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United States v. McKinney

United States District Court, D. Kansas

May 9, 2019

United States of America, Plaintiff,
v.
Jason McKinney, Defendant.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         In June 2007, defendant Jason McKinney pled guilty to one count of possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii) and one count of use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). At Mr. McKinney's sentencing hearing in March 2009, the court calculated a base offense level of 38 after converting quantities of cocaine and cocaine base to more than 56, 000 kilograms of marijuana. Mr. McKinney then received a two-level reduction pursuant to Application Note 10(D) of U.S.S.G. § 2D1.1 because the offense involved cocaine base and another controlled substance, bringing the offense level to 36. Ultimately, the court calculated an adjusted offense level of 42 after applying a four-level enhancement under U.S.S.G. § 3B1.1(a) based on Mr. McKinney's role in the offense and a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. With a criminal history category of V, the guidelines provided a sentencing range of 360 months to life. The court sentenced Mr. McKinney to 360 months imprisonment on the first count and 60 months imprisonment on the second count, to run consecutively, for a total term of 420 months.[1]

         Mr. McKinney now seeks relief under section 404 of the First Step Act of 2018, which authorizes a court to “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). Section 2 of the Fair Sentencing Act “increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum.” Dorsey v. United States, 567 U.S. 260, 269 (2012). Section 3 of the Fair Sentencing Act eliminated the 5-year mandatory minimum sentence for simple possession of crack cocaine. See id.

         The parties agree that if the Fair Sentencing Act of 2010 was in effect at the time of Mr. McKinney's offense, Mr. McKinney's guideline range would remain unchanged. Mr. McKinney, however, contends that the First Step Act authorizes plenary resentencing such that the court may consider evidence of Mr. McKinney's rehabilitation since his sentencing to support a downward variance from the advisory guidelines range. The government opposes the motion, arguing that the First Step Act does not contemplate or authorize plenary resentencing. According to the government, Mr. McKinney's motion must be denied because his guideline range is unchanged despite the application of the Fair Sentencing Act of 2010.

         As will be explained, the court agrees with the majority of courts that have addressed this issue and concludes that the First Step Act does not authorize a full resentencing but only an adjustment of an otherwise final sentence-a “recalculation of a defendant's Guidelines numbers under the Fair Sentencing Act and a possible sentencing reduction consistent therewith, if warranted.” See United States v. Lewis, 2019 WL 1923047, at *23 (D.N.M. Apr. 30, 2019) (quoting United States v. Davis, 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019) and citing United States v. Sampson, 360 F.Supp.3d 168, 171 (W.D.N.Y. 2019) (stating that “a full resentencing is neither required nor called for” by the First Step Act); United States v. Potts, 2019 WL 1059837, at *2 (S.D. Fla. March 6, 2019) (concluding that all determinations made at the time of sentencing other than those relating to recalculation of imprisonment time based on the Fair Sentencing Act's sections 2 and 3 must remain unchanged); United States v. Logan, 2019 WL 498519, at *1 (D. Kan. Feb. 8, 2019) (denying motion where First Step Act did not impact defendant's Guidelines range)). Thus, because a recalculation of Mr. McKinney's Guidelines numbers under the Fair Sentencing Act results in the same Guideline range as applied to Mr. McKinney at his initial sentencing, the court declines to reduce Mr. McKinney's sentence and denies his motion.

         Mr. McKinney's motion is brought pursuant to 18 U.S.C. § 3582(c)(1)(B), which permits modification of an imposed term of imprisonment to the extent “expressly permitted by statute.” The court agrees-and the government does not dispute-that this provision is the appropriate vehicle for sentence reductions sought under the First Step Act. See United States v. Ward, 2019 WL 1620439, at *3 n.4 (D. Kan. Apr. 16, 2019) (citing Davis, 2019 WL 1054554, at *2 (collecting cases)); accord United States v. Glover, F.Supp.3d, 2019 WL 1924706, at *7 (S.D. Fla. May 1, 2019); United States v. Fields, 2019 WL 1900373, at *2 (D.N.M. Apr. 29, 2019); United States v. Brown, 2019 WL 1895090, at *2 (D. Minn. Apr. 29, 2019); United States v. Wooters, 2019 WL 1897085, at *3 (S.D. Ill. Apr. 29, 2019).

         The only question, then, is whether the relevant statute-the First Step Act of 2018- “expressly permits” plenary resentencing as urged by Mr. McKinney, for he does not dispute that his Guideline range does not change through retroactive application of the Fair Sentencing Act. As noted earlier, section 404(b) of the First Step Act provides that a district court “may . . . 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.” Mr. McKinney argues that this language places no limit on the extent to which the court may reduce a sentence and places no restriction at all on what a court may consider in imposing a reduced sentence. Mr. McKinney further asserts that Congress's use of the word “impose” signals an intent to authorize plenary resentencing and that if Congress had intended to condition eligibility to cases in which the guideline range had been lowered, it would have expressly indicated that intent.

