327 range simply did not make sense and would be unfair.” Sentencing Memo. at 15. Lewis then asserts that, while the First Step Act has reduced the disparity between powder and crack cocaine, “the other factors still impact.” Sentencing Memo. at 16. Lewis avers that a “proportionate reduction” would provide for a sentence of 140-175 months. Sentencing Memo. at 16. Lewis then concludes by arguing that the Court could sentence him to 161 months, which would yield a sentence of time served. See Sentencing Memo. at 16.

         Lastly, Lewis develops the argument, first made at the Hearing, that “race has had an impact on every stage of the criminal proceedings.” Sentencing Memo. at 16. Lewis makes a systemic argument, focusing on structural inequality and disparity that disadvantages African American males. See Sentencing Memo. at 16. Lewis first asserts that “the trend of disproportionate incarceration of persons of color ‘extends to juvenile delinquency courts.'” Sentencing Memo. at 16 (quoting Robin Walker Sterling, “Raising Race, ” 35 Nat'l Ass'n Crim. Def. Lawyers: Champion at 24 (April 2011)). Lewis then quotes at length an opinion by the Honorable Jack Weinstein, United States District Judge for the United States District Court for the Eastern District of New York:

         Excessive incarceration has disproportionately affected African Americans. “Today, a generation after the triumphs of the civil rights movement, African Americans are incarcerated at seven times the rate of whites, nearly double the disparity measured before desegregation.” [Robert Perkinson, Texas Tough: The Rise of America's Prison Empire 3 (Picador 2010) (2009)]. Racial disparities in investigation, prosecution, and sentencing have long existed in the United States.

[T]hroughout the twentieth century, both before and after developments in civil rights, blacks have been arrested, convicted, and jailed entirely out of proportion to their share of the population. Southern chain gangs ... were, to all intents and purposes, gangs of black semislaves. [B]lacks still constitute far more than their share of the prison population; they have done so for decades. Since 1933, the federal government's Uniform Crime Reports have kept track each year of the race of men and women arrested for serious crime. Blacks were arrested at a higher rate than whites even at the start; in 1940, 17 blacks per 1, 000 were arrested, and only 6 whites. [] Arrest rates for both races have skyrocketed since 1933, but the gap remains, and it gets if anything wider. The figures for blacks are, indeed, staggering.... In 1978, 35 whites out of every 1, 000 were arrested, and almost 100 out of every 1, 000 blacks-nearly one out of ten.
[Lawrence M. Friedman, Crime And Punishment in American History377-78 (1993)]. See also Thorsten Sellin, The Negro Criminal: A Statistical Note, 140 Ann. Am. Acad. Pol. & Soc. Sci. 52, 59 (1928) (“The Negro is not only convicted more frequently than whites, but he seems to receive the heavier sentences”).
Racial disparity in incarceration is particularly stark with regard to drug crimes. Between 1983 and 1987, African Americans and Whites were incarcerated for such offenses in roughly equal numbers. Joan Petersilia, When Prisoners Come Home: Parole And Prisoner Reentry 29 (2003)]. Between 1983 and 1998, the population of African Americans imprisoned for drug offenses increased twenty-six times, compared to an eighteenfold increase for Hispanics and a sevenfold increase for Whites. Id. at 28 (citing Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (1995)). African Americans comprised only 11 to 12 percent of the United States population during this period. Id. at 28.
Among those convicted of drug offenses, racial disparities exist in both the likelihood of imprisonment and the length of imprisonment. 2004 U.S.S.C. Report 122 (“The odds of a typical Black drug offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical White offender, while the odds of a Hispanic drug offender are about 40 percent higher.”); id. at 123 (“The typical Black drug trafficker receives a sentence about ten percent longer than a similar White drug trafficker. This translates into a sentence about seven months longer.”). Cf. Id. at 129 (African Americans are less likely than defendants of other races to receive downward departures under the sentencing guidelines).

