United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S REQUEST TO MODIFY
AMENDED JUDGMENT (DKT. NO. 92), VACATING SECOND AMENDED
JUDGMENT (DKT. NO. 62) AND AMENDING JUDGMENT TO FURTHER
REDUCE SENTENCE UNDER FIRST STEP ACT TO A DETERMINATE
SENTENCE OF 154 MONTHS
PAMELA PEPPER, United States District Judge.
April 26, 2019 order, the court granted the defendant's
motion for resentencing under the First Step Act of 2018, to
the extent that the motion asked the court to recalculate
under section 2(a) of the Fair Sentencing Act of 2010 the
sentence the defendant received on Count Two. Dkt. No. 99 at
21. The court deferred imposition of the reduced sentence
until it could get input from the probation office regarding
the re-calculated sentence. Id.
14, 2019, the probation office graciously provided an
addendum to the 2005 presentence investigation report. Dkt.
No. 100. The court thanks the probation office, as usual, for
its prompt and thorough assistance.
court discussed in its April 26, 2019 order, in 2005, the
defendant qualified as a career offender under §4B1.1(a)
of the guidelines. Dkt. No. 99 at 6-7. He also pled guilty to
a charge of using and carrying a firearm during and in
relation to a drug offense, in violation of 18 U.S.C.
§924(c)-an offense that carried (and still carries) a
mandatory minimum sentence of 60 months. Id. at 1-2;
Dkt. Nos. 10, 11. Under both the 2005 guidelines manual (in
effect on the defendant's original sentencing date) and
the 2018 guidelines manual (which the probation office used
to recalculate the guidelines as if the Fair Sentencing Act
of 2010 had applied), §4B1.1(c)(2), career offenders
convicted of violating §924(c) were subject to the
greater of the career offender guideline range plus the
60-month mandatory minimum or the range provided in
the chart in §4B1.1(c)(3).
defendant had not been convicted of violating §924(c),
calculating his Count Two sentence as if the FSA had been in
effect at the time of his offense would have resulted in a
lower guideline range. In 2005, he would have faced a
guideline range of 262 to 327 months under
§4B1.1(a)-level 37 minus 3 for acceptance of
responsibility, for an adjusted offense level of 34 in
criminal history category VI yielded that range. In 2019,
with the FSA in effect, level 34 minus 3 for acceptance of
responsibility, for an adjusted offense level of 31 in
criminal history category VI yielded a guideline range of 188
to 235 months under §4B1.1(a).
because the defendant not only qualified as a career offender
but also was convicted of violating §924(c),
§4B1.1(c)(2) governed the calculation of his guideline
range. That section provides that for career offenders
convicted of violating §924(c), the guideline range is
the greater of “the guideline range that results by
adding the mandatory minimum consecutive penalty required by
the 18 U.S.C. § 924(c) . . . count to the minimum and
the maximum of the otherwise applicable guideline range
determined for the count(s) of conviction other than the 18
U.S.C. § 924(c) . . . count” and “the
guideline range determined using the table in subsection
(c)(3).” In 2005, adding the mandatory minimum 60
months to the minimum and the maximum of the otherwise
applicable guideline range resulted in a range of 322 to 387
months. The chart in subsection (c)(3) resulted in a range of
262 to 327 months. So the first method of calculation
resulted in the greater sentence, and the defendant's
advisory range in 2005 was 322 to 387
2019, adding the mandatory minimum 60 months to the minimum
and the maximum of the otherwise applicable guideline range
results in a range of 248 to 295 months. The chart in
subsection (c)(3) has not changed in the intervening fourteen
years-it still results in a range of 262 to 327 months. In
2019, however, the range reflected in the chart results in
the greater sentence, and the defendant's advisory range
in 2019 is 262 to 327 months.
2005, Judge Clevert imposed a sentence of 262 months on Count
Two-the low end of the guideline range before adding the
60-month mandatory minimum for the §924(c) charge. One
might assume that, if Judge Clevert had sentenced the
defendant in 2019, all other things being equal, he would
have imposed a sentence of 188 months on Count Two, before
adding the 60-month mandatory minimum on the §924(c)
the court discussed in its April 26, 2019 order, on April 9,
2008, Judge Clevert resentenced the defendant on remand from
the Seventh Circuit. Dkt. No. 99 at 12; Dkt. Nos. 50, 51. At
resentencing, Judge Clevert reduced the sentence on Count Two
from 262 months to 180 months. The total 240-month sentence
Judge Clevert imposed on resentencing (180 months on Count
Two, plus 60 months consecutive on the §924(c) count)
represented a 25% reduction below the 322-month low end of
the then-applicable guideline range.
other things being equal, if the court reduces the low end of
the now-applicable, post-FSA total guideline range by that
same 25%, it comes up with a recalculated sentence of 196
months-136 months on Count Two, plus the 60 months
consecutive on the §924(c) count.
resentencing, Judge Clevert also gave the defendant credit
for the 42 months he'd spent in federal custody. Dkt. No.
51 at 2. Crediting that 42 months against the 2008 sentence,
Judge Clevert imposed a total sentence of 198 months.
Id.; Dkt. No. 50. If this court credits that 42
months against the 2019 sentence, it comes up with a total
sentence of 154 months.
court will reduce the defendant's sentence to a
determinate sentence of 154 months. By the court's
calculations, this reduction should result in the
defendant's immediate release from custody. If the court
is mistaken, it trusts defense counsel will file the
appropriate motion immediately.
court GRANTS the defendant's Motion to
Reduce Sentence Under the First Step Act. Dkt. No. 92.
court VACATES the second amended judgment
entered on ...