         Mr. McKinney has not directed the court to any case that is factually analogous to the one here-that is, one in which the defendant's advisory guideline range stayed the same after an application of the First Step Act and yet the court engaged in plenary resentencing.[2] The most analogous case that the court has found is United States v. Glover, F.Supp.3d 2019 WL 1924706 (S.D. Fla. May 1, 2019). In that case, the defendant's Guidelines range at the time of his initial sentencing was 360 months to life imprisonment and the court sentenced him to 360 months imprisonment. Id. at *2-3. In resolving the defendant's motion for a reduction under the First Step Act, the court, over the defendant's objection, held that the Fair Sentencing Act of 2010 had no impact on his sentence because his guideline range under retroactive application of the Fair Sentencing Act remained 360 months to life imprisonment. Id. at *6-9. The court then held that the defendant was not entitled to a full resentencing under § 3582(c)(1)(B). Beginning with the statutory language, the court explained:

The Court must construe a criminal statute narrowly and according to its plain meaning, and where “the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said.” United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Here, Section 3582(c)(1)(B) authorizes a court to “modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . .” (Emphasis added.) In turn, pursuant to Section 404(b) of the First Step Act of 2018, the Court “may impose a reduced sentence as if sections 2 or 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, 132 Stat. 5194 (emphasis added). As stated previously, Section 2 of the Fair Sentencing Act expressly increased the amount of crack cocaine necessary to invoke the mandatory minimum sentences and the statutory maximum sentences under Section 841(b); Section 3 eliminated the mandatory minimum sentence for simple possession of crack cocaine.

Id. at *9. The court concluded that “nothing in the plain language” of the First Step Act expressly authorized the court to conduct a full resentencing. The Glover court went on to explain that the “understanding of Section 3582(c)(1)(B) as a narrow exception to the rule of finality that does not allow for a full do novo resentencing finds further support in the Federal Rules of Criminal Procedure.” Id. at *10. Specifically,

Rule 43 requires that a defendant be present at “sentencing, ” Fed. R. Crim. P. 43(a)(3), but does not require that a defendant be present if “[t]he proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).” Fed. R. Crim. P. 43(b)(4). Like Section 3582(c), Rule 35 authorizes a court to correct or reduce a sentence in a limited set of circumstances: first, it authorizes a court to “correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days after sentencing, Fed. R. Crim. P. 35(a); and second, it authorizes a court to reduce a sentence for substantial assistance upon the government's motion, Fed. R. Crim. P. 35(b). The fact that Rule 43(a)(3) requires the defendant's presence for sentencing while under Rule 43(b)(4) the defendant's presence is not required for Section 3582(c) and Rule 35 proceedings is based on the distinction that 3582(c) and Rule 35 proceedings are narrow in scope and are not full, de novo resentencing proceedings. See Dillon, 560 U.S. at 827-28 (finding the fact that Rule 43 distinguishes Section 3582(c) and Rule 35 from all other sentencing proceedings supports the understanding that Section 3582(c)(2) is “a narrow exception to the rule of finality” during which the Sixth Amendment interests identified in United States v. Booker, 543 U.S. 220 (2005) do not apply).

Id. Ultimately, then, the court determined that the defendant was not entitled to a reduction under § 3582(c)(1)(B) because a retroactive application of the Fair Sentencing Act did not lower the applicable guideline range. Id. at *13; accord United States v. Caldwell, 2019 WL 1923908, at *1-2 (N.D. Ohio Apr. 30, 2019) (no reduction warranted where guideline range did not change and sentence remained justified by considerations previously set forth in plea agreement and discussed at original sentencing).

         In those cases in which a defendant's guideline range has been lowered by retroactive application of the Fair Sentencing Act, the majority of courts have simply recalculated that defendant's sentence and have refused to engage in plenary resentencing, finding that plenary resentencing is not authorized by § 3582(c)(1)(B) or the First Step Act. In United States v. Davis, 2019 WL 1054554 at *2 (W.D.N.Y., Mar. 6, 2019), the court found that the Act “contemplates a recalculation of a defendant's Guidelines numbers under the Fair Sentencing Act and a possible sentencing reduction consistent therewith, if warranted.” Judge Skretny observed that “[n]owhere does the Act expressly permit the type of plenary resentencing or sentencing anew that [the defendant] advocates.” Id. Similarly, in United States v. Potts, 2019 WL 1059837 at *2 (S.D. Fla., Mar. 6, 2019), the court held that a defendant is not entitled to a full resentencing during a § 3582(c) proceeding; that § 3582(c) does not give a court “jurisdiction to consider extraneous resentencing issues, ” and that “original sentencing determinations remain unchanged” in a § 3582(c) resentencing. Id. The court found that the First Step Act did not “expressly” provide for plenary resentencing or reconsideration of prior sentencing decisions but simply authorized a court to “reimpose a reduced sentence” as if the Fair Sentencing Act's increased cocaine base requirements were in effect at the time the covered offense was committed. Id.; accord United States v. Lawson, 2019 WL 1959490, at *3 (N.D. Ohio May 2, 2019) (“[N]othing in the First Step act anticipates a full re-sentencing . . . other than the retroactive application of the reduced penalties for crack cocaine set out in the Fair Sentencing Act.”); United States v. Glore, 2019 WL 1761581, at *5 (E.D. Wis. Apr. 22, 2019) (agreeing with other courts that First Step Act does not expressly permit the court to conduct a plenary resentencing); United States v. Russo, 2019 WL 1277507 at *1 (D. Neb. Mar. 20, 2019) (rejecting argument that First Step Act authorized full resentencing in part because “it would work an injustice to offenders sentenced in the past who did not have a crack cocaine conviction qualifying for sentence reduction pursuant to the Fair Sentencing Act of 2010”); United States v. Sampson, 360 F.Supp.3d 168, 170 (W.D.N.Y. 2019) (a full resentencing is “neither required nor called for”).

         Significantly, the Potts court also rejected an argument made by Mr. McKinney here- that by using the word “impose, ” the First Step Act allows courts to conduct full resentencings. As noted by the Potts court, the Act's use of the word “impose” must be read in context: “The First Step Act authorizes a court to ‘impose a reduced sentence,' and otherwise refers to a proceeding to ‘reduce' a sentence.” Potts, 2019 WL 1059837, at *3. Read in that context, the Potts court concluded that the word “impose” did not invite a plenary resentencing. See id. Following Potts, other courts have agreed that Congress's use of the word ...


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