United States District Court, D. Rhode Island
MEMORANDUM OF DECISION
William E. Smith Chief Judge
First Step Act of 2018 (“the Act”) was enacted
into law on December 21, 2018, with bipartisan support.
See Pub. L. No. 115-391, 132 Stat. 5194. Section 404
of the Act provides that a district court may “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.” Id. § 404(b). Defendant
Ricardo Pierre moved for a reduced sentence under § 404
of the Act. Def.'s Mot. to Reduce Sent.
(“Def.'s Mot.”), ECF No. 54. The Government
opposed the Motion, arguing that Pierre is ineligible for
relief. See Gov't Resp. in Opp'n, ECF No.
57; see also Gov't Supp. Resp. in Opp'n, ECF
No. 60. After hearing argument, the Court issued an Order
granting Pierre's motion and resentencing him to time
served and 6 years of supervised release; this Memorandum of
Decision sets forth the explanation for this holding.
See Order, ECF No. 63; see also Stip.
Reduc. Sent., ECF No. 64.
1984, Congress enacted the Sentencing Reform Act of 1984 (the
“1984 Act”), 98 Stat. 1987, in an effort
“to increase transparency, uniformity, and
proportionality in sentencing.” Dorsey v. United
States, 567 U.S. 260, 265 (2012). The 1984 Act directed
the U.S. Sentencing Commission to promulgate guidelines to
assist federal judges in determining sentences. Id.
(These Guidelines, we have known since 2005, are advisory,
not mandatory. See United States v. Booker, 543 U.S.
220, 245 (2005).)
1986, Congress enacted a drug-specific sentencing statute,
the Anti-Drug Abuse Act of 1986 (“1986 Drug
Act”), 100 Stat. 3207, which set forth mandatory
minimum and maximum penalties for drug offenders, principally
based on the variety and quantity of the drug involved in an
offense. See 21 U.S.C. § 841(b)(1)(A)-(C). The
mandatory minimums set forth in § 841 were far more
punitive for cocaine base (or “crack cocaine”)
offenses than those involving powder cocaine involving the
same quantities. Employing a 100:1 crack-to-powder ratio, the
1986 Drug Act imposed a mandatory minimum penalty of 5
years' imprisonment for possession with intent to
distribute 5 grams of crack cocaine or 500 grams of powder
cocaine, and 10 years' imprisonment for possession with
intent to distribute 50 grams of crack cocaine or 5000 grams
of powder cocaine. See id.; see also Pub.
L. No. 99-570, 100 Stat. 3207-3.
statutes trump the Guidelines. Dorsey, 567 U.S. at
266. Thus, regardless of the Guidelines range assigned to an
individual offender at sentencing, a district judge may only
sentence an offender within the statutorily-provided
mandatory minimum and maximum penalties. Id. at
266-67 (citing 28 U.S.C. § 994(a), (b)(1); USSG §
5G1.1; Neal v. United States, 516 U.S. 284, 289-90,
295 (1996)). Sentencing statutes also drive the Guidelines.
The U.S. Sentencing Commission incorporated the 1986 Drug
Act's mandatory minimums into its first version of the
Guidelines by having them closely track the low end of the
mandatory statutory ranges. Id. at 267.
1986 and 2010, judges, the U.S. Sentencing Commission, law
enforcement officials, and the public at-large decried the
100:1 crack-to-powder cocaine ratios for its abject
unfairness and racial bias. See, e.g., United
States v. Perry, 389 F.Supp.2d 278, 303-08 (D.R.I. 2005)
(recounting at length the history of the crack/powder
disparity in federal sentencing and the U.S. Sentencing
Commission's work on the issue, and concluding that
“it is virtually impossible to find any authority
suggesting a principled basis for the current disparity in
sentences”). The U.S. Sentencing Commission issued four
reports - in 1995, 1997, 2002, and 2007 - criticizing the
disparity because it did not promote uniformity or
proportionality; its suggestion that crack cocaine inflicted
far greater harm than powder cocaine was not scientifically
supported; and its punitive hammer fell disproportionately on
minority communities in America. Dorsey, 567 U.S. at
268-69. The Sentencing Commission, in concert with district
judges and advocates from all sides of the criminal justice
system, asked Congress to pass legislation lowering the
crack-to-powder ratio and for the Sentencing Commission to
have the authority to modify the Guidelines accordingly.
Id. at 269.
(finally) acted in 2010, passing the Fair Sentencing Act of
2010, which took effect on August 3, 2010. 124 Stat. 2372. In
response, the Sentencing Commission promulgated emergency
Guidelines amendments that went into effect on November 1,
2010. See 75 Fed. Reg. 66188-02 (2010); see
also 76 Fed. Reg. 24960-01 (2011). Under the Fair
Sentencing Act of 2010, the new mandatory sentencing range
for possession with the intent to distribute less than 28
grams of crack cocaine is zero to 20 years' imprisonment,
and the sentencing range for possession with the intent to
distribute more than 28 grams but less than 280 grams of
crack cocaine is 5 to 40 years' imprisonment.
