Submitted: September 27, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
KELLY, MELLOY, and STRAS, Circuit Judges.
Jerome McDonald appeals from the district court's denial
of his motion for a sentence reduction under the First Step
Act of 2018. Because the district court erred by finding
McDonald ineligible for relief, we reverse and remand.
February 3, 1999, a jury convicted McDonald on four counts of
a superseding indictment, including Count 39 for distributing
two ounces of cocaine base in violation of 21 U.S.C. §
841. He received a sentence of life imprisonment for Count
39, which we affirmed on appeal. United States v.
Nicholson, 231 F.3d 445, 453 (8th Cir. 2000).
later filed a series of motions to reduce his sentence. In
May 2015, he moved for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), based on Amendment 782 to the United
States Sentencing Guidelines. See USSG supp. app. C.
amend. 782 (2014). The government acknowledged that, under
this amendment, McDonald's base offense level on Count 39
would decrease from 38 to 36, resulting in a Guidelines range
of 360 months to life. In April 2016, the district court
granted McDonald's motion and reduced his sentence to 360
months in prison.
January 11, 2019, McDonald filed a pro se motion for a
reduced sentence under the newly enacted First Step Act,
which made retroactive the lower penalties for cocaine base
offenses established by the Fair Sentencing Act. The district
court denied the motion without a hearing, finding McDonald
ineligible for relief because his sentence was based on 150
kilograms of powder cocaine rather than cocaine base.
appeals. He argues he is eligible for a reduced sentence
under the First Step Act because his conviction on Count 39
was for distributing cocaine base, not powder cocaine. The
government contends the district court did not abuse its
discretion by denying McDonald's motion because he had
already received a reduced sentence in 2016, and that
sentence is within the statutory limits set by the Fair
review de novo the applicability of the First Step Act to a
defendant's case, including whether a defendant is
eligible for a sentence reduction. Cf. United States v.
Gamble, 683 F.3d 932, 933 (8th Cir. 2012) (reviewing
"de novo the applicability of the [Fair Sentencing Act]
to a defendant's case"). We review for an abuse of
discretion the district court's decision to grant or deny
an authorized sentence reduction. See First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222 §
404(c) ("Nothing in this section shall be construed to
require a court to reduce any sentence pursuant to this
enacted the Fair Sentencing Act in 2010, which reduced the
sentencing disparity between cocaine base and powder cocaine
from 100-to-1 to 18-to-1. Dorsey v. United States,
567 U.S. 260, 269 (2012); see Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the
Fair Sentencing Act increased the quantity of cocaine base
required to trigger mandatory minimum sentences. It raised
the threshold for the 5-year minimum from 5 grams to 28
grams, and raised the threshold for the 10-year minimum from
50 grams to 280 grams. Dorsey, 567 U.S. at 269.
Section 3 eliminated the 5-year mandatory minimum for simple
possession of cocaine base. Id. These changes did
not apply to defendants sentenced before August 3, 2010.
Id. at 263.
2018, Congress enacted the First Step Act, which makes
certain provisions of the Fair Sentencing Act retroactive. As
relevant here, section 404(b) of the First Step Act allows a
district court to "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." First Step Act § 404(b). A
"covered offense" is defined as "a violation
of a Federal criminal statute, the statutory penalties for
which were modified ...