WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

ORDER

These matters come before the Court on defendant Perry Malone's Motion to Reduce his Life Sentence Pursuant to the First Step Act (doc. 265 in 98-0183, doc. 282 in 98-0184). The Motion has been briefed, including supplemental briefing to address the impact of the Eleventh Circuit's recent decision in United States v. Jones, 962 F.3d 1290 (11^th Cir. 2020).

I. Relevant Background.

In each of these criminal matters, Malone is presently serving a life term of imprisonment. The sentencing history in each case is critical to the present Motion.

In Criminal No. 98-0183, Malone was charged with, among other offenses, conspiracy to possess with intent to distribute more than 5 kilograms of cocaine and more than 1.5 kilograms of crack cocaine, in violation of 21 U.S.C. § 846. The case went to trial in August 1999, at which time a jury found Malone guilty on the § 846 count, but made no specific drug quantity determinations. At the sentencing hearing held in November 1999, Judge Vollmer found by a preponderance of the evidence that Malone was responsible for more than 1.5 kilograms of crack cocaine. (Doc. 260, PageID.338.) Judge Vollmer indicated that the Government had properly filed a notice of enhancement under 21 U.S.C. § 851, expressing its intent to seek an enhanced penalty based on Malone's history of at least two prior drug felonies, including a 1995 state-court conviction for possession of cocaine and a 1991 state-court conviction for conspiracy to distribute cocaine. On that basis, the sentencing judge explained that "[t]hese two prior felony drug convictions would result in the Defendant being sentenced to a mandatory term of life imprisonment without release under [Title] 21, United States Code, Section 841(b)(1)(A), ... which will require the sentence that is being imposed." (Doc. 260, PageID.344-45.) Judge Vollmer then imposed a sentence of life imprisonment in Criminal No. 98-0183. (Id., PageID.346.)

In Criminal No. 98-0184, Malone was charged with, among other offenses, conspiracy to possess with intent to distribute approximately one kilogram of crack cocaine, in violation of 21 U.S.C. § 846 (Count 1), and aiding and abetting the attempt to possess with intent to distribute 285 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 2 (Count 3). The case went to trial in August 1999, at which time the jury found Malone guilty of Counts 1 and 3, but did not make specific drug quantity determinations. At the sentencing hearing held in November 1999, Judge Butler adopted the PSR and found that Malone was responsible for at least 1 kilogram of crack cocaine in connection with Count 1. Pursuant to the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(A) as they existed at that time and the Government's notice of enhancement under § 851 for Malone's two prior drug felony convictions (as described above), Judge Butler imposed a statutory mandatory sentence of life imprisonment on Counts 1 and 3 in Criminal No. 98-0184.

In his Motion to Reduce Sentence, Malone argues that (i) because "there was no jury finding of any specific quantity in excess of 50 grams, ... Mr. Malone is eligible for a sentence reduction pursuant to Section 404 of the First Step Act" (doc. 265 in 98-0183, doc. 282 in 98-0184, at 9); (ii) because of such eligibility, "the Court is free to fashion a penalty that is 'sufficient, but not greater than necessary' to accomplish the statutory purposes set forth in 18 U.S.C. § 3553(a)" in these cases (id. at 9-10); (iii) Malone has amassed an extraordinary record of rehabilitative efforts in prison; and (iv) the mandatory life sentences imposed here are no longer applicable, and this Court should modify Malone's sentences in accordance with the "presently applicable guideline range of 324 - 405" months (id. at 13). In a supplemental brief, Malone shifts gears by stressing that his "motion is based upon the Eleventh Circuit's recent decision in United States v. Jones ..., and it is further buttressed by his exemplary prison record." (Doc. 275 in 98-0183, doc. 288 in 98-0184.) The Government opposes the Motion on all stated grounds.