Lewis; Sentencing Memo. at 17-18 (quoting United States v. Bannister, 786 F.Supp.2d 617, 652-53 (E.D.N.Y. 2011)). Lewis then argues that “prior record enhancement practices have significant unintended consequences, including exacerbating race disparities.” Sentencing Memo. at 18. Lewis does not, however, tie these statistics to his case or experience, and does not show specifically how his criminal history category is affected by his race.

         Lewis concludes, arguing that “a person sentenced today would not face the same § 851 enhancement” he received. Sentencing Memo. at 19. Lewis also argues that, because: (i) his criminal history is less serious than it appears; (ii) he lacks any discipline in prison over the past five years; (iii) “the devastating blows he suffered in prison with the deaths of his son and brother”; and (iv) he has matured throughout his time in prison, the Court should sentence Lewis to 161 months. Sentencing Memo. at 18-19.

         4.The Response.

         The United States filed a response. See Response by the United States to the Defendant's Sentencing Memo. at 1, filed June 12, 2019 (Doc. 184)(“Response”). The United States begins by observing that Lewis' requested sentence of 161 months is “27 months less than the low-end of the” USPO calculation of 188 to 235 months. Response at 1. The United States also notes that Lewis' request is twenty-seven months shorter than the sentence imposed by Judge Hansen, which the Court affirmed in its MOO. See Response at 1-2. Accordingly, the United States opposes Lewis' request.

         The United States asserts that the FSA reduced the “statutorily authorized imprisonment penalty” for Lewis' conviction to between ten and thirty years. Response at 2. The United States then describes the USPO's calculation, which began with a stipulated offense level of 34 and ended with an offense level of 31 after a three-level reduction under USSG § 3E1.1 (Acceptance of Responsibility). See Response at 2 (citing Plea Agreement Plea Agreement ¶¶ 7-9, at 3-5, filed November 3, 2009 (Doc. 75)). The United States asserts that, under the 2009 Guidelines, this offense level, for a career offender at a criminal history category VI, yielded a sentence of 188 to 235 months. See Response at 2-3 (citing PSR ¶ 107, at 39). The United States then avers that the USPO, in its FSA Memorandum, considered the effect of the FSA on Lewis' sentence and accordingly revised the offense level to 30. See Response at 3 (citing Memorandum at 1, filed March 1, 2019 (Doc. 158)(“USPO Memorandum”)). Lewis remained a career offender in the USPO's eyes, however, rendering Lewis ineligible for a sentencing reduction. See Response at 3 (citing USPO Memorandum at 2). The United States asserts that the Court agreed with the USPO calculation in its MOO. See Response at 4 (citing MOO at 69).

         The United States then turns to the § 3553(a) factors. See Response at 4. The United States argues that “[n]one of the factors listed in § 3553(a) warrant a variance from the Sentencing Guidelines.” Response at 5. Regarding avoiding sentencing disparities, the United States avers that this factor “weighs heavily in favor” of keeping Lewis' sentence within the Guidelines. Response at 5. The United States notes that, in United States v. Crews, 2019 WL 2248650 (W.D. Pa. May 24, 2019)(Conti, J.), the Honorable Joy Flowers Conti, United States District Judge for the United States District Court for the Western District of Pennsylvania, declined to reduce the defendant's 188-month sentence and instead reduced the period of supervised release. See Response at 5-6 (citing 2019 WL 2248650, at *6-7). The United States also summarizes United States v. Russo, 2019 WL 1277507 (D. Neb. Mar. 20, 2019)(Smith Camp, J.), in which the Honorable Laurie Smith Camp, United States District Judge for the United States District Court for the District of Nebraska, declined to reduce a career offender's 188-month sentence after concluding that the First Step Act requires only retroactive application of the reduced crack-cocaine sentences, and not a full re-sentencing under all changed laws and Guidelines. See Response at 6 (citing 2019 WL 1277507 at *1). The United States avers that Judge Smith Camp declined to reduce the defendant's sentence in part because it would be unfair to other offenders serving sentences for non-crack-cocaine-related offenses. See Response at 6 (citing 2019 WL 1277507, at *1). The United States concludes that the need to avoid sentencing disparities outweighs Lewis' argument that § 851 should no longer apply, as it would “‘work an injustice to offenders sentenced in the past who did not have a crack cocaine conviction qualifying for sentence reduction pursuant to the Fair Sentencing Act of 2010.'” Response at 6 (quoting United States v. Russo, 2019 WL 1277507, at *1).

