United States District Court, D. Minnesota
Michael L. Cheever, Assistant United States Attorney, for
Perez, pro se defendant.
MEMORANDUM OPINION & ORDER DENYING
DEFENDANT'S MOTION FOR REDUCED SENTENCE
R. TUNHEIM UNITED STATES DISTRICT JUDGE
Robert Perez pleaded guilty to possession of methamphetamine
with intent to distribute in May 2018 and was sentenced in
November 2018. On August 5, 2019, Perez filed a motion to
reduce his sentence in accordance with Section 404 of the
First Step Act of 2018. Section 404 of the First Step Act
allows a court to reduce the sentence of a defendant
convicted before August 3, 2010 of certain crack cocaine
offenses. Since Perez was convicted in 2018 of a
methamphetamine offense, the Court will deny Perez's
motion for sentence reduction.
was apprehended in April 2018 with more than 500 grams of a
mixture and substance containing methamphetamine. (Plea
Agreement ¶ 2, June 1, 2018, Docket No. 20.) Perez
subsequently pleaded guilty to possession with intent to
distribute more than 500 grams of a mixture and substance
containing methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). (Id. ¶
1.) As part of his amended plea agreement, Perez agreed to a
recommended sentence of twenty years (240 months) in prison.
(Joint Position on Sentencing at 1, Oct. 26, 2018, Docket No.
30; Am. to Plea Agreement and Sentencing Stipulations ¶
8.5, Nov. 9, 2018, Docket No. 36.) On November 15, 2018,
Perez was sentenced to twenty years in prison followed by
five years of supervised release. (Sentencing J. at 2-3, Nov.
15, 2018, Docket No. 39.)
now moves for a reduction in sentence under Section 404 of
the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194
(2018) (“First Step Act”), which allows courts to
reduce sentences for certain offenses involving crack cocaine
committed before August 3, 2010. (Mot. to Reduce Sentence at
1, Aug. 5, 2019, Docket No. 41.) The government opposes the
motion because Perez's crime did not involve crack
cocaine and occurred in 2018. (Gov't's Mem. in
Opposition at 1, Aug. 7, 2019, Docket No. 43.)
SENTENCE REDUCTIONS UNDER § 404 OF THE FIRST STEP
general rule, a “court may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C.
§ 3582(c). One exception to this rule is when a sentence
modification is “expressly permitted by statute.”
18 U.S.C. § 3582(c)(1)(B). Section 404 of the First Step
Act expressly allows courts to reduce sentences imposed for
certain offenses. First Step Act §§ 404(a)-(b).
Courts may only reduce a sentence, however, if it fits within
Section 404's strict contours. See, e.g., United
States v. Brown, No. 02-101 (JRT), 2019 WL 4888675, at
*2 (D. Minn. Oct. 3, 2019); United States v.
Spencer, No. 07-174(1) (JRT/JJG), 2019 WL 3369794, at *2
(D. Minn. July 26, 2019).
404's contours are tied to a previous sentencing reform
measure, the Fair Sentencing Act of 2010. The Fair Sentencing
Act of 2010 “increased the amount of crack cocaine
needed to trigger certain statutory mandatory minimums”
for importation and distribution offenses and
“eliminated the statutory mandatory minimum sentence
for simple possession of crack cocaine.”
Spencer, 2019 WL 3369794, at *1 (citing Fair
Sentencing Act of 2010, PL 111-220, Aug. 3, 2010, 124 Stat.
2372). The Fair Sentencing Act, however, was not applied
retroactively. See United States v. Orr, 636 F.3d
944, 958 (8th Cir. 2011). While defendants
sentenced for specific crack cocaine offenses after the
passage of the Fair Sentencing Act were subject to shorter
terms of imprisonment, defendants sentenced for those same
crimes before the Act's passage were not entitled to a
reduction in their sentence.
404 of the First Step Act remedies this discrepancy and
allows courts to apply the Fair Sentencing Act retroactively,
but only if a defendant was convicted of a “covered
offense.” First Step Act § 404(b). The First Step
Act defines a “covered offense” as an offense (1)
whose penalty was modified by Fair Sentencing Act and (2)
that was committed before the passage of the Fair Sentencing
Act on August 3, 2010. Id. § 404(a). In short,
for Section 404 of the First Step Act to be applicable, a
defendant must have committed a specific offense involving
crack cocaine before August 3, 2010.
offense, however, involved methamphetamine, not crack
cocaine, and was committed in April 2018, nearly eight years
after the enactment of the Fair Sentencing Act. Perez's
crime does not qualify for a reduced sentence under Section