United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge
matter is before the Court on the Defendant's Amended
Motion to Reduce Sentence Under Section 404 of the First Step
Act, ECF No. 116. The Defendant submitted a brief in support
of his Motion, ECF No. 117, and the Government has not
responded. In the pending Motion, the Defendant does not seek
any specific sentence reduction, but asks to be present at a
plenary re-sentencing hearing.
a jury trial, Defendant Jeremy Nance was found guilty of
Conspiracy to Distribute five grams or more of crack cocaine
(Count I), Possession with Intent to Deliver Crack Cocaine
(Count II), and Possession with Intent to Deliver Crack
Cocaine (Count III). At his sentencing hearing, on September
4, 2009, he was found responsible for at least 24.26 grams of
cocaine base. Due to his prior conviction for a felony drug
offense, and the government's notice under 21 U.S.C.
§ 851, his statutory mandatory minimum term was 120
months. Accordingly, he was sentenced to a term of 120 months
incarceration on Counts I, II, and III, to be served
concurrently, and to be followed by eight years of supervised
release on Count I and six years of supervised release on
Counts II and III, also to be served concurrently. He
appealed, and his conviction and sentence were affirmed on
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372 (2010), effective August 3, 2010, reduced the penalties
for certain crack cocaine offenses. The First Step Act, Pub.
L. No. 115-391, 132 Stat. 5194 (2018), at § 404, permits
but does not require sentencing judges to apply the Fair
Sentencing Act to sentences imposed prior to August 3, 2010.
Nance has served his term of incarceration on Counts I, II,
and III, he remains incarcerated with the Bureau of Prisons
due to another sentence which runs consecutive to his
sentence in this case. If Nance receives a reduction of his
sentence in this case under the First Step Act, his release
date will be accelerated. See Second Amended 2019 First Step
Act Retroactive Sentencing Worksheet, ECF No. 114.
Court agrees with Nance on the following points: He is
eligible for a reduction in his term of incarceration under
the First Step Act. The Court is no longer required to impose
a statutory mandatory minimum term of incarceration, and
Nance's new range of imprisonment under the U.S.
Sentencing Guidelines is 63 to 78 months. The Court is not
limited by the new Guideline range when determining whether
to reduce Nance's sentence, or the extent of any such
reduction, but may consider all factors listed in 18 U.S.C.
§ 3553(a). Any modification of Nance's term of
incarceration will be pursuant to 18 U.S.C. §
3582(c)(1)(B) which authorizes a court to “modify an
imposed term of imprisonment to the extent otherwise
expressly permitted by statute[.]”
Court does not agree with Nance's position that the First
Step Act mandates a plenary resentencing hearing. First, the
Act states that a court “may . . .impose a reduced
sentence” for an eligible defendant. It also states:
“Nothing in this section shall be construed to require
a court to reduce any sentence pursuant to this
section.” Second, Fed. R. Crim. P. 43(b) states:
“A defendant need not be present under any of the
following circumstances: . . . (4) The proceeding involves
the correction or reduction of a sentence under Rule 35 of 18
U.S.C. § 3582(c).” Section 3582(c) states:
“The court may not modify a term of imprisonment once
it has been imposed except that- (1) . . . (B) the court may
modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute[.]”
asserts that his resentencing is governed by §
3582(c)(1)(B), and this Court agrees. Yet, despite the clear
language of Rule 43(b), he contends he is entitled to a
plenary resentencing hearing, and to be present at such a
hearing, because the First Step Act uses the verb
“impose” rather than “modify” or
“reduce.” This Court draws no distinction between
the discretion to “impose a reduced sentence” and
the discretion to “reduce” a sentence. A
court's discretion to “modify” a sentence
could include the discretion to increase penalties,
but that is not contemplated or authorized by the First Step
Act. Accordingly, this Court finds nothing in the language of
the First Step Act- including its use of the verb
“impose”-that mandates a plenary resentencing
Defendant's brief, counsel refers to the Defendant's
earning of a GED and completion of a drug education program
as factors that should “compel a significant
reduction” in his sentence. ECF No. 117, Page ID 891.
Defendant's counsel argues that the Defendant's
misconduct while in prison should not be considered,
because he suffered consequences for that misconduct through
loss of good time and a new sentence for assault.
Id. The Retroactive Sentencing Worksheet, ECF No.
114, provides the Court with an overview of the
Defendant's post-conviction conduct-both positive and
negative-and the Court agrees that such information can be
considered when the Court exercises its discretion under
Section 404 of the First Step Act.
Defendant has not argued for any specific sentence reduction,
nor did he present any index of evidence, perhaps because he
anticipated a plenary re-sentencing hearing would be
scheduled. Although the Court will not schedule a plenary
re-sentencing hearing, it will give the Defendant the
opportunity to submit a sentencing memorandum and an index of
evidence. Government's counsel will be given an
opportunity to respond and submit an index of evidence, and
the Defendant will have an opportunity to reply.
Defendant Jeremy Nance may submit a sentencing memorandum and
any index of evidence in support of his Amended Motion to