         Regarding the need to impose a just punishment, the United States argues that “this was not one of the more familiar cases where a simple, unarmed transporter in a drone-like fashion on a Greyhound bus or an Amtrak train is possessing with intent to distribute narcotics.” Response at 7. Instead, the United States asserts that “the previously felony convicted Defendant was found by law enforcement in possession of multiple drug bundles, cocaine, cocaine base, marijuana and a loaded firearm within arm's reach.” Response at 7. Accordingly, the United States concludes that the Court must evaluate “not only . . . the offense but also . . . the Defendant” in order to impose a punishment “sufficient to deter the Defendant and others from criminal conduct.” Response at 7. The United States avers that lengthy prison sentences deter similar conduct, because the “defendant will weigh the risk possible [sic] consequences, ” and an “insignificant irritant” renders it more likely that others will “commit the act.” Response at 8. The United States asserts, in an empirical argument, that a lengthy “sentence gives meaning to general deterrence because the word of a heavy sentence will likely travel on the criminal street and forewarn others.” Response at 8.

         The United States identifies that most of the factual disagreements it has with Lewis concern his criminal history. See Response 8. The United States asserts that Lewis “has long been known to law enforcement, ” and that he “engaged in a steady succession of criminal activity that has witnessed many convictions and arrests” between 1997 and 2007. Response at 8. The United States argues that Lewis' criminal history “includes serial acts of violence.” Response at 8. Responding to Lewis' discussion of neurological research of adolescent impulsivity, the United States argues that Lewis' “criminal history is largely characterized not so much by being the obedient servant of impulse as it is characterized by thought-out act of retribution or the pursuit of personal pleasure of monetary gain.” Response at 9. The United States further asserts that “any youthful relationship with impulse and immaturity, if valid, would give way to some reflection about the consequences of his actions.” Response at 9. The United States does not, however, refer specifically to any of Lewis' predicate offenses or dispute the neurological research on which Lewis bases his argument.

         Last, the United States turns to Lewis' arguments concerning racial inequity in the criminal justice system. See Response at 10. The United States argues that Lewis has not specifically shown how systemic disparities affected his criminal history. See Response at 10. Instead, the United States asserts that Lewis' “criminal record carries a strong negative momentum and unfortunately underscores that [Lewis] has reflexively again and again chosen to opt for a life of crime.” Response at 10. The United States then briefly posits “that a number of universally well-regarded black thinkers, scholars, and commentators such as Thomas Sowell, Shelby Stelle, Walter Williams, and Jason L. Riley, for instance, do not subscribe to the theory of race having a discriminating impact on every stage of the criminal justice system.” Response at 10. The United States does not, however, cite specific work nor specific statistics rebutting Lewis' assertions.

         The United States then reiterates its assertion that Lewis' 188-month sentence is at the “low-end” of the Guidelines, reflects the “seriousness of his offense, ” promotes respect for the law, and provides a just punishment. Accordingly, the United States requests that the Court preserve Lewis' 188-month sentence. See Response at 11.

         5. The Supplement.

         On November 5, 2019, while the Court was writing this Memorandum Opinion and Order, Lewis filed additional briefing on developments in this area's caselaw. See Supplemental Authority Regarding the Ability to Vary, filed November 5, 2019 (Doc. 188)(“Supplement”). In his Supplement, Lewis seeks to “notif[y] this Court of caselaw developments since his May 15, 2019[, ] motion to reconsider[.]” Supplement at 1. Lewis argues that, since he filed the Motion in May, 2019, “numerous cases have affirmed a Court's ability to impose a variance when resentencing a defendant pursuant to Section 404 of the First Step Act.” Supplement at 1. Lewis then compiles sixteen cases that he asserts support this contention and provides, for each case, brief summaries. See Supplement at 1-8.

