United States District Court, D. Connecticut
RULING ON FIRST STEP ACT MOTION
Stefan
R. Underhill, United States District Judge.
Charles
DeJesus seeks relief pursuant to the recently passed First
Step Act, requesting an immediate release or, in the
alternative, a prompt resentencing on his two counts of
conviction from 2002: conspiracy to possess with intent to
distribute 1000 grams or more of heroin (count twelve), and
conspiracy to possess with intent to distribute 50 grams or
more of cocaine base, i.e., “crack
cocaine” (count thirteen). See First Step Act
Motion (“FSA Mot.”), Doc. No. 1848. The
government opposes the motion on the basis that DeJesus's
conviction on count twelve, which is an uncovered offense,
triggers the same penalties as his conviction on count
thirteen and, therefore, he is ineligible for relief.
See Opp'n to FSA Mot., Doc. No. 1868. Further,
the government argues that DeJesus is not entitled to a
plenary resentencing. Id. For the following reasons,
DeJesus's motion is granted, and he is
entitled to a plenary resentencing.
I.
Background
On
April 2, 2002, after a jury trial, DeJesus was convicted on
two counts: conspiracy to possess with intent to distribute
1000 grams or more of heroin, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A) (count twelve);
and conspiracy to possess with intent to distribute 50 grams
or more of cocaine base, i.e., “crack cocaine,
” in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A) (count thirteen). See
Judgment, Doc. No. 1090. He was sentenced to 340 months'
imprisonment and five years of supervised release on each
count, all terms to run concurrently.[1] See Am. Judgment,
Doc. No. 1394.
II.
Discussion
A.
Eligibility for Relief
Following
DeJesus's sentencing, Congress passed the Fair Sentencing
Act of 2010, Pub. Law 111-220, 124 Stat. 2372 (“Fair
Sentencing Act”), which “‘reduced the
statutory penalties for cocaine base[] offenses' in order
to ‘alleviate the severe sentencing disparity between
crack and powder cocaine.'” United States v.
Sampson, 360 F.Supp.3d 168, 169 (W.D.N.Y. 2019) (quoting
United States v. Peters, 843 F.3d 572, 575 (4th Cir.
2016)). In 2018, Congress passed, and the President signed
into law, the First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (“First Step Act”). Section 404 of the First
Step Act made retroactive some provisions of the Fair
Sentencing Act. First Step Act § 404(b). First Step Act
relief is available to those convicted of a “covered
offense, ” which Section 404 defines as “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 . . ., that was committed before
August 3, 2010.” First Step Act § 404(a).
At the
time of DeJesus's sentencing, pre-Fair Sentencing Act,
cases involving 50 grams or more of crack cocaine fell under
21 U.S.C. § 841(b)(1)(A) and carried a mandatory minimum
penalty of ten years' incarceration and a maximum of
life. See United States v. Gonzalez, 420 F.3d 111,
121 (2d Cir. 2005). Section two of the Fair Sentencing Act
changed the statutory section and penalties for cases
involving 50 grams or more of crack cocaine; that quantity of
crack cocaine now falls under 21 U.S.C. §
841(b)(1)(B)(iii) and carries a mandatory minimum penalty of
five years' incarceration and a maximum penalty of forty
years' incarceration. See Fair Sentencing Act
§ 2. Accordingly, because the Fair Sentencing Act
modified the penalties for a crime involving 50 grams or more
of crack cocaine, that crime, if committed before August 3,
2010, is a “covered offense” for purposes of the
First Step Act. See First Step Act § 404(b).
The United States Probation Office also concluded that
DeJesus's conviction on count thirteen is a covered
offense. See PSR Addendum, Doc. No. 1856 at 3.
The
government argues, however, that DeJesus is not entitled to
relief because his other count of conviction, for a heroin
trafficking conspiracy, triggered the same statutory
penalties and was not a covered offense. Opp'n to FSA
Mot., Doc. No. 1868. It is, however, the statute of
conviction that drives eligibility for purposes of the First
Step Act. See United States v. Allen, 2019 WL
1877072, at *3 (D. Conn. Apr. 26, 2019) (“Under the
plain language of [section 404], whether an offense is a
‘covered offense' is determined by examining the
statute that the defendant violated.” (internal
citations and quotation marks omitted)). Quite simply,
DeJesus was convicted of a crack cocaine offense, on count
thirteen, the penalties for which were changed by the First
Step Act. Accordingly, DeJesus is eligible for relief under
the First Step Act on count thirteen because he was convicted
of a covered offense that was committed before August 3,
2010. His conviction on count thirteen was premised on his
violation of 21 U.S.C. § 841(b)(1)(A), the statutory
penalties for which were reduced by section 2 of the Fair
Sentencing Act of 2010. See Am. Judgment, Doc. No.
