United States District Court, D. Minnesota
S. DOTY, JUDGE
matter is before the court upon the motion by defendant
Dempsey Antonio Brown for a sentence reduction pursuant to
Section 404 of the First Step Act. Based upon a review of the
file, record, and proceedings herein, and for the following
reasons, the court grants the motion.
December 18, 2007, Brown pleaded guilty to possession with
intent to distribute more than five grams of a mixture or
substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
After determining that Brown qualified as a career offender
under U.S.S.G. § 4B1.1, the court sentenced Brown to a
term of imprisonment of 188 months, the bottom of the
applicable guideline range of 188 to 235 months, and four
years of supervised release. Given the guidelines
calculation, the sentence imposed was well above the
five-year mandatory minimum sentence required by 21 U.S.C.
§ 841(b)(1)(B) (2007).
Brown moved under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence due to ineffective assistance of
counsel. The court, determining that his counsel was
ineffective in failing to file a notice of appeal to
challenge his sentence, vacated his sentence. On
resentencing, the court again determined that Brown was a
career offender and reimposed a sentence of 188 months. The
Eighth Circuit Court of Appeals affirmed.
has since moved three times for a sentence reduction based on
amendments to the guidelines. Each time the court concluded
that Brown was not eligible for a reduction due to his
career-offender status. See ECF Nos. 76, 80, 84. In
2017, Brown moved again for relief under § 2255. The
court required Brown to request permission from the Eighth
Circuit to file a successive motion for relief under §
2255. ECF No. 88. The Eighth Circuit denied that request and
the court dismissed Brown's motion. ECF Nos. 90, 92.
Brown is currently scheduled to be released on April 20,
now moves for a reduction in sentence under the First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). He
did so initially pro se, but has since been appointed
counsel. The government opposes the motion.
2010, Congress enacted the Fair Sentencing Act, which reduced
the disparity between crack and powder cocaine in sentencing
by increasing the threshold amounts required to trigger
mandatory minimum sentences for crack cocaine offense. An
offense must now involve more than 280 grams of crack
cocaine, rather than the prior standard of more than 50
grams, to trigger a mandatory minimum sentence of ten years.
See 21 U.S.C. § 841(b)(1)(A)(iii). The Act also
increased the amount of crack cocaine needed to trigger a
five-year mandatory minimum sentence from 5 to 28 grams.
See 21 U.S.C. § 841(b)(1)(B)(iii). Offenses
involving less than 5 grams of crack cocaine no longer carry
a mandatory minimum sentence, and the maximum sentence for
such amounts is capped at twenty years. See 21
U.S.C. § 841(b)(1)(C). The Fair Sentencing Act became
effective as of August 3, 2010, but Congress failed to give
it retroactive effect. See United States v. Orr, 636
F.3d 944, 958 (8th Cir. 2011).
404 of the First Step Act makes the provisions of the Fair
Sentencing Act retroactive to defendants who were sentenced
before August 3, 2010, and gives the district court the
discretion to reduce a defendant's sentence as if the
Fair Sentencing Act was in effect at the time of the offense.
18 U.S.C. § 3582(c)(1)(B) provides a mechanism to
implement the retroactive changes permitted by the First Step
Act by authorizing sentencing reductions when
“expressly permitted by statute.” See United
States v. Shelton, No. 3:07-329, 2019 WL 1598921, at *3
(D.S.C. April 15, 2019) (collecting cases holding that §
3582(c)(1)(B) applies to the First Step Act).
order to be eligible for a sentence reduction under the First
Step Act, the offense of conviction must be a “covered
offense, ” which 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.”
First Step Act § 404(a). The government argues that
Brown was not convicted of a covered offense because he was
responsible for 89 grams of crack cocaine, which triggered a
five-year mandatory minimum sentence both before and after
the Fair Sentencing Act. See 21 U.S.C. §
841(B)(1)(B)(iii). Brown responds that the court should
consider only his offense of conviction -possession with
intent to distribute more than 5 grams of crack cocaine - in
determining his eligibility for relief. The court agrees with
including this one, have determined that eligibility under
the First Step Act is determined by looking at the statute of
conviction, not the defendant's conduct:
[I]n determining whether a defendant is eligible for relief
under § 404 of the First Step Act, the sentencing court
should look to whether the offense of conviction was modified
by the Fair Sentencing Act of 2010 to determine eligibility;
it should refrain from delving into the particulars of the
record to determine how this specific defendant committed his
or her offense of conviction, and how those facts would have
hypothetically affected the charges brought against the
defendant under the new statutory regime.
United States v. Pierre, No. 07-cr-003, 2019 WL
1495123, at *5 (D.R.I. Apr. 5, 2019); see also United
States v. Broussard, No. 02-cr-210(1), slip op. at 5-6
(D. Minn. Apr. 19, 2019) (finding defendant eligible for
relief under the First Step Act based on the offense of
conviction, not the amount of crack cocaine defendant was
held responsible for); United States v. Allen, No.
3:96-cr-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 209)
(“As a growing number of courts have concluded,
‘it is the statute of conviction, not actual conduct,
that controls eligibility under the First Step
Act.'”); United States v. Dodd, No.
3:03-cr-00018-3, 2019 WL 1529516, at *2 (S.D. Iowa Apr. 9,
2019) (“The First Step Act ... applies to the offenses
and not conduct.”); United States v. Davis,
No. 07-cr-245S(1), 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6,
2019) (applying a sentence reduction under the First Step Act
even though defendant was responsible for at least 1.5
kilograms of cocaine base because “it is the statute of
conviction, not actual conduct, that controls
eligibility” under the Act); United States v.
Laguerre, No. ...