II. Analysis.

A. Key Features of the First Step Act.

Signed into law on December 21, 2018, the First Step Act of 2018 includes multiple provisions directed at recidivism reduction and sentencing reform. Of particular relevance to Malone's Motion, Section 404 of the First Step Act provides that "[a] court that imposed a sentence for a covered offense may, on motion of the defendant ..., 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." First Step Act of 2018, Pub. L. 115-391, § 404(b) (Dec. 21, 2018). The term "covered offense" is 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 ..., that was committed before August 3, 2010." In turn, Section 2 of the Fair Sentencing Act increased the minimum quantity of crack cocaine needed to trigger certain enhanced statutory penalties, such that the threshold to implicate the mandatory penalties of 21 U.S.C. § 841(b)(1)(A)(iii) increased from 50 grams to 280 grams. Likewise, under Section 2 of the Fair Sentencing Act, the mandatory penalties of § 841(b)(1)(B)(iii) came into play only for offenses involving 28 grams or more of crack cocaine, as opposed to the 5-gram threshold that had applied previously. Section 404 of the First Step Act effectively makes these provisions retroactively applicable to defendants (like Malone) who were sentenced for offenses predating the August 3, 2010 effective date of the Fair Sentencing Act. Section 404(c) emphasizes, however, that any such retroactive sentencing reductions under the First Step Act are discretionary, inasmuch as "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Pub. L. 115-391, § 404(c).

Another significant provision of the First Step Act for purposes of this Motion is Section 401, which ratchets down the duration of certain mandatory statutory penalties and restricts the types of prior offenses that trigger such enhanced penalties. Most notably for the instant Motion, Section 401 amends the portion of 21 U.S.C. § 841(b)(1)(A)(iii) that yielded mandatory life sentences for Malone in both 98-0183 and 98-0184 based on his two prior felony drug convictions. As amended by the First Step Act, this provision in § 841(b)(1)(A)(iii) eliminates the mandatory life sentence, and instead states that "after 2 or more prior convictions for a serious drug felony ... have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years." 21 U.S.C. § 841(b)(1)(A)(iii) (2020). Unfortunately for Malone, Congress elected not to make this amendment retroactive; indeed, Section 401 of the First Step Act expressly provides that "the amendments made by this section[] shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment ." Pub. L. 115-391, § 401(c) (emphasis added).

B. This Court Lacks Authority to Reduce Malone's Sentences.

In seeking sentence reduction under the First Step Act, Malone hangs his hat on the Eleventh Circuit's published opinion from earlier this summer in United States v. Jones, 962 F.3d 1290 (11^th Cir. 2020). Indeed, Jones provides a road map of binding precedent for analyzing Malone's Motion. As an initial matter, any lingering doubt as to whether the sentences imposed in Malone's cases were for "covered offenses" within the meaning of Section 404 of the First Step Act is eradicated by Jones. The Eleventh Circuit construed Section 404 as meaning that from the court record, "the district court must determine whether the movant's offense triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii). If so, the movant committed a covered offense." Jones, 962 F.3d at 1301. Unquestionably, Malone's offenses in each of 98-0183 and 98-0184 triggered the higher penalties (and particularly the mandatory life sentence for offenders with two prior felony drug convictions) found in § 841(b)(1)(A)(iii) at the time of his sentencing hearings. For that reason, the Court readily concludes that Malone was sentenced for a covered offense in each of 98-0183 and 98-0184 because the District Court sentenced him for violations of section 841 for which the Fair Sentencing Act modified the statutory penalties.

The "covered offense" finding does not conclude the analysis. To the contrary, Jones teaches that "a movant's satisfaction of the 'covered offense' requirement does not necessarily mean that a district court can reduce his sentence ." 962 F.3d at 1303 (emphasis added). This is because of the "as-if" clause in § 404(b), which provides that any reduction must be "as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." Pub. L. 115-391, § 404(b). Jones goes on to elaborate that "[i]f the movant's sentence would have necessarily remained the same had the Fair Sentencing Act been in effect, then the district court lacks the authority to reduce the movant's sentence. ... [T]he First Step Act does not permit a reduction when the Fair Sentencing Act could not have benefitted the movant." 962 F.3d at 1303. Such is the case here.

