United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE
Allen moves pursuant to the First Step Act of 2018, Pub. L.
No. 115-391, § 404, 132 Stat. 5194, 5222 (2018), for a
reduction in his sentence of 322 months' imprisonment.
The sentence was imposed in 1998 based on the then-mandatory
sentencing guidelines for offenses involving crack cocaine
committed by a person who qualified as a career offender
under U.S.S.G. § 4B1.1. The First Step Act is a remedial
statute that serves to extend reductions in crack cocaine
statutory penalties provided by the Fair Sentencing Act of
2010 to persons previously ineligible for a reduction. For
reasons that follow, I conclude that Congress, in enacting
the First Step Act, intended to give the Court discretion to
reduce Mr. Allen's sentence. Exercising that discretion,
I reduce the sentence to time served.
Allen was indicted along with others for participating in a
conspiracy to distribute 5 kilograms or more of powder
cocaine and 50 grams or more of cocaine base in violation of
21 U.S.C. §§ 846 and 841(a)(1) (count one). ECF No.
263-6 at 1-2. He was also charged with carrying a firearm in
connection with a drug trafficking offense in violation of 18
U.S.C. § 924(c) (count four); and unlawfully possessing
a firearm in violation of 21 U.S.C. § 924(g)(1) (count
five). Id. at 4-5. At the sentencing hearing, I
found by a preponderance of the evidence that Mr. Allen's
participation in the drug conspiracy made him accountable for
distributing 675 grams of crack cocaine. ECF No. 265-1 at 7.
Pursuant to the Sentencing Guidelines Drug Quantity Table,
675 grams of crack cocaine produced a base offense level of
36. See U.S.S.G. § 2D1.1(c) (1997). Mr. Allen
was found to qualify as a career offender due to two prior
state felonies. Under the Guidelines, an individual who has
been designated a career offender may be subject to an
offense level greater than the otherwise applicable level,
depending on the maximum statutory penalty for the offense of
conviction. In Mr. Allen's case, the offense statutory
maximum was life, see 21 U.S.C. §
841(b)(1)(A)(iii) (2009), which resulted in an increase in
his base offense level from 36 to 37. See U.S.S.G.
§ 4B1.1(b). After a three-level reduction for acceptance
of responsibility, see id. § 3E1.1, the total
offense level was 34, producing a Guidelines range of 262-327
months. See id. ch. 5 pt. 1. Mr. Allen was sentenced
to 262 months on count one (the bottom of the then-mandatory
range), a mandatory consecutive term of 60 months on count
four, and a concurrent term of 120 months on count five, for
a total effective sentence of 322 months.
Fair Sentencing Act of 2010 was enacted in response to
widespread criticism of the relatively harsh treatment of
crack cocaine offenses compared to offenses involving powder
cocaine. See Dorsey v. United States, 567 U.S. 260,
268 (2012). The Act raised the threshold quantities of crack
required to trigger enhanced penalties under the Controlled
Substances Act. Before 2010, a violation involving 50 grams
or more of crack was punishable by a term of imprisonment of
at least 10 years and as much as life. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2009). Section 2 of the Fair
Sentencing Act increased the threshold quantity required to
support these penalties from 50 to 280 grams. In addition,
the quantity required to trigger a statutory penalty of five
to forty years' imprisonment was increased from 5 to 28
grams. Pub. L. 111-220, 124 Stat. 2372, 2372 (2010) § 2,
(codified at 21 U.S.C. § 841(b)(1)(A)(iii),
Sentencing Commission amended the Guidelines consistent with
the new statutory penalties created by the Fair Sentencing
Act. See Dorsey, 567 U.S. at 260; U.S.S.G. app. C,
amend. 750. The amendment lowered the base offense levels
associated with different quantities of crack cocaine.
See id. § 2D1.1 (2011). The Commission made the
amendment retroactive. See U.S.S.G. app. C, amend.
759; U.S.S.G. § 1B1.10(c). As a result, more than 7, 700
inmates received sentence reductions by October
2014.The Commission then amended the Drug
Quantity Table again, further reducing the base offense
levels associated with different quantities of crack cocaine.
See U.S.S.G. app. C, amend. 782.
amendments to the Guidelines did not benefit all persons who
had been sentenced for offenses involving crack cocaine prior
to 2010. Pertinent to Mr. Allen's case, the amendments
did not provide relief to a person designated as a career
offender whose final offense level was dictated by the
maximum statutory penalty applicable to his or her offense.
See id. § 4B1.1; see also United States v.
Mock, 612 F.3d 133, 135 (2d Cir. 2010)
(“[D]efendant was sentenced as a career offender under
U.S.S.G. § 4B1.1. Consequently, . . . he is ineligible
for a reduction in sentence based on the crack cocaine
amendments.” (emphasis omitted)). The issue presented
here is whether the First Step Act has given courts authority
to grant relief to persons in Mr. Allen's situation when
warranted. This a straightforward issue of statutory
pertinent provision, section 404 of the First Step Act,
provides: “[a] court that imposed a sentence for a
covered offense may, on motion of the defendant, . . . 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.” § 404(b), 132
Stat. at 5222. “[T]he term ‘covered offense'
means 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, ” and which was
committed before the Fair Sentencing Act was enacted.