1394; see also United States v. Williams, 2019 WL
2865226, at *3 (S.D.N.Y. July 3, 2019). Therefore, DeJesus
was convicted of a “covered offense, ” and he is
eligible for relief under the First Step Act.
Denying
DeJesus relief under the First Step Act because he was
convicted of a different offense that triggered the same
penalties would, in my view, limit the remedial nature of the
First Step Act. See United States v. Rose, 379
F.Supp.3d 223, 229 (S.D.N.Y. 2019) (“Both the Fair
Sentencing Act and the First Step Act have the remedial
purpose of mitigating the unfairness created by the
crack-to-powder cocaine ratio, and the statutes should be
construed in favor of broader coverage.”); see also
Allen, 2019 WL 1877072, at *2-3 (“Congress wanted
to further the Fair Sentencing Act's objective of
mitigating the effects of a sentencing scheme that had a
racially disparate impact. 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.” (internal
citations omitted)). Accordingly, DeJesus is eligible for
relief under the First Step Act.
B.
Scope of Relief
DeJesus
argues that although his conviction on count twelve is not a
“covered offense” and, therefore, does not itself
entitle him to relief under the First Step Act, his covered
offense, count thirteen, entitles him to a plenary
resentencing on both counts. See Mem. in Supp., FSA
Mot., Doc. No. 1861. I have previously determined that a
defendant who is entitled to relief under the First Step Act
for a covered offense is also entitled to a full resentencing
on related convictions. See First Step Act Ruling,
United States v. Medina, 05cr58 (SRU) (D. Conn. July
17, 2019), Doc. No. 1466. For reasons similar to those in
Medina, DeJesus is entitled a plenary resentencing.
The
First Step Act contains a broad grant of authority to
“impose a reduced sentence as if sections 2 and 3 of
the Fair Sentencing Act of 2010 were in effect” at the
time of the commission of the offense. First Step Act §
404(b). The court has discretion in granting relief under the
First Step Act. See First Step Act § 404(c)
(“Nothing in this section shall be construed to require
a court to reduce any sentence pursuant to this
section.”). I recognize that the majority of courts
have decided that eligibility for relief under the First Step
Act for a covered offense does not entitle a defendant to a
full, plenary resentencing if there are also uncovered
offenses. See, e.g., United States v. Davis, 2019 WL
1054554, at *2 (W.D.N.Y. Mar. 6, 2019) (declining to hold a
plenary resentencing because the First Step Act does not
“expressly permit the type of plenary resentencing or
sentencing anew that Davis advocates”); United
States v. Martin, 2019 WL 2289850, at *3 (E.D.N.Y. May
29, 2019) (“As the language of the statute makes clear,
the FSA ‘expressly' allows a sentencing court to
impose a reduced sentence as if the defendant faced a lower
mandatory minimum sentence when he committed the crimes. It
does not by its text permit the sentencing court to reduce
the sentence based on changes in the law other than the
retroactive application of the Fair Sentencing Act.”);
United States v. Crews, 385 F.Supp.3d 439, 444-45
(W.D. Pa. 2019) (“This court . . . cannot conduct a
plenary resentencing under the First Step Act because the
First Step Act specifically provides that the sentencing is
limited to imposing a reduced sentence ‘as if sections
2 and 3 of the Fair Sentencing Act' were in effect when
the defendant committed the offense.” (quoting First
Step Act § 404(b)); United States v. Rivas,
2019 WL 1746392, at *8 (E.D. Wis. Apr. 18, 2019) (“The
First Step Act does not ‘expressly permit' the
court to conduct a plenary resentencing.”).
As I
decided in Medina, I respectfully decline to follow
that reasoning, because I do not believe the First Step Act
should be read so narrowly. The First Step Act grants broad
discretion to judges to decide whether to impose a reduced
sentence, and I believe that should be read in the most
comprehensive way possible, consistent with the remedial
purpose of the First Step Act. Limiting resentencing to only
the covered offense not only minimizes the benefit of the
First Step Act, it also conflicts with the Sentencing
Guidelines and weakens a sentencing court's authority. A
sentencing court must sentence the defendant, not
the crime, and must craft a sentence that is
“‘sufficient, but not greater than necessary'
to fulfill the purposes of sentencing.” United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc) (quoting 18 U.S.C. ยง 3553(a)). When resentencing
is permitted by statute, allowing a court to look only at the
covered offense, and not the entirety of the circumstances,
undermines the great responsibility a sentencing court
undertakes-to impose a fair sentence upon the defendant. The
statutory authority ...