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United States v. Moore

United States District Court, D. Nebraska

October 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAKTINE ALPHONSO MOORE, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Pending before me is a motion to reduce the mandatory life sentence[1] I imposed on Mr. Moore. I now grant the motion in part and reduce his prison sentence to 360 months.

         The very experienced supervising probation officer has filed a 2019 First Step Act Retroactive Sentencing Worksheet finding Mr. Moore is eligible for a sentence reduction under § 404(b) of the First Step Act, that a life sentence is no longer mandatory, [2] and that I should reduce the sentence from life to 360 months, which is at the bottom of the now-applicable Guidelines range. Filing no. 389. Because Mr. Moore has been convicted of at least one serious drug felony, his mandatory minimum sentence is 10 years. 21 U.S.C. § 841(b)(1)(B)(iii).

         The government objected and filed a brief. The defendant responded with a brief opposing the government, while also insisting upon a full (plenary) resentencing with all the bells and whistles.

         I could write a long opinion, but that is unnecessary. Essentially, I agree with Judge Gerrard's approach. United States v. Jonair Tyrece Moore, No. 4:09-CR-3092, 2019 WL 3966168 (D. Neb. Aug. 22, 2019) (finding the defendant eligible for relief under the First Step Act, but in the exercise of discretion denying relief, thus leaving the prison sentence at 235 months). I summarize Judge Gerrard's thoughtful decision as follows:

(1) under § 404(b) of First Step Act, one looks to the drug quantity alleged in the indictment to determine eligibility;
(2) the First Step Act does not require a “plenary resentencing” to the extent that the court may revisit all issues considered by the sentencing judge-the focus is only the changed statutory range as derived from the indictment (and, presumably, the Guideline range impacted by application of the First Step Act through application of the Fair Sentencing Act);
(3) when a judge grants relief, the judge is not “resentencing” the defendant-rather, the judge is essentially reducing the sentence similar to a sentence reduction under Federal Rule of Criminal Procedure 35 and, thus, the defendant need not be present and no hearing need be held;
(4) while the drug quantity found by the sentencing judge does not determine eligibility, the amount of drugs found by the sentencing judge is “highly relevant” when determining the extent of any reduction; and
(5) under the First Step Act, the judge has “unfettered discretion.”

         I should add this: Even if my summary of Judge Gerrard's opinion is inaccurate, that would not matter. The foregoing is what I independently conclude without chopping down a forest of trees to further elucidate my reasoning.

         With the foregoing in mind, I now turn to the probation officer's sound analysis. First, he calculated the Guidelines.

         The officer started with a base offense level of 36, which was bumped up by two points for obstruction of justice. Thus, the total offense level was 38. Note that Mr. Moore is a career offender. But even if he was not, Mr. Moore's 19 criminal history points placed him in criminal history category VI anyway.[3] The probation officer ultimately and accurately determined that Mr. Moore has a total offense ...


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