Id. § 404(a). A defendant who was sentenced
under the Fair Sentencing Act, or whose motion under the
First Step Act was previously denied, is not eligible for
relief. Id. § 404(c). Section 404 further
provides that “[n]othing in this section shall be
construed to require a court to reduce any sentence pursuant
to this section.” Id.
Allen argues that his sentence was imposed for a
“covered offense” as defined in the First Step
Act, and he is therefore eligible for relief, because he was
convicted of violating a statute punishing an offense
involving 50 grams or more of crack cocaine, the penalties
for which have been lowered by the Fair Sentencing Act. The
government contends that Mr. Allen is not eligible for relief
because his offense conduct involved 675 grams of crack
cocaine, as found by the Court at the sentencing hearing, and
the penalty for an offense involving this quantity has not
been reduced. In the government's view, in other words,
the drug quantity that matters in determining whether a
defendant was sentenced for a “covered offense”
within the meaning of the First Step Act is not the statutory
quantity in the indictment but the quantity found by the
Court at sentencing.
with the defendant's interpretation of section 404.
“Under the plain language of [this section], whether an
offense is a ‘covered offense' is determined by
examining the statute that the defendant violated.”
United States v. Davis, No. 07-CR-245S, 2019 WL
1054554, *3 (W.D.N.Y. Mar. 6, 2019), appeal
docketed, No. 19-874 (2d Cir. Apr. 5, 2019). Mr. Allen
pleaded guilty to violating a statute applicable to an
offense involving 50 grams or more of crack cocaine. The
statutory penalty for this offense was modified by the Fair
Sentencing Act. 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. Martin, No. 03-cr-795, 2019 WL
1558817, at *3 (E.D.N.Y. Apr. 10, 2019) (quoting
Davis, 2019 WL 104554, at *2).
government suggests that the term “violation” in
the definition of “covered offense” creates an
intrinsic ambiguity because it can be construed to refer to
the facts of the defendant's “violation” as
found by the Court. To the extent the statutory text is
ambiguous, the ambiguity is dispelled by considering the
purpose underlying the First Step Act. Both parties agree
that no legislative history is available to document the
purpose of section 404. It is undisputed, however, that
Congress wanted to further the Fair Sentencing Act's
objective of mitigating the effects of a sentencing scheme
that had a racially disparate impact. See Dorsey,
567 U.S. at 268. Given this remedial purpose, the First Step
Act should be construed to provide courts with discretion to
reduce a sentence when the statute the defendant violated has
been modified by the Fair Sentencing Act to provide less
severe penalties. E.g., Noel v. N.Y.C. Taxi &
Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012).
This interpretation of the statute is in keeping with the
rule of lenity. See Pierre, 2019 WL 1495123, at *5
(applying rule of lenity to Section 404); see also United
States v. Simpson, 319 F.3d 81, 86 (2d Cir. 2002)
(“[T]he rule of lenity is generally applicable to the
Sentencing Guidelines as well as criminal statutes.”);
United States v. Fields, 113 F.3d 313, 325 (2d Cir.
1997) (“Simply put, the rule of lenity requires a
sentencing court -- when faced with an actual ambiguity over
which of two penalties should apply -- to select the lesser
absence of legislative history, additional guidance can be
drawn from the Commission's estimate that 2, 660
offenders are eligible for relief under section
As the Commission has explained, this estimate includes
people like Mr. Allen whose base offense level under the
career offender guideline has been lowered as a result of the
Fair Sentencing Act. See Sentence and Prison Estimate
Summary at 2 (noting that the estimated 2, 660
encompasses persons incarcerated as of May 26, 2018,
“whose sentencing range would be lower under the
current version of USSG § 2D1.1 than the version of that
guideline in effect on the date they were sentenced, or
who would have a lower sentencing range under USSG §
4B1.1 than the range determined by the court at sentencing
(due to a change in the statutory maximum penalty that
applied in the case).” (emphasis added)).
government's interpretation of section 404 would preclude
a court from granting relief when, as in this case, the
record contains a judicial finding of a drug quantity of 280
grams or more of crack cocaine based on a preponderance of
the evidence. Today, with limited exception, any fact that
enhances a statutory penalty must be proven beyond a
reasonable doubt. Alleyne v. United States, 570 U.S.
99, 103 (2013); Apprendi v. New Jersey, 530 U.S.
466, 476 (2000). While Alleyne and Apprendi
do not provide retroactive relief, Congress legislates in the
context provided by constitutional principles. See Rust
v. Sullivan, 500 U.S. 173, 191 (1991) (“[W]e
assume [that Congress] legislates in light of constitutional
limitations.”). Construing section 404 in the context