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United States v. Moore

United States District Court, D. Nebraska

August 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JONAIR TYREECE MOORE, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard, Chief United States District Judge

         This 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.

         As 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.

         FACTUAL BACKGROUND

         Moore 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.[1] 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. Filing 75.

         The 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).

         In 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.

         When 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.

         STATUTORY BACKGROUND

         As 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. § 841(b)(1)(B)(iii).

         The 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."

         DISCUSSION

         The 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) ...


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