United States District Court, M.D. Pennsylvania
Malachy E. Mannion United States District Judge
before the court are the defendant’s motions to reduce
his 240-month sentence to time served pursuant to §404
the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194 (“FSA”). (Docs. 464 & 471). Alternatively,
defendant seeks a resentencing hearing pursuant of the FSA.
The government opposes the motions arguing that the defendant
is not eligible for relief since the FSA did not change the
statutory penalties applicable under §841(b)(1)(C). Upon
the court’s review of the record in this case and the
parties’ briefs, the defendant’s motions will be
9, 2003, the DEA arrested Leo Smith, III, a/k/a
“Killah” (the “defendant”), in
Wilkes-Barre, Pennsylvania via a criminal complaint charging
him with distribution and possession with intent to
distribute cocaine base (“crack”) in violation of
21 U.S.C. §841(a)(1). A nine-count Indictment
was returned on May 13, 2003 against the defendant and
various others charging him with conspiracy to distribute and
possess with intent to distribute in excess of 50 grams of
cocaine base (“crack”) in violation of 21
U.S.C. §846. In Count 9 of the Indictment, the
defendant was charged with possession of firearms, including
handguns and an assault rifle, during and in relation to drug
trafficking felonies in violation of 18 U.S.C.
January 28, 2004, the defendant pleaded guilty to conspiracy
under Count 1 of the Indictment. Under the terms of a plea
agreement with the defendant, Count 1 was amended to reflect
no specific quantity of cocaine base. Consequently, the
defendant was exposed to a 20-year maximum imprisonment term
and no mandatory minimum term. Also, the plea agreement
provided for the dismissal of the firearms violation
contained in Count 9 of the Indictment which could have
resulted in a mandatory minimum term of imprisonment of at
least five years to run consecutive to the sentence for the
defendant was sentenced to 240 months in prison on October
22, 2004. He filed an appeal regarding his sentence.
On December 5, 2005, the defendant’s case was remanded
to the district court for re-sentencing based upon United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
The defendant was re-sentenced to 240 months in prison on
June 29, 2006. The defendant then filed an appeal on July 7,
2006. The Third Circuit affirmed the defendant’s
240-month prison sentence. United States v. Smith,
250 Fed.Appx. 522 (3d Cir. 2007). On April 28, 2008, the
United States Supreme Court denied certiorari.
Smith v. United States, 553 U.S. 1027 (2008).
11, 2010, the defendant filed a motion under 18
U.S.C.§3582(c)(2) to reduce his sentence pursuant to
Amendment 706 to the Sentencing Guidelines. On June 28, 2010,
the motion was denied. U.S. v. Smith, 2010 WL
11432598 (M.D.Pa. June 28, 2010). The defendant appealed and
the Third Circuit affirmed the district court’s order
stating that it was permissible for the district court to
consider the defendant’s possession of weapons as a
factor to deny the motion, even though his advisory
guidelines sentence was increased by two offense levels as a
result of his possession of weapons. U.S. v. Smith,
419 F.App'x 241 (3d Cir. 2011). On October 3, 2011, the
Supreme Court denied certiorari. Smith v. United
States, 132 S.Ct. 218 (2011).
April 17, 2012, the defendant filed another motion to reduce
his sentence pursuant to 18 U.S.C. §3582(c)(2) based on
amendments to the Guidelines enacted after the Fair
Sentencing Act. On September 4, 2012, the court denied the
motion. The defendant filed an appeal on September 17, 2012,
and the Third Circuit affirmed the district court’s
order. United States v. Smith, 539 F.App'x 54 (3d
November 20, 2015, the defendant filed a motion to reduce
sentence, (Doc. 411), based on Amendment 782 to the
Guidelines. On July 15, 2016, the court denied
defendant’s motion. (Doc. 425). The defendant filed an
untimely notice of appeal on April 27, 2018, (Doc. 458), and
the Third Circuit denied his appeal on February 12, 2019.
25, 2019, the defendant filed a pro se motion under
the FSA. (Doc. 462). The Federal Public Defender was
appointed to represent the defendant and, a motion under the
FSA and brief in support were filed on his behalf on August
14, 2019. (Docs. 464 & 465). The FPD then filed an
unopposed motion to withdraw from the case on August 22,
2019. (Doc. 466). On August 27, 2019, the government filed
its brief in opposition to defendant’s
motion. (Doc. 467). Subsequently, the court
granted the FPD’s motion to withdraw from the case,
(Doc. 468), and allowed the defendant to proceed pro
se. (Doc. 470). On September 16, 2019, defendant filed a
pro se amended motion to reduce his sentence to time
served under the FSA. (Doc. 471).
government contends that defendant Smith is ineligible for
relief under the FSA since he pleaded guilty to distributing
an unspecified amount of crack cocaine and he was sentenced
under the statutory penalties for 21 U.S.C.
§841(b)(1)(C) which were not modified by the FSA. The
court concurs and finds that Smith is not entitled to the
relief that he seeks.
United States v. Davis, 2019 WL 1054554, *1
(W.D.N.Y. March 6, 2019), the court addressed the FSA and
Section 404 of the First Step Act makes retroactive Sections
2 and 3 of the Fair Sentencing Act of 2010 (“the Fair
Sentencing Act”), Pub. L. 111-220, 124 Stat. 2372, 2372
(2010). Section 2 of the Fair Sentencing Act “increased
the drug amounts triggering mandatory minimums for crack
trafficking offenses from 5 grams to 28 grams in respect to
the 5-year minimum and from 50 grams to 280 grams in respect
to the 10-year minimum.” Dorsey v. United
States, 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d
250 (2012). ...