         Lewis first notes United States v. Martin, No. 1:05-CR-21, 2019 WL 4862055 (N.D. W.Va. Oct. 2, 2019)(Keeley, J.). See Supplement at 1-2. In that case, the defendant was convicted in 2006 of conspiring to distribute and aiding and abetting the distribution of cocaine base, as well as distribution of cocaine base and use of a firearm in relation to a drug trafficking offense. See 2019 WL 4862055, at *1. The defendant was initially sentenced to 270 months incarceration but, in 2010, on remand from the United States Court of Appeals for the Fourth Circuit, the district court varied from a guideline range of life imprisonment for the defendant's relevant conduct and sentenced him again to a total of 270 months. See 2019 WL 4862055, at *1. In 2019, the defendant sought sentence reduction under the First Step Act, which the court denied, concluding that “he had previously been sentences in accord with Sections 2 and 3 of the Fair Sentencing Act of 2010 and, in any event, would still have a guidelines range of life imprisonment.” United States v. Martin, 2019 WL 4862055, at *1. On reconsideration, the court concluded that the defendant's 2010 resentencing was imposed before the Fair Sentencing Act was enacted, and so the defendant was eligible for relief under the First Step Act. See 2019 WL 4862055, at *3. The court declined to reduce the defendant's sentence to time served or, alternatively, 210 months, because such a sentence would not comport with § 3553(a)'s policy goals in light of his use of a firearm and the amount of cocaine base he distributed. See 2019 WL 4862055, at *4. The court nonetheless reduced the defendant's sentence to 240 months, based on the defendant's good behavior, educational achievements in prison, and health issues. See 2019 WL 4862055, at *3-5. Lewis argues that the court “would ‘not take into account' the relevant conduct drug weight (11.23 kilograms) because it did not base the statutory penalties on relevant conduct in 2011, ” and that the court “applied section 3553(a), and considered post-sentencing conduct.” Supplement at 2 (quoting United States v. Martin, 2019 WL 4862055, at *3).

         Lewis next turns, without comment, to United States v. Tate, No. 07-CR-259(1), 2019 WL 4674044 (D. Minn. Sept. 25, 2019), see Supplement at 2, in which the defendant sought resentencing under the First Step Act of a 2007 conviction for conspiracy to distribute at least fifty grams of crack cocaine, see 2019 WL 4674044, at *1. The defendant was initially sentenced to 211 months' imprisonment, a downward variance from the relevant guidelines' low end based on “§ 3553(a) factors; [the defendant's] criminal history; [his] position in relation to his co-defendants”; the sentencing “disparities between crack and cocaine”; and to reflect a reasonable graduated sanction considering [he] had “never served a particularly long sentence before.” 2019 WL 4674044, at *1. Under the First Step Act, the defendant's guideline sentence ranged from 188 to 235 months (down from 262-327 months), but the court reduced the defendant's sentence to 180 months “in light of the new guidelines range, as well as the § 3553(a) factor[.]” 2019 WL 4674044, at *3.

         Lewis then cites United States v. Jackson, No. 8:00-CR-346-T-17, 2019 WL 4222686 (M.D. Fla. Sept. 5, 2019)(Kovachevich, J.), see Supplement at 2, in which the defendant sought resentencing, under the First Step Act, of a 2002 life sentence for conspiracy to distribute and distribution of eighty-eight grams of cocaine base, see 2019 WL 4222686, at *1. The defendant's mandatory minimum sentence was life imprisonment, based on his two prior qualifying felonies under 21 U.S.C. § 851. See 2019 WL 4222686, at *1. The First Step Act rendered the defendant's guideline sentence range 360 months to life. See 2019 WL 4222686, at *2. Acknowledging that the First Step Act “does not entitle a defendant to a plenary sentence, but it also ‘does not impose any artificial guideline limits on a reviewing court, '” the court reduced the defendant's sentence to time served, because “the guidelines sentence of 360 months is unnecessary to meet the objectives of sentencing[.]” 2019 WL 4222686, at *5.

