Opinion
CASE NO. 2:12-CR-87-WKW [WO]
11-17-2020
UNITED STATES OF AMERICA v. ROBERT MARSHALL
ORDER
Before the court are Defendant Robert Marshall's pro se (1) motion for reduction of sentence under the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018) (Doc. # 862; see also Doc. # 875); (2) motion for appointment of counsel (Doc. # 857); and (3) motion to supplement (Doc. # 877). The motion to supplement will be granted; however, the motions for a sentence reduction and for appointment of counsel will be denied.
"A district court lacks the inherent authority to modify a term of imprisonment." United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020) (citation omitted). However, under 18 U.S.C. § 3582(c)(1)(B), a district court "may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . ." § 3582(c)(1)(B). The First Step Act expressly permits district courts "to reduce the sentences of crack-cocaine offenders in accordance with the amended penalties in the Fair Sentencing Act" of 2010. Jones, 962 F.3d at 1297 (citing Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010)).
Section 404 of the First Step Act of 2018 retroactively applies the Fair Sentencing Act of 2010's reduced statutory penalties for covered cocaine-base offenses. See First Step Act § 404. Section 404(a) defines 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 . . . , that was committed before August 3, 2010." First Step Act § 404(a). 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 (2012). Section 3 of the Fair Sentencing Act modified the penalties for simple possession of crack cocaine under 21 U.S.C. § 844(a). Section 404 of the First Step Act does not authorize a district court to modify sentences for offenses involving cocaine hydrochloride. First Step Act § 404(a); see also United States v. Pubien, 805 F. App'x 727, 730 (11th Cir. 2020) (explaining that sentences imposed for powder-cocaine convictions "were not modified by section 2 or 3 of the Fair Sentencing Act" and, thus, are not "covered offenses" under § 404(a) of the First Step Act).
Mr. Marshall was convicted by a jury for his involvement in a conspiracy to traffic more than 500 grams of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a) and 846. (Doc. # 528 (Jury Verdict).) His sentence was based on an offense and drug quantities involving only cocaine hydrochloride. (See, e.g., Doc. # 630, ¶ 28; Doc. # 760, at 40 (Sentencing Tr.).) Because he was not convicted of a covered offense, Mr. Marshall is not eligible for a sentence reduction under § 404(b) of the First Step Act.
Accordingly, it is ORDERED as follows:
(1) Mr. Marshall's motion to supplement (Doc. # 877) is GRANTED;
(2) Mr. Marshall's motion for reduction of sentence under the First Step Act of 2018 (Doc. # 862) is DENIED; and
(3) Mr. Marshall's motion for appointment of counsel (Doc. # 857) is DENIED.
DONE this 17th day of November, 2020.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE