United States District Court, D. Minnesota
H. MacDonald, United States Attorney, and Michael L. Cheever,
Assistant United States Attorney, for plaintiff.
Derrick Jerome Spencer, pro se defendant.
ORDER DENYING DEFENDANT'S MOTION FOR REDUCED
R. TUNHEIM CHIEF JUDGE
September 2007, a jury found Defendant Derrick Jerome Spencer
guilty of three drug offenses: Count 1 - conspiracy to
distribute 5 kilograms or more of powder cocaine and 50 grams
or more of crack cocaine in violation of 21 U.S.C.
§§ 841 (a)(1) and (b)(1)(A) and 846; Count 2 -
distribution of 9 ounces of powder cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C); and Count 3 -
distribution of 13.5 ounces of powder cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Indictment
at 1-2, May 21, 2007, Docket No. 1 (on file with Court); Jury
Verdict, Sept. 18, 2007, Docket No. 145.)
to the trial, the United States gave notice of its intention
to seek a sentencing enhancement based on Spencer's prior
drug conviction, which-if applicable-would result in a
mandatory minimum of 20 years' imprisonment on Count 1.
(Sentencing Enhancement Information at 1, Aug. 31, 2007,
Docket No. 98; Am. Sentencing Enhancement Information at 1,
Sept. 5, 2007, Docket No. 115.) At sentencing, the Court
concluded that the jury made the requisite finding to apply
the enhanced 20-year mandatory minimum. (Sentencing Tr. at
20, Mar. 9, 2009, Docket No. 323.) The Court granted
Spencer's motion for a downward departure based on his
criminal history being overstated and determined
Spencer's sentencing guideline range to be 292 to 365
months. (Id. at 21-22.) The Court sentenced Spencer
to 292 months' imprisonment on Count 1. (Id. at
23-24.) It sentenced Spencer to 240 months' imprisonment
on Counts 2 and 3. (Id.) The Court sentenced Spencer
to 10 years of supervised release on all three counts.
(Id. at 24.) All three sentences were to be served
appealed his conviction and sentence, but the Eighth Circuit
affirmed. United States v. Spencer, 592 F.3d 866,
882 (8th Cir. 2010). Spencer later moved for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
based on guideline amendments for crack and powder cocaine
sentences that were made retroactive. (Mot. to Reduce
Sentence, Dec. 4, 2015, Docket No. 432.) The Court granted
the motion and reduced Spencer's 292-month sentence to
262 months. (Order, Mar. 17, 2016, Docket No. 441.)
now brings a Motion to Reduce Sentence pursuant to the Fair
Sentencing Act of 2010 and the First Step Act of 2018
(“First Step Act Motion”). (First Step Act Mot.,
May 2, 2019, Docket No. 444.) Because Spencer's offenses
are not covered by the First Step Act, he is not eligible for
a reduction in sentencing, and the Court will deny his First
Step Act Motion.
has also moved to file a motion to reduce his sentence,
(Mot., May 10, 2019, Docket No. 452), and for an immediate
ruling on his First Step Act Motion, (Mot., May 14, 2019,
Docket No. 453). The Court will deny these motions as moot.
STANDARD OF REVIEW
18 U.S.C. § 3582(c), a “court may not modify a
term of imprisonment once it has been imposed, ” with
some exceptions. One such exception is when a sentence
modification is “expressly permitted by statute.”
18 U.S.C. § 3582(c)(1)(B).
Spencer was sentenced, Congress enacted the Fair Sentencing
Act of 2010, which increased the amount of crack cocaine
needed to trigger certain statutory mandatory minimums.
See Fair Sentencing Act of 2010, PL 111-220, Aug. 3,
2010, 124 Stat. 2372. A 10-year mandatory minimum sentence
for offenses involving crack cocaine is now triggered by 280
grams, not 50 grams. See Id. (amending 21 U.S.C.
§ 841(b)(1)(A)(iii)). A 5-year mandatory minimum
sentence for offenses involving crack cocaine is now
triggered by 28 grams, not 5 grams. See Id.
(amending 21 U.S.C. § 841(b)(1)(B)(iii)). The Fair
Sentencing Act also eliminated the statutory mandatory
minimum sentence for simple possession of crack cocaine.
See Id. (amending 21 U.S.C. § 844(a)). However,
the Fair Sentencing Act was not made retroactively applicable
to sentences imposed before its enactment.
2018, Congress enacted the First Step Act, which allows a
sentencing court to “impose a reduced sentence”
on a defendant who committed a “covered offense”
as if the Fair Sentencing Act “were in effect at the
time the covered offense was committed.” See
First Step Act of 2018, PL 115-391, December 21, 2018, 132
Stat 5194, 5222. A “covered offense” is defined
by the First Step Act as an offense (1) whose penalty was
modified by the Fair Sentencing Act and (2) that was
committed before passage of the Fair Sentencing Act.
First Step Act does not make a sentence reduction automatic;
rather, the defendant, the Director of the Bureau of Prisons,
an attorney for the United States, or the court itself must
move for such a reduction. Id. Furthermore, granting
a First Step Act motion is left to the discretion of the