United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge.
Brandon Wright (“Wright”) moves the court for a
sentence reduction under Section 404 of the First Step Act of
2018, § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222.
Wright contends that he is eligible for relief under the
First Step Act and asks the court to order his immediate
release from imprisonment. The government maintains that
Wright is neither eligible nor an appropriate candidate for a
First Step Act sentence reduction.
Factual Background and Procedural History
federal grand jury returned an indictment on March 29, 2006,
charging Wright and others with various conspiracy and
drug-trafficking offenses. (Doc. 1). The grand jury returned
a superseding indictment on September 28, 2006, adding
several new charges against Wright. (See Doc. 194).
Three days before trial was set to begin, the government
filed a felony information under 21 U.S.C. § 851(a)(1),
subjecting Wright to an enhanced statutory minimum and
maximum penalty as a result of a prior felony
drug-trafficking conviction. (Doc. 245).
began with jury selection on December 4, 2006. Shortly after
the jury was empaneled, Wright entered a guilty plea to two
counts of the superseding indictment. (See Doc.
252). Those two counts charged Wright with conspiring to
distribute and possess with intent to distribute 50 grams and
more of a mixture or substance containing cocaine base, or
“crack cocaine, ” in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(iii), and 846 (Count I),
and criminal forfeiture under 21 U.S.C. § 853(p) (Count
V). (Doc. 194).
presentence report calculated a drug weight of 6.35 kilograms
of cocaine base. (PSR ¶ 21). Wright initially objected
to the report's drug-weight calculation but withdrew the
objection based on the parties' agreement at sentencing
that the drug weight “is in excess of 1.5 kilograms of
crack cocaine.” (Doc. 379 at 3:7-17). The court also
sustained a defense objection to application of a two-level
firearm enhancement. (Id. at 3:18-4:3). The findings
and Guidelines calculations of the presentence report, as
modified by the court's rulings, established a range of
360 months' to life imprisonment. (Id. at
6:4-9). The court then departed by four levels, on the
government's motion, to establish an advisory Guidelines
range of 262 to 327 months' imprisonment. (Id.
at 8:12-10:7). After considering the applicable Section
3553(a) factors, the court imposed a sentence of 262
months' imprisonment, five years of supervised release, a
fine of $1, 500, and community restitution of $1, 500. (Doc.
has since received two sentence reductions pursuant to 18
U.S.C. § 3582(c) based on retroactive application of
certain amendments to the Sentencing Guidelines.
Specifically, on July 10, 2008, the court reduced
Wright's sentence from 262 months to 236 months pursuant
to Amendment 706 to the Guidelines. (Doc. 343). On January
27, 2012, the court again reduced Wright's sentence, from
236 months to 213 months, pursuant to Amendment 750 to the
Guidelines. (Doc. 364). On May 6, 2015, the court denied
Wright's third Section 3582(c) motion, this time invoking
Amendment 782 to the Guidelines, finding that Wright was
resentenced as a career offender in 2012 and was thus
ineligible for an Amendment 782 reduction. (Doc. 375).
now moves the court for a sentence reduction pursuant to
Section 404 of the First Step Act. The motion is fully
briefed and ripe for disposition.
First Step Act of 2018 is a sweeping piece of reformative
criminal justice legislation. Relevant here, the First Step
Act authorizes federal district courts to impose a reduced
sentence for covered crack cocaine offenses where the
statutory penalties of the Fair Sentencing Act of 2010, Pub.
L. No. 111-220, 124 Stat. 2372, §§ 2-3, would have
applied had that Act been in effect when the covered offense
was committed. See First Step Act § 404(b), 132
Stat. at 5222. The First Step Act defines a “covered
offense” as “violation of a Federal criminal
statute, the statutory penalties for which were modified by
section 2 . . . of the Fair Sentencing Act . . ., that was
committed before August 3, 2010.” Id. §
404(a). Section 2 of the Fair Sentencing Act, in turn,
increased the quantity of crack cocaine required to trigger
mandatory minimum penalties under 21 U.S.C. §
841(b)(1)(A)(iii) from 50 to 280 grams and under 21 U.S.C.
§ 841(b)(1)(B)(iii) from 5 to 28 grams. See
Fair Sentencing Act § 2(a). The government disputes both
Wright's eligibility for and the propriety of a First
Step Act reduction in this case.
government contends that Wright is ineligible for a sentence
reduction because he admitted to distributing a quantity of
crack cocaine in excess of the new 280-gram threshold under
21 U.S.C. § 841(b)(1)(A)(iii). (See Doc. 405 at
5-6). The government acknowledges that the charging document
and plea agreement speak only to 50 grams and more of crack
cocaine. (See id. at 6). But it emphasizes that
Wright withdrew his objection to the presentence report's
drug-weight calculation and admitted in his sentencing
memorandum to responsibility for more than 1.5 kilograms of
crack cocaine. (Id. at 5-6). This, the government
posits, would support a sentence under Section
841(b)(1)(A)(iii) even with its new 280-gram threshold, so
“the penalties applicable to his crime both before and
after passage of the Fair Sentencing Act are
identical.” (Id. at 5).
disagree. Several courts have concluded that the First Step
Act “applies to offenses and not conduct.”
United States v. Dodd, 372 F.Supp.3d 795, 797 (S.D.
Iowa 2019) (citing United States v. Davis, No.
07-CR-245S, 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019));
see United States v. Thompson, No. 1:05CR42, 2019 WL
4040403, at *4-7 (W.D. Pa. Aug. 27, 2019) (collecting cases);
United States v. Rose, 379 F.Supp.3d 223, 229-30
(S.D.N.Y. 2019) (same); United States v. Pierre, 372
F.Supp.3d 17, 22 (D.R.I. 2019) (same). We join those courts
to have concluded that eligibility under the First Step Act
is defined by the statute of conviction, not the actual
conduct supporting a conviction under that statute. This
reading comports with the Act's definition of a
“covered offense” 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.” First Step Act § 404(a). To the extent the
government asserts that the Act's use of
“violation” suggests that we look to actual
offense conduct, the rule of lenity supports the construction
of the First Step Act that favors the defendant. See
Thompson, 2019 WL 4040403, at *6 (collecting cases);
Rose, 379 F.Supp.3d at 229 (same).
growing number of courts have also aptly noted that, if First
Step Act defendants were sentenced today, the Supreme
Court's decisions in Apprendi v. New Jersey, 530
U.S. 466 (2000), and Alleyne v. United States, 570
U.S. 99 (2013), would prohibit statutory sentence
enhancements based on drug-weight findings made by a judge at
sentencing. See Dodd, 372 F.Supp.3d at 797-98;
Thompson, 2019 WL 4040403, at *6 (collecting cases).
These courts hold-correctly, in our view-that the now-settled
constitutional parameters of Apprendi and
Alleyne should inform our analysis. See
Dodd, 372 F.Supp.3d at 797-98; Thompson, 2019
WL 4040403, at *6 (collecting cases). But see United
States v. Willis, No. 07-205, 2019 WL 4849435, at *13-14
(E.D. Pa. Sept. 30, 2019) (concluding that Alleyne
and Apprendi concern sentencing enhancements, not
reductions, and do not apply to First Step Act proceedings),
appeal filed, No. 19-3249 (3d Cir. Oct. 4, 2019). To
hold otherwise would subject a defendant whose drug ...