Robert E. Payne, Senior United States District Judge

Richard D. Cooke, Matthew Childs Ackley, United States Attorney's Office, John Staige Davis, V, Williams Mullen, Richmond, VA, for United States of America.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court on the DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO TITLE 18 U.S.C.§ 3582(c) (ECF No. 213) which, after appointment of counsel, was replaced by DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 217).

BACKGROUND

On March 1, 2007, Oronde S. Mabry ("Mabry") pled guilty to a single count of conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 846 (ECF No. 36). On June 8, 2007, the Court conducted a sentencing hearing. Mabry objected to the quantity of controlled substance in the Presentence Report. Based on the testimony of a Drug Enforcement Administration Task Force Officer, the Court overruled the objection and held, by a preponderance of the evidence, that Mabry was accountable for 1.5 kilograms of cocaine base.

However, at the sentencing hearing on June 8, 2007, Mabry indicated the desire to withdraw his guilty plea and the sentencing therefore was continued to allow him an opportunity to consider to consider that course of action.

Mabry thereafter decided to continue with his plea of guilty and, on July 27, 2007, the Court held a second sentencing hearing in which it adopted its previous findings, concluded there was a total offense level of 37, criminal history Category I, and a guideline range of 210-262 months imprisonment. Mabry was sentenced to 210 months in prison. His appeal was dismissed on motion of the United States.

On October 23, 2008, Mabry filed a Motion to Vacate his conviction under 28 U.S.C. § 2255 (ECF No. 104). That matter was referred to a United States Magistrate Judge for a Report and Recommendation. After an evidentiary hearing, the Magistrate Judge concluded that Mabry had lied, was lacking credibility, and had given inconsistent conflicting accounts and that he admitted (while testifying at the hearing) that he had previously provided false information to the United States Court of Appeals for the Fourth Circuit in a Notice of Appeal related to this case.

On June 8, 2012, Mabry filed a motion for retroactive application of sentencing guidelines to crack cocaine offenses, pursuant to 18 U.S.C. § 3582(c) (ECF No. 170) which was opposed by the United States, and after consideration of the motion, it was denied. On December 15, 2015, Mabry filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582 (ECF No. 197) which was opposed by the United States and which was denied.

On March 1, 2019, Mabry, proceeding pro se , filed DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO TITLE 18 U.S.C.§ 3582(c) (ECF No. 213). Counsel was appointed and DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 217) was filed. The Probation Officer filed a First Step Act Application Amendment Worksheet indicating that, based on the drug weight arrived at in the Presentence Report and found by the Court after the sentencing hearing, there was no change in the statutory penalty.

Mabry asks for a sentence of time served arrived at as explained in the following table (ECF No. 217, p. 10):

Guideline Range Calculation Drug Quantity: 1.5 kilograms of cocaine base Before Fair Sentencing After Fair Sentencing Act Act Statutory 40 years (21 U.S.C. § 20 years (21 U.S.C. § maximum 841(b)(1)(B)) 841(b)(1)(C)) § 2D1.1 offense 36 30 level § 3E1.1 0 0 reduction Final offense 37 31 level Crim. history Category I Category I category Guideline range 210-262 months 108 to 135 months Mandatory 5 years None minimum Sentence imposed 210 months Time served suggested sentence

The United States opposes the motion on the ground that Mabry "is ineligible for relief because the quantity of crack cocaine for which he was responsible exceeds the increased threshold in the Fair Sentencing Act." (UNITED STATES' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FORM MODIFICAITON OF SENTENCE UNDER THE FIRST STEP ACT OF 2018, ECF No. 218, p. 1). Further, the United States argues that, even if Mabry were eligible for relief, "the Court should deny defendant's motion as a matter of discretion due to his false testimony at an evidentiary hearing before this Court, his submissions of a false pleading to the United States Court of Appeals for the Fourth Circuit, and the amount of cocaine base involved in his underlying drug trafficking conspiracy."

DISCUSSION

The threshold issue in this case is whether Mabry is eligible for relief under Section 404 of the Fair Sentencing Act.

The First Step Act of 2018 became effective on December 21, 2018. See First Step Act of 2018, Pub. L. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018). Section 404 of the First Step Act makes the Fair Sentencing Act of 2010 retroactively applicable to defendants who committed controlled substance offenses before the Fair Sentencing Act was enacted on August 3, 2010. The Fair Sentencing Act altered the quantities of cocaine base subject to the first three penalty provisions of 21 U.S.C. § 841(b)(1). In particular, the quantity that triggered the ten year mandatory minimum for violation of that statute was increased from 50 grams of cocaine base to 280 grams of cocaine base and the quantity that triggered the five year mandatory minimum of the statute was increased from five grams of cocaine base to 28 grams of cocaine base. The quantity that triggered application of the so-called catch-all provision, 21 U.S.C. § 841(b)(1)(C), was increased from amounts under five grams of cocaine base to amounts under 28 grams.

