United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard, Chief United States District Judge
matter is before the Court on Jonair Moore's motion
(filing 204) for a sentence reduction pursuant to § 404
of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194 (2018), which gives retroactive effect to §§ 2
and 3 of the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (2010). The government opposes the
motion, asserting that Moore is not statutorily eligible for
a First Step Act reduction. See filing 206.
explained below, the Court disagrees with the government:
Moore is eligible for a reduction under the plain language of
the First Step Act. But the Court finds that a reduction is
unwarranted. Accordingly, the Court will deny Moore's
motion for a sentence reduction.
was indicted in 2009 and charged with conspiring, between
June 1, 2005 and March 31, 2007, to distribute and possess
with intent to distribute 50 grams or more of cocaine base,
i.e. "crack" cocaine. Filing 1. That
charge subjected him to a minimum sentence of 10 years
imprisonment and a maximum sentence of life imprisonment.
See21 U.S.C. § 841(b)(1)(A)(iii) (2006 &
Supp. III 2009). He was convicted pursuant to jury verdict.
Court found that Moore was responsible for 11.1 kg of cocaine
and 1.2 kg of crack cocaine. Filing 146 at 60. Accordingly,
the Court found a base offense level of 34 and (after two
enhancements that are not relevant to the present motion) a
total offense level of 38. Combined with a criminal history
category III, the Court found the Guidelines range to be 292
to 365 months' imprisonment. Filing 133 at 1; filing 146
at 61-62. The Court sentenced Moore to 292 months'
imprisonment. Filing 132 at 1; filing 146 at 70. The Eighth
Circuit affirmed. United States v. Moore, 639 F.3d
443 (8th Cir. 2011).
2012, Moore moved for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10, and
U.S.S.G. app. C, amend. 750. See app. C, amend. 750,
cmt. reason for amendment. But the Court denied his motion,
finding that based on the drug quantities attributable to
Moore, his Guidelines range had not changed. Filing 169.
Moore had more success, however, with U.S.S.G. app C., amend.
782, which reduced his total offense level to 36 and his
Guidelines range to 235-293 months' imprisonment. Filing
193. The Court reduced Moore's sentence to 235
months' imprisonment. Filing 197.
the First Step Act was passed, the Court identified
Moore's case as potentially implicated, and appointed
counsel to represent him with respect to First Step Act
relief. Filing 200; filing 201. This motion followed.
noted above, at the time of Moore's offense and
sentencing, § 841(b)(1)(A)(iii) required a term of
imprisonment from 10 years to life for an offense involving
more than 50 grams of crack cocaine. The statutory provisions
changed in 2010 with §§ 2 and 3 of the Fair
Sentencing Act, pursuant to which § 841(b)(1)(A)(iii)
now requires that a defendant be found responsible for 280
grams of cocaine base to be subject to a mandatory minimum
sentence of 10 years or maximum of life imprisonment. A
defendant responsible for only 50 grams of cocaine base-or
any amount between 28 and 280 grams-is now subject to a
sentence of 5 to 40 years' imprisonment. §
Fair Sentencing Act did not apply retroactively to defendants
who had been sentenced before its effective date. United
States v. Reeves, 717 F.3d 647, 651 (8th Cir. 2013). But
that changed with the First Step Act, § 404(b) of which
provides that for a "covered offense," the
sentencing court "may . . . impose a reduced sentence as
if sections 2 and 3 of the Fair Sentencing Act of 2010 were
in effect at the time the covered offense was
committed." (Citation omitted.) A "covered
offense" is defined 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." § 404(a)
(citation omitted). And a sentence reduction under the First
Step Act is completely discretionary, even for an eligible
defendant: § 404(c) provides that "[n]othing in
this section shall be construed to require a court to reduce
any sentence pursuant to this section."
parties disagree about whether Moore deserves a sentence
reduction under the First Step Act-but more importantly, they
disagree about whether Moore is even eligible for a First
Step Act reduction in the first place. The government argues
he is not, because according to the government, Moore did not
commit a "covered offense" within the meaning of
§ 404(a). And, the government argues, Moore is not
entitled to a sentence reduction under § 404(b)