United States District Court, D. Connecticut
ORDER GRANTING DEFENDANT'S MOTION FOR RELIEF
UNDER FIRST STEP ACT
BOND ARTERTON, U.S.D.J.
Clayton Benjamin moves for "immediate release, or in the
alternative, to schedule a resentencing hearing, pursuant to
the First Step Act of 2018" ("FSA"). (Mot. for
FSA Relief [Doc. #391].) The Government opposes. ([Doc. #
summary, the Court concludes that Defendant was convicted of
violating 21 U.S.C. § 841(b)(1)(B), and because the Fair
Sentencing Act of 2010 modified the statutory penalty for
violations of that statute, Mr. Benjamin committed a
"covered offense" and is eligible for relief under
the FSA. While the parties debate the availability of a
"plenary" resentencing proceeding, even in a
limited resentencing, the Court must use the 2018 Guidelines
Manual to calculate the advisory range currently applicable
to Defendant in order to exercise discretion in determining
what reduction in sentence, if any, he should be granted.
That determination necessarily requires calculation of
Defendant's total offense level, which depends in part
upon whether he is subject to the career offender enhancement
of § 4B1.1. Because Defendant's prior convictions
under Conn. Gen. Stat. § 21a-277(a) do not qualify as
"controlled substance offenses" for purposes of the
Guidelines' career offender enhancement, and in keeping
with the purpose of the Second Circuit's "one book
rule" and to avoid perpetuating an incorrect
interpretation of the Sentencing Guidelines, Defendant's
advisory guidelines range under the 2018 Guidelines Manual
and its interpretation by the courts does not include the
Guidelines' career offender enhancement. Because he has
now been incarcerated far longer than any non-career offender
Guidelines range applicable to his conduct and count of
conviction, regardless of whether that range is calculated
using cocaine base or powder cocaine, Defendant's
previously imposed sentence of 188 months' imprisonment
on Count One of the Indictment is reduced to time served.
March 2010, Defendant pleaded guilty to Count One of the
Indictment, which charged him with conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(B). (Plea
Agreement [Doc. # 130] at 1; Indictment [Doc. # 1] at
¶¶ 1, 3.) Before Defendant entered that plea, the
Government filed a notice of Defendant's prior
convictions pursuant to 21 U.S.C. § 851. (Notice
Charging Prior Offense [Doc. #114].) That Notice cited five
prior convictions for violations of Connecticut drug laws:
four convictions for Sale of Narcotics, in violation of Conn.
Gen. Stat. § 21a-277(a), and one conviction for
Possession of Narcotics, in violation of Conn. Gen. Stat.
§ 21a-279(a). (Id. at 1-2.) "Therefore,
the offense charged in Count One of the Indictment carrie[d]
a mandatory minimum penalty of ten years' imprisonment, a
maximum penalty of life imprisonment... [and] a term of
supervised release of at least eight years and as much as
life." (Plea Agreement at 2.)
"agree[d] and acknowledge[d] that the quantity involved
of the mixture and substance containing a detectable amount
of cocaine base was in excess of 35 grams, but not more than
50 grams." (Plea Agreement at 3.) In the Plea Agreement,
Defendant and the Government "agree[d] that... the
defendant's base level offense would be 28" based on
the quantity of cocaine base at issue, resulting in a
"total offense level of 25" based on
Defendant's acceptance of responsibility. (Id.
at 4.) The parties also "agree[d] that the defendant
falls within Criminal History Category VI."
(Id.) An offense level of 25 with a Criminal History
Category VI produced an advisory Sentencing Guidelines range
of 110 to 137 months of imprisonment, but the bottom of that
range was increased to 120 months based on the applicable
mandatory minimum term of imprisonment often years.
Plea Agreement also noted that "[i]t also appears,
however, that the defendant may qualify as a career offender,
pursuant to § 4Bl.l(a) of the Sentencing
Guidelines." (Id.) If Defendant "does
qualify as a Career Offender," his total offense level
would be 34. (Id.) Combined with a Criminal History
Category VI, that offense level produced a Sentencing
Guidelines range of 262 to 327 months of imprisonment.
was sentenced to a term of imprisonment of 188 months and an
eight-year term of supervised release. (Judgment [Doc. #
229].) He was sentenced "using the November '09
guidelines." (Tr. of Sentencing Hearing [Doc. # 243] at
5:9-10.) The 188-month sentence was "a departure under
U.S.S.G. § 5K2.0" based on "the absence of
empirical basis for the crack-powder cocaine guideline range
disparity, as set out in Kimbrough v. United
States....." (Judgment.) The Court found that
"a departure reflecting a 1:1 ratio is warranted and
consistent with 18 U.S.C. § 3553(b)."
(Id.) The sentence of 188 months' imprisonment
fell within what would have been the applicable career
offender Guidelines range of 188 to 235 months "[w]ere
[Defendant] charged with powder or were crack and powder
treated equally." (Tr. of Sentencing Hr. at 7:17-19.) At
sentencing, the Court noted that "the record . . .
lacks, other than the plumber's apprentice program"
of which Defendant had then completed approximately 1, 700 of
the required 8, 000 hours, "a serious effort to change
course." (Id. at 36:24-37:1.) The Court
determined that Mr. Benjamin's "risk of
recidivism" was "high" or "virtually
certain unless there is some major life change which
overcomes" his prior challenges. (Id. at
37:14-18.) The Court concluded that a "significant
period of incarceration is needed to provide the education or
vocational training that will produce a person who comes out
with a whole other set of skills and a whole commitment to
using those skills in a law-abiding and productive way."
(Id. at 38:4-9.) The Court described Mr.
Benjamin's sentence as long enough to "give you a
chance to complete a full apprenticeship, to have a full set
of tools with which you can go out and get a real job that
pays real money so you can be a real law-abiding
citizen." (Id. at 41:3-6.)
Benjamin has now served approximately 120 months of his
188-month sentence. Defendant's counsel represents that
during that time, Defendant has completed the 8, 000-hour
plumbing apprenticeship program. (Mem. Supp. FSA Mot. [Doc. #
393] at 9.) The "Bureau of Prisons has been unable to
confirm that Mr. Benjamin participated or completed in the
apprenticeship program, although a BOP employee wrote in an
email to Mr. Benjamin's BOP counsellor, 'I do
remember Inmate Benjamin being part of the plumbing
apprenticeship program.'" (Reply Supp. FSA Mot.
[Doc. # 395] at 12.) During the current period of
incarceration, Mr. Benjamin has worked for approximately 54
months as a plumber at FCI Gilmer. (Ex. C (Work Detail) to
Reply [Doc. # 395-3].)
Eligibility for Relief Under the First Step Act
404 of the First Step Act of 2018 limits relief under that
Act to defendants who committed a "covered
offense," which "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. 2371), that was committed
before August 3, 2010." First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194 (2018). Section 2 of the Fair
Sentencing Act of 2010 modified the statutory penalty for
violations of 21 U.S.C. § 841(b)(1)(B), under which Mr.
Benjamin was convicted in this case. See Pub L, No.
111-220, 124 Stat. 2371 (2010). "Section
841(b)(1)(B)(iii) now provides for a sentencing range of 5 to
40 years if the offense involved '28 grams or more'
but less than 280 grams of crack cocaine." (Mem. Supp.
FSA Mot. at 11.)
Government argues nonetheless that Defendant is
"statutorily ineligible for a sentencing reduction under
Section 404 of the First Step Act" because his violation
"is not a 'covered offense' under the First Step
Act" given that his "sentencing exposure under the
First Step Act is identical to what he faced at the time of
his original sentencing, based on the quantity of drugs
involved in his violation." (Gov't Opp. to FSA Mot.
[Doc. # 394] at 1.) The Government's argument is
based on its interpretation of "violation" in the
FSA's definition of "covered offense" as
referring "more broadly to the actual offense conduct,
to the extent that can be discerned from the record."
(Id. at 7.) Defendant argues that
"violation" refers specifically to "the
statutory provision [the defendant] pled guilty to (not the
drug quantity determined by the Court at sentencing or
stipulated to by the parties in a plea agreement)."
(Mem. Supp. FSA Mot. at 12.)
"growing number of courts have concluded [that] 'it
is the statute of conviction, not actual conduct, that
controls eligibility under the First Step Act.'"
United States v. Allen,384 F.Supp.3d 238, 241 (D.
Conn. 2019) (quoting United States v. Martin, 2019
WL 1556617, at *3 (E.D.N.Y. Apr. 10, 2019)); see, e.g.,
United States v. Davis, 2019 WL 1054554, at *3 (W.D.N.Y.
Mar. 6, 2019) ("Under the plain language of the [FSA],
whether an offense is a 'covered offense' is
determined by examining the statute that the defendant
violated," not by the offense conduct.). And "[t]o
the extent the statutory text is ambiguous, the ambiguity is
dispelled by considering the purpose underlying the First
Step Act," "further[ing] the Fair Sentencing
Act's objective of . mitigating the effects of a
sentencing scheme that had a racially disparate impact."
Allen, 384 F.Supp.3d at 242 (citation omitted).
"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." Id. (citation omitted). This Court
agrees with the majority of district courts to consider this
issue and concludes ...