It is undisputed that at sentencing in 98-0183 and 98-0184, the sentencing judge made a finding that Malone was responsible for at least 1.5 and 1 kilogram of crack cocaine, respectively. The implication of those determinations is that, in each of the two cases, Malone was subject to the same mandatory penalty of life imprisonment after the Fair Sentencing Act of 2010 went into effect that he was prior to the effective date of the Fair Sentencing Act of 2010. That is to say, Malone remained squarely in the enhanced penalty category of 21 U.S.C. § 841(b)(1)(A)(iii) both before and immediately after the Fair Sentencing Act of 2010 was enacted. Both before and after the Fair Sentencing Act of 2010, a defendant responsible for at least 1 kilogram of crack cocaine with two prior felony drug convictions was subject to a mandatory statutory life term of imprisonment. Compare 21 U.S.C. § 841(b)(1)(A)(iii) (1998) with id. § 841(b)(1)(A)(iii) (2012). The Fair Sentencing Act could not have benefitted Malone in either 98-0183 or 98-0184; therefore, the First Step Act does not permit a reduction in this case. In that regard, Malone is situated identically to defendant Jackson from the Jones case, as to whom the Eleventh Circuit applied the following reasoning:

"Jackson was sentenced to a statutory mandatory sentence of life imprisonment based on a drug-quantity finding of 287 grams of crack cocaine and his three prior felony drug convictions. The district court correctly concluded that it could not reduce Jackson's sentence because his drug-quantity finding meant that he would face the same statutory penalty of life imprisonment under the Fair Sentencing Act. See 21 U.S.C. § 841(b)(1)(A)(iii) (2012)."

The logical defect upon which Malone's Motion founders is his unfounded assumption that he is no longer subject to a mandatory life sentence provision. In his Motion, Malone argues that his Sentencing Guideline range is from 324 to 405 months, even as he notes that his "guidelines were supplanted by the mandatory life sentence he faced pursuant to the 851 enhancement, which required a life sentence." (Doc. 265 in 98-0183, doc. 282 in 98-0184, at 13 & n.9.) The problem is that Malone's guidelines were supplanted by that same mandatory life sentence provision both before and after the Fair Sentencing Act of 2010 went into effect. Implicit in Malone's Motion is an argument that he is somehow entitled to the benefit of Section 401 of the First Step Act of 2018, which eliminated the mandatory life sentence provision of 21 U.S.C. § 841(b)(1)(A)(iii) and replaced it with a 25-year mandatory minimum after two or more prior convictions for a serious drug felony. But Section 401 is not retroactive. Recall that Congress delineated in Section 401(c) that the Section 401 amendments to § 841(b)(1)(A)(iii) apply only to those offenses committed prior to December 21, 2018 for which sentence had not yet been imposed as of December 21, 2018. Obviously, Malone was sentenced many years prior to that date. As such, he remains subject to the mandatory life sentence provision of § 841(b)(1)(A)(iii) that was in effect at the time of his sentencings and that remained in effect in the immediate aftermath of the effective date of the Fair Sentencing Act of 2010, notwithstanding the non-retroactive eradication of the mandatory-life provision by Section 401 of the First Step Act of 2018. Contrary to Malone's insistence, this Court does not have the discretion to reduce his sentence pursuant to the First Step Act under these circumstances.

III. Conclusion.

For all of the foregoing reasons, Malone's Motion to Reduce His Life Sentence Pursuant to the First Step Act (doc. 265 in 98-0183, doc. 282 in 98-0184) is denied. Because this result is dictated by binding precedent in United States v. Jones as well as the plain language of the First Step Act of 2018, the Court certifies that any appeal would not be taken in good faith; therefore, Malone will not be permitted to appeal from this Order in forma pauperis.

DONE and ORDERED this 12th day of August, 2020.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE