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 sought a plenary resentencing
hearing. The Court denied the Defendant's request for a
plenary resentencing hearing; gave the Defendant an
opportunity to submit a sentencing memorandum and evidence;
and set a deadline for the Government's response. The
Defendant submitted a sentencing memorandum, ECF No. 121,
seeking a sentence at the low end of the newly calculated
guideline range, and submitted evidence of the
Defendant's participation in educational, vocational, and
other rehabilitative programs during his incarceration. ECF
No. 123. The Government submitted a brief in opposition to
the Defendant's request for a retroactive sentence
reduction under the First Step Act. ECF. No. 125.
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, consolidated and to
be served concurrently, 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.
Pursuant to these Acts, the statutory mandatory minimum term
of incarceration that applied to Count I of Nance's
Indictment in 2009 is no longer applicable, and his new range
of imprisonment under the U.S. Sentencing Guidelines is 63 to
Nance has served his term of incarceration in this case, he
remains incarcerated with the Bureau of Prisons (BOP) due to
another consecutive federal sentence resulting from a crime
committed during his incarceration. If Nance receives a
retroactive reduction of his sentence in this case under the
First Step Act, his release date will be accelerated, because
the BOP considers such consecutive sentences to be
aggregated. See Second Amended 2019 First Step Act
Retroactive Sentencing Worksheet, ECF No. 114.
counsel refers the Court to Nance's completion of his GED
and participation in several educational, vocational, and
rehabilitative programs during his incarceration. ECF No.
123-1. Defense counsel argues that Nance's prison
misconduct should not be considered, because he
suffered commensurate consequences through loss of good time
and a new sentence. Id. Defense counsel requests a
retroactive sentence at the low end of the new guideline
Government argues Nance is not eligible for a reduction of
sentence under the First Step Act, because this sentence has
been served. In the alternative, the Government argues that
this Court should decline to exercise any discretion to
reduce Nance's sentence under the First Step Act because
Nance's conduct in prison demonstrates he is a danger to
support of the theory that Nance is ineligible for a reduced
sentence under the First Step Act, the Government cites to
United States v. Martin, 03-cr-795 (BMC), 2019 WL
2289850 (E.D.N.Y. May 29, 2019). In Martin, the
judge issued an order reducing the defendant's sentence
under Section 404 of the First Step Act to “time
served, ” and later learned the defendant completed his
sentence and was serving a consecutive federal sentence for
crimes committed while incarcerated. Id. at *1-2.
The judge vacated his order, concluding the matter was moot.
Id. at 2. The judge acknowledged that “a
criminal case does not necessarily become moot when the
convict finishes serving the sentence when there exists some
concrete and continuing injury.” Id. (quoting
United States v. Aldeen, 792 F.3d 247, 251 (2d Cir.
2015)). The judge also acknowledged that nothing in the First
Step Act prevents a judge from reducing a sentence to a term
less than time served, and that other district court judges
in the Second Circuit have concluded the First Step Act
“does permit a sentencing court to retroactively reduce
an already-served sentence where the defendant remains in
federal custody on a sentence for an unrelated
offense.” Id. at 5. The judge in
Martin explained why he thought such an approach was
unwise as a matter of policy; and noted that if he had
discretion to reduce the defendant's already-served
sentence retroactively he would not do so. Finally, the judge
acknowledged that other district judges considered 18 U.S.C.
§ 3553(a) factors when deciding to grant relief under
the First Step Act, but he concluded such factors, including
a defendant's subsequent behavior, should not be
this Court does not consider Nance's Motion under the
First Step Act to be moot. In the context of habeas
proceedings, the Supreme Court has recognized that evidence
of “some concrete and continuing injury” suffered
by a convict whose sentence has expired will demonstrate a
collateral consequence of the conviction and prevent the
habeas proceeding from being moot. Spencer v. Kemna,
523 U.S. 1, 7-8 (1993). That reasoning is equally applicable
here. Nance has demonstrated that he suffers a
“collateral consequence” of the term of
incarceration imposed by this Court, i.e., his
continued incarceration on a consecutive sentence. No. one
disputes that a retroactive reduction of Nance's term of
incarceration in this case will offer Nance an earlier
release date, due to BOP's policy of
“aggregating” consecutive federal sentences.
it has been the practice in this district to consider a
defendant's post-incarceration conduct when exercising
discretion to reduce a defendant's term of incarceration
due to retroactive changes in statutes or sentencing
guidelines. Nothing in the First Step Act prohibits such a
practice, and it is consistent with the holdings and dicta in
Pepper v. United States, 131 S.Ct. 1229, 1236 (2011)
(“district court at resentencing may consider evidence
of the defendant's postsentencing rehabilitation”).
Nance committed the crime that led to his conviction in this
case he was 23 years old. His criminal history, which placed
him in Criminal History Category III, was serious and
lengthy, but he did not have convictions for crimes of
violence. During his term of incarceration, he has forfeited
over 300 days of good time for offenses which include at
least one act of violence (assaulting a cell-mate) and he was
sentenced to a consecutive term of 108 months for assaulting
a correctional officer. ECF No. 114.
Court shares the Government's concern for the danger
Nance may pose to public safety. Yet the Court is also
mindful of the congressional intent underlying the Fair
Sentencing Act and Section 404 of the First Step Act.
Considering all the information in the record, and the
parties' respective arguments, the Court concludes that
Nance's sentence on Counts I, II, and III of the
Indictment, consolidated, should be reduced to a term of 78
months. All the other terms and ...