United States District Court, D. Connecticut
RULING GRANTING DEFENDANT'S FIRST STEP ACT MOTION
FOR RESENTENCING
JANET
BOND ARTERTON, U.S.D.J.
Defendant
Troy Napper[1] moves for relief under the First Step Act
of 2018, seeking immediate release or resentencing. ([Doc. ##
36, 38].) While not opposing Defendant's claim of
eligibility under the First Step Act, the Government opposes
any sentence reduction. ([Doc. # 39].) For the
reasons that follow, the Court grants Mr. Napper's motion
for resentencing and sentences him to a reduced term of 135
months imprisonment and six years of supervised release* As
background, on May 15, 2009, Mr. Napper pleaded guilty to one
count of distribution and possession with intent to
distribute 5 grams or more of a mixture containing a
detectible amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B). ([Doc. # 25].) The
Government had previously filed a second offender notice
pursuant to 21 U.S.C. § 851, which is not put in issue
by Defendant's motion. ([Doc. # 14].) Due to his career
offender status, Mr. Napper's original Guidelines range
was 262-327 months, and as a result of the § 851 notice,
he was subject to a mandatory minimum sentence of 10 years.
On July 29, 2009, the Court sentenced Mr. Napper outside the
Guidelines to 188 months of imprisonment, and eight years of
supervised release. ([Doc. #31].)
Defendant's
motion is based on Section 404 of the First Step Act, which
provides:
(a) DEFINITION OF COVERED OFFENSE.-In this section, the 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
(Public Law 111-220; 124 Stat. 2372), that was committed
before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.-A court that imposed a
sentence for a covered offense may, on motion of the
defendant, the Director of the Bureau of Prisons, the
attorney for the Government, or the court, impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of
2010 (Public Law 111-220; 124 Stat. 2372) were in effect at
the time the covered offense was committed.
FIRST STEP ACT OF 2018, PL 115-391, December 21, 2018, 132
Stat. 5194.
The
Government agrees that Mr. Napper is eligible for a sentence
reduction because his conviction on Count one is a
"covered offense" under the First Step Act. The
Government nonetheless requests that the Court not
exercise its discretion to reduce Mr. Napper's sentence
and argues that he is not entitled to a "plenary
resentencing" at which the Court would apply current law
to determine whether the career offender enhancement remains
applicable.
The
Court has carefully considered the parties' analyses of
whether a plenary resentencing hearing is permissible under
the First Step Act. However, the Court concludes that under
the circumstances of this case, appropriate relief can be
granted without weighing in on this difficult issue that has
divided the courts. See United States v. Rose, 379
F.Supp. 3d 223, 227 (S.D.N.Y. 2019) ("District courts
across the country, including within this circuit, have been
divided as to defendants' eligibility for relief and the
exact nature of the proceedings that sentencing judges should
be conducting pursuant to the now-retroactive Fair Sentencing
Act, including whether district courts may consider facts
that have occurred post-sentencing.") Instead, the Court
will resolve Defendant's Motion by considering his
revised sentencing range under the Fair Sentencing Act and
exercising its "authority to vary from the crack cocaine
Guidelines based on policy disagreement with them" and
proportionally reducing Defendant's sentence. Spears
v. United States, 555 U.S. 261, 264 (2009).
Tn
2009, the Court's sentence varied from the advisory
Guidelines range of 262-317 months of imprisonment. The Court
imposed a non-Guidelines sentence of 188 months imprisonment.
As Mr. Napper calculates, a variance from 262 to 188 months
represents an approximately 28% downward variance. At that
sentencing, the Court explained the variance by stating that
"[s]entencing within the applicable sentencing
guidelines is far greater than necessary to serve the
objectives of 18 U.S.C. []§ 3553(a). To reflect the
seriousness of the defendant's offense of drug
trafficking, and to reflect defendant's persistent
criminal activities, a lengthy but lesser non-guideline
sentence will adequately serve the goals of deterrence and
public protection." (Statement of Reasons [Doc. # 37-5]
at 3.) The Court noted that the "length of this
non-guidelines sentence also takes into consideration the
unwarranted disparities resulting from the cocaine
powder/crack guidelines[.]" (Id.)
Starting
now from the revised Guidelines calculation of 188-235 months
imprisonment, the Court again finds that substantially the
same considerations that led it to vary downward by 28% in
2009 today counsel varying downward by the same proportion to
a sentence of 135 months. To date, Mr. Napper has served
approximately 127 months in prison. This lengthy period of
incarceration is adequate to serve the purposes of the §
3553(a) factors-namely, the seriousness of Defendant's
offense, respect for the law, just punishment, deterrence,
and protection of the public-without being greater than
necessary. See United States v. Simons, 375 F.Supp.
3d 379, 389 (E.D.N.Y. 2019) (noting increased chance of
recidivism and unnecessary diversion of resources associated
with harsher sentences). This reduction will serve the
purposes of the First Step Act and the interests of justice,
.
Additionally,
the Court agrees that if Mr. Napper had originally been
sentenced as if Sections 2 and 3 of the Fair Sentencing Act
were in effect at the time his covered offense was committed,
he would have been subject to a supervised release term of
six years to life, rather than the eight-year mandatory
minimum to which he was subject in 2009. The Court believes
that a six-year term will be adequate to accomplish the goals
of supervised release. See S. Rep. No. 98-225, 124
(1983) (declaring in relevant part that "the primary
goal [of supervised release] is to ease the defendant's
transition into the community after the service of a long
prison term for a particularly serious offense").
In
reducing Mr. Napper's sentence, the Court acknowledges
the Government's justified concerns over Defendant's
numerous disciplinary citations while in Bureau of Prisons
custody, (Opp. at 16). This record is somewhat mitigated by
Defendant's use of Bureau of Prison programming and by
the absence of any record of disciplinary citations between
November 2017 and the filing of the Addendum to the PSR on
March 8, 2019. Further, Mr. Napper argues that his
"record in prison is a product of his extensive mental
health and substance abuse problems, as well as the extremely
dangerous environment in which he finds himself, " to
which the Government did not respond. (First Step Act Mem. at
13.) The Court agrees with Defendant that his behavioral
issues and substance abuse problems "would be better
addressed with treatment as a condition of supervised
release, or participation in Support Court, rather than with
more time in prison." (Id. at 15.)
In
resentencing Mr. Napper to a term of time of 135 months, with
credit for time served, the Court anticipates a high
likelihood that Mr. Napper may be eligible for immediate
release. (See First Step Act Mem. at 5.) The
Government is directed to notify the Court by 5:00 p.m. on
Tuesday, October 1, 2019 of any objection by the Bureau of
Prisons' calculation of good time credit for Mr. Napper
and ensure that he is released as soon as he is deemed to be
eligible.
In sum,
it is ordered that Defendant's Motion under 18 U.S.C.
§ 3582(c)(1)(B) and § 404(b) of the First Step Act
of 2018 is GRANTED and the Defendant's previously imposed
sentence of imprisonment (as reflected in the last
judgment issued) of 188 months is reduced to 135
months on Count One of the Indictment. The
Defendant's term of ...