Opinion
CASE NO. 8:05-CR-406-T-17AAS
07-18-2019
UNITED STATES OF AMERICA, v. ALVIN BARNES.
ORDER
This cause is before the Court on:
Dkt. 84 First Step Memorandum
Dkt. 86 Unopposed Motion for Sentence Reduction Under the First Step Act of 2018
Defendant Alvin Barnes moves for a reduction of Sentence under Section 404 of the First Step Act of 2018 and 18 U.S.C. Sec. 3582(c)(1)(B). I. Background
Defendant Barnes entered a guilty plea to Count 1 of the Indictment, which charged Defendant Barnes with possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(iii). The Plea Agreement establishes that Defendant Barnes was accountable for 18 grams of cocaine base (Dkt. 18, p. 13). On June 15, 2007, Defendant Barnes was sentenced to 188 months imprisonment, 48 months supervised release, fine waived, and a special assessment of $100.00.
The Final PSR indicates that Defendant Barnes was accountable for 37.3 grams of crack cocaine. (Dkt. 72, p. 5). At sentencing, there were no objections to the factual accuracy of the report, or the application of the Guidelines to those facts, and the Court adopted the Final PSR without change. (Dkt. 32, Sentencing Transcript; Dkt. 58, Statement of Reasons, p. 2).
At sentencing, Defendant Barnes' base offense level was 30, based on the 37.3 grams of crack cocaine, then enhanced under USSG Sec. 4B1.1(b), Career Offender, to 34, then reduced by 3 levels for acceptance of responsibility, for an offense level of 31. The imprisonment range for Offense Level 31, Criminal History Category VI is 188 to 235 months imprisonment; the supervised release range is 4 to 5 years.
Defendant Barnes filed a Sec. 2255 Petition (Dkt. 31), which the Court denied (Dkt. 34).
Defendant Barnes moved for reduction of sentence under Amendment 750 (Dkt. 36), which the Court denied (Dkt. 47). Defendant Barnes appealed the decision; the Eleventh Circuit Court of Appeal affirmed (Dkts. 53, 54).
U.S. Probation filed an Amendment 782 Memorandum (Dkt. 58). Defendant Barnes moved for a reduction of sentence under Amendment 782 (Dkt. 60). The Federal Defender's Office notified Defendant Barnes that it would not pursue relief under Amendment 782 (Dkt. 62). After the Government's response, the Court denied Defendant Barnes' Motion (Dkt. 67).
Defendant Barnes again filed a Sec. 2255 Petition (Dkt. 73), which the Court denied (Dkt. 77). The Eleventh Circuit Court of Appeal denied leave to file a successive Sec. 2255 Petition. (Dkt. 78). II. Defendant's Motion for Sentence Reduction
Defendant Barnes argues that, based on the 18 grams or more of cocaine base for which Defendant was accountable in the Plea Agreement, Defendant Barnes' offense now falls under 21 U.S.C. Sec. 841(b)(1)(C); the statutory range of imprisonment is now up to 20 years, and the minimum term of supervised release is 3 years.
Congress enacted the Fair Sentencing Act of 2010, 124 Stat. 1232, to reduce the disparate statutory penalties for crack cocaine offenses. The Fair Sentencing Act increased the drug amounts triggering the mandatory minimum for crack trafficking offenses from 5 grams to 28 grams as to the 5-year minimum, and from 50 grams to 280 grams as to the 10-year minimum. The Fair Sentencing Act of 2010 took effect on August 3, 2010. Sec. 404(b) of the First Step Act of 2018 provides that the court may "impose a reduced sentence as if sections 2 and 3 of the Fair Sentence Act of 2010, 124 Stat.2372, were in effect at the time the covered offense was committed."
The First Step Act also changed the definition of prior convictions that can subject a defendant to an increase in the guideline range, and changed the low end of a range that is increased based on one or more prior convictions.
Defendant Barnes requests that the Court reduce his previously imposed sentence to time-served, and reduce his term of supervised release to 36 months.
The Government does not oppose Defendant Barnes Motion for Sentence Reduction.
After consideration, the Court grants Defendant Alvin Barnes' Unopposed Motion for Sentence Reduction. Accordingly, it is
ORDERED that Defendant Alvin Barnes' Unopposed Motion for Sentence Reduction Under the First Step Act of 2018 (Dkt. 86) is granted. Pursuant to the 18 U.S.C. Sec. 3582(c)((1)(B) and the First Step Act, Defendant Barnes' term of imprisonment is reduced from 188 months to time served; Defendant Barnes' term of supervised release is reduced from 48 months to 36 months. All other provisions of the previous judgment (Dkt. 27) remain in effect and are incorporated herein.
DONE and ORDERED in Chambers in Tampa, Florida on this 18th day of July, 2019.
/s/_________
ELIZABETH A. KOVACHEVICH
United States District Judge Copies to: All parties and counsel of record
U.S. Probation
Bureau of Prisons