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 Motion to
Reduce Sentence Under Section 404 of the First Step Act, ECF
No. 349. For the reasons described below, the Motion will be
28, 2007, the Defendant James A. Howard entered into a plea
agreement, ECF No. 112, agreeing to enter a plea of guilty to
Counts I, III, IV, and VI of the Indictment. Count I charged
him with conspiracy to distribute 50 grams or more of a
mixture or substance containing cocaine base; Count III
charged him with use of a firearm in connection with the drug
offense; and Counts IV and VI were forfeiture counts. See
Indictment, ECF No. 1. In the plea agreement, the parties
agreed “that the Defendant should be held responsible
beyond a reasonable doubt for more than 1.5 kilograms of a
mixture of substance containing a detectable amount of
cocaine base (i.e. ‘crack cocaine')”. ECF No.
112 at Page ID 582.
Defendant's plea hearing on July 9, 2007, Magistrate
Judge Thomas Thalken had a lengthy discussion with the
Defendant and his counsel regarding the drug quantity
stipulated in the plea agreement. Transcript of Plea Hearing,
ECF No. 132, 29:6-10; 31:5-7; 34:14 to 35-19; 36:25 to 41:11.
The Defendant confirmed his understanding that, with respect
to Count I, he was accepting responsibility for at least 1.5
kilograms of a mixture of substance containing a detectable
amount of cocaine base, resulting in a base offense level of
38. Id. at 40:24 to 41:11.
Amended Presentence Investigation Report, ECF No. 178,
reflected the Defendant's responsibility for more than
1.5 kilograms of cocaine base, resulting in a base offense
level of 38 for Count I. Id. at Page ID 861. At
sentencing on November 26, 2007, the Court granted the
Defendant's objection to a four-level role enhancement.
The Court also granted the Defendant's motion for a
downward departure or variance based on alleged overstatement
of criminal history and reduced the Defendant's criminal
history category from II to I. Contrary to the
Defendant's assertion in his Brief, ECF No. 350, the
Court did not reject the stipulated
drug weight and reduce the weight to 500 grams of crack
cocaine. The Court accepted the plea agreement and adopted
the facts in the Amended Presentence Investigation Report,
except the with respect to matters noted above. The Court
specifically noted that the Defendant was responsible for
“at least 1.5 but less than 4.5 kilograms of crack
cocaine.” See Sentencing Transcript at ECF No. 342,
3:23 to 4:5. The Defendant's base offense level for Count
I was reduced from 38 to 36 not because of any change in drug
weight, but due to changes in the U.S. Sentencing Guidelines,
effective November 1, 2007. See Sentencing Recommendation,
ECF No. 179, dated November 19, 2007.
Defendant was sentenced to 135 months incarceration on Count
I and 60 months on Count III, to be served consecutively. See
Judgment at ECF No. 180. His sentence on Count I was reduced
on May 21, 2012, to a term of 121 months, and reduced again
to a term of 120 months, the statutory mandatory minimum
term, on October 13, 2015, pursuant to 18 U.S.C. §
3582(c)(2) and retroactive amendments to the U.S. Sentencing
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. The 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.
Defendant argues that because he was held responsible for
only 500 grams of crack cocaine (a false assertion) and that
amount is “just a fraction over” the 280-gram
threshold triggering the 10-year statutory mandatory minimum
term in 18 U.S.C. § 841(b)(1)(A) following the Fair
Sentencing Act, his trial strategy would have been altered if
the Fair Sentencing Act had been in place in 2007. He
contends that he should be held responsible only for the
quantity of drug alleged in Count I of the Indictment-50
grams of cocaine base-and not for a “judge-found”
drug quantity used to determine a statutory penalty. He seeks
a plenary resentencing under the First Step Act, applying the
drug quantity set out in Count I of the Indictment.
Defendant's arguments fail for several reasons. First,
the drug quantity (at least 1.5 kilograms of cocaine base)
was not a judge-found fact. It was a fact to which the
Defendant stipulated pursuant to his plea negotiations and
for which the Defendant received substantial benefit in
return, including dismissal of Counts II and V of the
Indictment and avoidance of a potential sentence of life
imprisonment. See Transcript of Plea Hearing, ECF No. 132,
37:25 to 38:22. Second, it is reasonable to infer that if the
Fair Sentencing Act had been in effect in 2007 the government
would have charged the Defendant in accordance with the
language of the new law, i.e., conspiracy to
distribute 280 grams or more of a mixture or substance
containing cocaine base. The government cannot be faulted for
using the statutory language in existence at the time of the
Indictment. Third, even if the Defendant were eligible for a
reduction in his sentence under the First Step Act, no
plenary resentencing hearing would be
warranted. Finally, even if the Defendant were
eligible for relief under the First Step Act, this is not a
case in which the Court would exercise its discretion to
grant such relief.
reasons stated above the Court concludes that the First Step
Act provides the Defendant no relief, because his sentence on
Count I of the Indictment continues to be governed by the
statutory mandatory minimum term required under 21 U.S.C.
Defendant's Motion to Reduce Sentence Under Section 404
of the First Step Act, ECF No. 349, is denied.