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United States v. Shaw

United States District Court, W.D. Wisconsin

June 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO SHAW, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         Defendant Antonio Shaw was charged in 2002 with one count of possession with intent to distribute five grams or more of cocaine base and later sentenced to prison for a term of 235 months, with five years of supervised release to follow. He now seeks a reduction in his sentence under Section 404 of the First Step Act of 2018. For the reasons that follow, I conclude that defendant is entitled to a reduction in his sentence.

         BACKGROUND

         A. Defendant

         Defendant was arrested in 2002 and charged with one count of possessing more than five grams of cocaine base with the intent to distribute it. The government later filed a four-count superseding indictment against him, alleging that he had possessed both cocaine base (count 1) and cocaine (count 2) and, as a convicted felon, he had knowingly and unlawfully possessed a Ruger 9mm semi-automatic pistol (count 3) and nine Winchester 9mm cartridges (count 4).

         In March 2003, defendant entered a plea of guilty to the initial count of possession with intent to distribute. He was informed that he was subject to a statutory mandatory minimum of five years in prison and a maximum sentence of 40 years. The sentencing judge, the Honorable John Shabaz, found that defendant had possessed 41 grams of cocaine base and 249.15 grams of cocaine and that he was a career offender because he was at least 18 when he committed the offense, the offense was a controlled substance offense and he had at least two prior state felony convictions of either a crime of violence or a controlled substance offense. With a statutory maximum term of imprisonment of 25 years or more, defendant's base offense level was 34. With a three-level reduction for his acceptance of responsibility, his total offense level was 31 and his sentencing guideline range was 188-235 months. He was sentenced on May 2003 to a term of 235 months, with the sentence to run consecutively to his then-undischarged state sentences, with five years of supervised release to follow. He has completed his state sentences, but remains in prison on his federal charge, with a projected release date in September 2020.

         B. Sentencing Legislation

         In 2010, Congress responded to wide-spread criticism of the severity of federal sentencing policies by passing the Fair Sentencing Act. This act reduced the length of the enhanced sentences imposed on persons convicted of crack cocaine offenses and on those convicted of certain violent felonies. Under the new Act, the amount of crack cocaine that would trigger a statutory penalty of five to 40 years was increased from five to 28 grams. The new law applied to persons who had been sentenced for crack cocaine offenses on or after August 3, 2010. It did not apply to defendant or any other offender who had been serving a sentence for one of the covered offenses before that date. Pub. L. 111-220, 124 Stat. 2372 (2010), codified at 21 U.S.C. § 841(b)(1)(A)(iii) (2010).

         More than eight years later, in December 2018, Congress enacted the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, making it possible for persons sentenced before August 3, 2010 for “serious drug felonies” or “serious violent felonies, ” as enumerated in 18 U.S.C. § 924(e) and 18 U.S.C. § 3559(c)(2) or 18 U.S.C. § 113, to seek reduced sentences. The full text of the First Step Act reads as follows:

         Sec. 404. APPLICATION OF FAIR SENTENCING ACT.

(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.
(c) Limitations. - No. court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 Public Law 111-220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the ...

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