See 124 Stat. 2372 (codified at 21 U.S.C. §
841(b)(1)). Thus, the trigger for the mandatory minimum of
five years was increased from 5 grams to 28 grams of crack
more lenient mandatory minimums set forth in the Fair
Sentencing Act applied to any offender who committed a crack
cocaine offense before August 3, 2010, but was not sentenced
until after that date. Dorsey, 567 U.S. at 264. The
more lenient penalties were not, however, retroactive and,
therefore, sentences meted out before August 3, 2010 were
left unchanged. Id. at 277-78. This, of course,
included those Defendants who were sentenced during the
mandatory Guidelines era and before Kimbrough v. United
States, which established that sentencing judges have
the discretion to sentence defendants outside the Guidelines
range for crack cocaine offenses to achieve “a sentence
sufficient, but not greater than necessary.” 552 U.S.
85, 111 (2007) (quotations omitted); see also Spears v.
United States, 555 U.S. 261, 264 (2009) (recognizing
that district courts have the discretion “to vary from
the crack cocaine Guidelines based on policy
disagreement with them, and not simply based on an
individualized determination that they yield an excessive
sentence in a particular case.”). These defendants were
by and large sentenced to significantly longer terms of
imprisonment because judges lacked discretion to vary from
the Guidelines even if the sentences were patently unfair.
The frustration of district judges during this period was
palpable. See, e.g., United States v.
Smith, 359 F.Supp.2d 771, 781-82 (E.D. Wis. 2005)
(Adelman, J.) (applying the § 3553(a) factors and
rejecting the Guidelines' 100:1 ratio in favor of a 20:1
ratio); United States v. Clay, No. 2:03CR73, 2005 WL
1076243, at *6 (E.D. Tenn. May 6, 2005) (Greer, J.) (applying
the § 3553(a) factors and noting the “unjustified
disparity in the 100:1 [quantity] ratio for punishment
between cocaine base or crack and powder cocaine” as
reason for imposing a sentence far below the Guidelines
range); United States v. Castillo, No. 03 CR. 835
(RWS), 2005 WL 1214280, at *5 (S.D.N.Y. May 20, 2005) (Sweet,
J.) (applying the § 3553(a) factors and imposing a
non-Guidelines sentence using a 20:1 crack-to-powder ratio);
Perry, 389 F.Supp.2d at 300-08 (discussing the
“crack vs. powder cocaine controversy”); David M.
Zlotnick, The Future of Federal Sentencing Policy:
Learning Lessons From Republican Judicial Appointees in the
Guidelines Era, 79 U. Colo. L. Rev. 1 (2008). Indeed,
some judges do not think the Fair Sentencing Act of 2010 went
far enough and have adopted a 1:1 crack-to-powder ratio for
sentencing. See, e.g., United States v.
Williams, 788 F.Supp.2d 847, 891-92 (N.D. Iowa 2011)
forward to December 2018: After an unusual but effective
coalition of advocates for reform coalesced around the issue,
Congress passed a comprehensive criminal justice reform bill
titled the First Step Act of 2018. Section 404 of the Act
provides relief, at the discretion of the sentencing court,
to certain federal defendants sentenced for crack cocaine
offenses prior to the Fair Sentencing Act of 2010.
See 132 Stat. 5194.
Ricardo Pierre is one such defendant. On January 10, 2007, a
federal grand jury indicted Ricardo Pierre on two drug
counts. In Count I, Pierre was indicted on possession with
intent to distribute five grams or more of cocaine base, and
in Count II, Pierre was indicted for possession with intent
to distribute powder cocaine. See Indictment, ECF
No. 1. Count I carried a mandatory minimum sentence of 5
years' incarceration. See Attachment to
Indictment, ECF No. 1-2 (citing 21 U.S.C. §§
841(a)(1) and (b)(1)(B)).
Court denied a motion to suppress in February 2007, and
Pierre thereafter lodged a Notice of Intention to Plead
Guilty. On March 7, 2007, the Government filed an Information
charging prior offenses under 21 U.S.C. § 851, enhancing
Pierre's mandatory sentencing range from 5 to 40 years to
10 years to life imprisonment, and enhancing his mandatory
term of supervised release from 4 years to 8 years.
See Information Charging Prior Conviction, ECF No.
Pierre's Guidelines range was 262 to 327 months'
imprisonment at the time of his sentencing, with a Total
Offense Level of 34 and Criminal History Category of VI.
Court accepted Pierre's guilty plea on March 12, 2007.
During the plea colloquy, Pierre admitted to possessing with
the intent to distribute 28.77 grams of cocaine base. Change
of Plea Tr. 10-15, ECF No. 31-1. The U.S. Probation
Presentence Report also reflected this quantity. On July 27,
2007, the Court sentenced Pierre to 188 months'
incarceration as to each count, to run concurrently;
supervised release of 8 years on Count I and 6 years on Count
II, also to run concurrently; and a special assessment of
$200. See Judgment, ECF No. 25. This sentence was 68
months greater than the applicable statutory minimum of 10
years, and 28% below the low end of the Guidelines range.
February 5, 2019, with the assistance of counsel, Defendant
Ricardo Pierre moved to reduce his sentence pursuant to the
First Step Act of 2018. After serving upwards of 144 months
disciplinary-action free, Pierre was incarcerated at the
Houston House, a Bureau of Prisons Residential Reentry
Center, with an expected release date of July 4, 2019.