         Lewis also summarizes United States v. Brown, No. 07-cr-20195-01, 2019 WL 4126555 (E.D. Mich. Aug. 30, 2019)(Ludington, J.), see Supplement at 2-3, in which the defendant was sentenced to 250 months -- a twelve-month variance from his guideline range of 262-327 months -- in 2008 for conspiracy to distribute fifty grams or more of cocaine base, see 2019 WL 4126555, at *1. The court concluded that 18 U.S.C. § 3582(c)(1)(B) “is the proper vehicle for implementing” the First Step Act, that the First Step Act “does not require plenary resentencing, ” and analyzed the defendant's First Step Act motion under the § 3553(a) factors. 2019 WL 4126555. at *3. The parties acknowledged that the First Step Act did not affect the defendant's guideline range, but the court reduced the defendant's sentence to 230 months in light of his lower mandatory minimum, and his “post-conviction conduct [as] a relevant factor under” § 3553(a). 2019 WL 4126555, at *5.

         Lewis then directs the Court to United States v. Miles, No. 3:02-CR-548-33, 2019 WL 4024776 (D.S.C. Aug. 27, 2019)(Currie, J.). See Supplement at 3. In United States v. Miles, the defendant was sentenced to 360 months on an ambiguous jury verdict that did not specify whether he was guilty of conspiracy involving five kilograms or more of cocaine or fifty grams or more of cocaine base. See 2019 WL 4024776, at *2. Applying the rule of lenity, the court first concluded that the defendant's conviction related to cocaine base, rendering him eligible for relief under the First Step Act. See 2019 WL 4024776, at *2. The court then agreed that § 3582(c)(1)(B) is the applicable provision to implement the First Step Act such that the defendant was not entitled to full resentencing. See 2019 WL 4024776, at *2. The court noted that, although the defendant's mandatory minimum sentence was reduced from a sentence of ten years to life, to a sentence of five to forty years, the defendant's current sentence “is at the bottom of his current guideline range of 360 to 480 months.” 2019 WL 4024776, at *3. The defendant's criminal history category, however, would have been reduced had he been sentenced in 2019, leading the court to conclude that the defendant “did not have a serious prior criminal record.” 2019 WL 4024776, at *4. Considering the defendant's age (forty-seven), educational achievements in prison, positive disciplinary record, and active involvement in his family members' lives, the court reduced the defendant's sentence to 295 months. See 2019 WL 4024776, at *5.

         Lewis next cites United States v. Robinson, No. 02-CR-227, 2019 WL 3867042 (D. Md. Aug. 15, 2019)(Messitte, J.), see Supplement at 4, in which the defendant sought resentencing, under the First Step Act, of a 2003 sentence of 360 months' imprisonment for possession with intent distribute 312 grams of crack cocaine, see 2019 WL 3867042, at *1-2. In 2003, the defendant's offense level was 38 and his criminal history category was VI, resulting in a sentencing range of 360 months to life imprisonment, but the sentencing court reduced the defendant's sentence to 264 months' imprisonment following the Supreme Court's decision in United States v. Booker. See 2019 WL 3867042, at *2. The defendant's sentence was further reduced to 210 months' imprisonment in 2009, following Amendment 706 to the Guidelines. See 2019 WL 3867042, at *1. On the defendant's First Step Act motion, the court first adopted what it termed the “elemental approach, ” to determine that the defendant's underlying conviction qualifies as a covered offense under the First Step Act. 2019 WL 3867042, at *2-3. The court looked only at the statute under which the defendant was convicted and not at the fact that the amount of drugs the defendant possessed would have subjected him to the same sentencing range regardless of the First Step Act's application. See 2019 WL 3867042, at *3. The court first rejected the United States' argument that the defendant was ineligible for a First Step Act reduction because he was initially sentenced to a below-Guidelines sentence, noting that several other district courts had reduced similarly situated defendants' sentences. See 2019 WL 3867042, at *5 (compiling cases). Turning to the § 3553(a) factors, the court noted that, while the defendant “was convicted of possessing a sizable quantity of cocaine with intent to distribute, his crimes were not violent, nor did he possess a firearm when committing them.” 2019 WL 3867042, at *6. The court also opined that, as the ...


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