The dispute between the defendant and the United States is over whether Mabry is eligible for a reduction under the First Step Act. That question of statutory interpretation begins with an examination of the text of the statute. Section 404(b) of the First Step Act is captioned "Defendants Previously Sentenced." The text of the statute says that:

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 ... were in effect at the time the covered offense was committed.

The term "covered offense" is defined by Section 404(a) and provides that:

In this section [Section 404], 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 ... that was committed before August 3, 2010.

The position of the United States and the position of the defendant posit the issue of eligibility as dependent upon the amount of controlled substance involved in the violation of law committed by Mabry. In the defendant's view, eligibility depends upon the amount of controlled substance alleged in the Indictment (or, if applicable, any other charging document). In the view of the United States, eligibility depends upon the amount of controlled substance found by the Court (or the jury if it was a contest case rather than a plea) at the sentencing hearing based on the findings made by the district judge (if the issue of quantity was contested at the hearing) or the Statement of Facts (if not objected to by the defendant at the hearing) or the amount agreed to by the defendant (by Stipulation or otherwise).

Each side has presented decisional authority in support of its position. And, indeed, there has been much written on the topic whether eligibility for reduction under the First Step Act depends on the quantity of controlled substance alleged in the Indictment (the "Indictment-Controls Theory") or the weight in the Presentence Report or stipulated to in the Statement of Facts accompanying a guilty plea (the "Conduct-Controls Theory"). An excellent discussion of the two positions is found in United States v. Hardnett, –––, F.Supp.3d ––––, No. 3:03cr12, 2019 WL 5445888 at *1 (E.D. Va. October 24, 2019). Under Section 404, a defendant's eligibility for reduction of sentence depends upon whether the defendant committed, before August 3, 2010, a violation of a federal criminal statute of a particular description (a statute for which the penalties were modified under Section 2 or Section 3 of the Fair Sentencing Act). Nothing in the First Step Act provides that a defendant's eligibility for a reduction of sentence under the First Step Act depends upon any quantity of the controlled substance regulated by the federal criminal statute that is violated by the defendant. Therefore, under the plain text of § 404(b) eligibility for reduction of sentence under the First Step Act does not depend upon quantity at all.

Mabry violated a federal criminal statute before August 3, 2010, the statutory penalties for which were modified by Section 2 or 3 of the Fair Sentencing Act of 2010. He is thus eligible for a reduction of sentence under the plain text of § 404(b).

However, whether to grant a reduction of sentence is a matter of discretion and, in exercising that discretion the Court must consider all the facts in the case including those set forth in the motion for reduction of sentence, those in the Presentence Report or otherwise, and the record of the case in its entirety. That means that, inter alia, the Court can consider the quantity of controlled substance proved by the record. I. Should the Defendant's Sentence Be Reduced?

The Indictment in the case charged Mabry with participating in a conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base. In paragraph 22 of the Presentence Report (ECF No. 216-1), Mabry was involved in cocaine base drug controlled-purchase transactions on July 15, 2005 for 3.737 grams, September 28, 2005 for 3.060 grams, and August 23, 2006 for 5.0 grams. That represents a total of 11.79 grams for controlled purchases in which the defendant was involved. And, the testimony of the Drug Enforcement Officer (ECF No. 74) established that Mabry was responsible for distribution and possession with intent to distribute 1.5 kilograms of cocaine base. In sum, the record reflects that Mabry was an important member of the conspiracy and that he was responsible for distributing an extremely significant amount of controlled substance into the community.

Also, it is appropriate to take into account the fact that Mabry's record before this Court includes offering of untrue testimony both in this Court and the in the United States Court of Appeals for the Fourth Circuit. As the Court previously has held, that evinced a lack of remorse and a lack of respect for the law.

On the other hand, it is necessary to consider the text and intent of the Fair Sentencing Act and the First Step Act. On that score, the record shows that, if Mabry were being sentenced today, he would be subject to a considerably lesser guideline sentence than that which was in fact imposed. That is because of the retroactive application of the Fair Sentencing Act by virtue of the First Step Act. Of course, the guidelines for Mabry do not represent the limit respecting sentence. The Court certainly could consider the quantity of drugs for which he was held accountable in deciding whether to impose a variance sentence or some kind of upward departure even from the newly calculated guidelines.

Also, it is necessary to consider Mabry's post-conviction record. United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019). The record shows that Mabry has had no disciplinary infractions while in prison and that he is currently confined in a low level security facility. He has worked while he has been in prison in both the commissary and the UNICOR operation. He has been assigned as the head commissary employee for the past three years. He has completed his financial obligation to the Court. Also, Mabry has completed a significant number of educational and vocational classes and drug education training. He has prepared himself for re-entry into the community. He has spent time in prison attempting to better himself.

Considering the record as a whole, the Court concludes that Mabry is eligible for reduction of sentence and that his sentence should be reduced to time served as of ten (10) business days from the date of this Memorandum Opinion.

CONCLUSION

For the foregoing reasons, DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 217) will be granted; and the DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO TITLE 18 U.S.C.§ 3582(c) (ECF No. 213) will be denied as moot.

It is so ORDERED.