United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
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.
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).
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
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)
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:
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 ...