United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE
Karim Abdullah moved for a reduced sentence pursuant to
§ 404 of the First Step Act of 2018 (“FSA”
or “the Act”). Pub. L. No. 115-391, 132 Stat.
5194; Def.'s Mot. to Reduce Sent. (“Def.'s
Mot.”), ECF No. 47. 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.” Pub. L. No.
115-391, 132 Stat. 5194 § 404(b). The Government
opposed Abdullah's motion, arguing that Abdullah is
ineligible for relief and should be denied a reduction.
See Gov't Resp. in Opp'n, ECF No. 48. The
Court held hearings on June 20 and July 10, 2019 at which the
parties presented argument and evidentiary support. The Court
granted Defendant's motion and imposed a reduced sentence
of 160 months, with 24 months on his supervised release
violation, to be served consecutively in addition to a 3-year
term of supervised release. This sentencing memorandum
explains the Court's reasoning.
February 21, 2008, after Defendant Karim Abdullah waived his
right to be indicted by a grand jury, the Government filed an
information charging Abdullah with being a felon in
possession of a firearm and possession with intent to
distribute 5 grams or more of cocaine base. Abdullah pled
guilty to the two-count information on March 6, 2008, and the
Court sentenced him to 200 months' imprisonment and 5
years' supervised release as to Count I and 120
months' imprisonment and 3 years' supervised release
as to Count II, to be served concurrently. The Court further
sentenced Abdullah to 24 months' imprisonment for a
supervised release violation (see Cr. No.
95-75-07ML) to be served consecutively to the 200 months.
time Abdullah was sentenced, in March 2008, he was subject to
a mandatory minimum of 5 years and a mandatory maximum of 40
years' imprisonment under Count I. The Sentencing
Guidelines prescribed a range of 188 months to 235 months.
The Court's sentence of 200 months was a 6% increase over
the low end of the Guideline range. See Probation
Mem. 2, ECF No. 46.
plea agreement, Abdullah stipulated to distributing 33.47
grams of cocaine base. ECF No. 14. (He was charged in the
indictment with 61.11 grams of cocaine base - 33.10 grams of
cocaine base and $1, 170 of cash converted to cocaine base -
but he pled only to 33.47 grams of cocaine base.) If
Defendant were to be resentenced today, after the passage of
the Fair Sentencing Act, his Guidelines range would be
151-188 months' imprisonment, to be followed by 3
years' supervised release. He would further face a
statutory maximum of twenty years' imprisonment.
See Probation Mem. 2, ECF No. 46.
Abdullah was sentenced in this Court upon conviction of a
“covered offense, ” as defined in § 404(a)
of the First Step Act, and accordingly, he is eligible for a
sentence reduction, subject to this Court's discretion.
See generally United States v. Pierre, 372 F.Supp.3d
17 (D.R.I. 2019).
Scope of Consideration
parties agree that nothing in § 404 “shall be
construed to require a court to reduce any sentence”
and that courts have discretion to grant defendants relief so
long as they are eligible. Pub. L. No. 115-391, 132 Stat.
5194 § 404(b), (c). Where the parties disagree is the
scope of the resentencing under the FSA.
Government argues that the FSA, read in conjunction with 18
U.S.C. § 3582, does not authorize a plenary or de novo
resentencing. See Gov't Resp. in Opp'n 11,
ECF No. 48. The Government further contends that because a
plenary resentencing is not authorized under the FSA,
Defendant may not contest Guidelines issues already ruled
upon at his original sentencing, including Defendant's
career offender status. Id. at 10. Defendant
counters that he does not seek a plenary or de novo
resentencing. See Mem. in Resp. to Gov't
Opp'n 6, ECF No. 52. Instead, Defendant asks that the
Court, in exercising its discretion, take account of the fact
that, were he sentenced today, Abdullah would not have been
sentenced as a career offender. See Mot. for Sent.
Reduction 8, ECF No. 47 (citing Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015) (holding that the
residual clause of the Armed Career Criminal Act is
unconstitutional); United States v. Rose, 896 F.3d
104 (1st Cir. 2018) (holding that Rhode Island assault and
battery with a dangerous weapon does not qualify as a violent
felony under the Armed Career Criminal Act)).
Court agrees with several other courts that have held
“§ 3582(c)(1)(B) [is] the appropriate [procedural]
vehicle for relief” under the FSA and that
“[w]hen a defendant obtains relief under §
3582(c)(1)(B), [it] does not affect the finality of the
original underlying sentence.” United States v.
Sampson, 360 F.Supp.3d 168, 171 (W.D.N.Y. 2019); see
also United States v. Shelton, Cr No. 3:07-329, 2019 WL
1598921, at *3 (D. S.C. Apr. 15, 2019) (“Section 404
must be read together with other existing statutes -
including § 3582(c)”); United States v.
Potts, No. 2:98-cr-14010, 2019 WL 1059837, at *3 (S.D.
Fla. March 6, 2019) (holding that “all other
determinations made at the time of [Defendant's original]
sentencing must remain unchanged”). Section
3582(c)(1)(B) authorizes a sentence modification only
“to the extent otherwise expressly permitted by
statute.” § 3582(c)(1)(B). The pertinent statute
here does not permit a full plenary resentencing or
reconsideration of original sentencing determinations; the
FSA merely permits a court to “impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of
2010 were in effect at the time the covered offense was
committed.” Pub. L. No. 115-391, 132 Stat. 5194 §
404(b); see also Potts, 2019 WL 1059837 at *2;
Sampson, 360 F.Supp.3d 168, 171 (“[A] full
resentencing is neither required nor called for.”);
accord United States v. Davis, No. 07-CR-245S (1),
2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019). In other
words, the Court cannot revisit Defendant's status as a
career offender because such a consideration would go beyond
a simple “recalculation of a defendant's Guidelines
numbers . . . and a possible sentencing reduction
therewith” as required by the FSA. United States v.
McKinney, No. 06-20078-01, 2019 WL 2053998, at *2, (D.
Kan. May 5, 2019) (quoting Davis, 2019 WL 1054554,
addition to the consensus that a court should not engage in a
plenary or de novo resentencing under § 404, most courts
agree that a re-sentencing court should consider the new
statutory range along with the sentencing factors set forth
in 18 U.S.C. § 3553(a), including post-sentence conduct.
See, e.g., United States v. Newton, No.
5:02-CR-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1,
2019); United States v. Powell, 360 F.Supp.3d 134
(N.D.N.Y. 2019); United States v. Martinez, No.
04-CR-48-20, WL 2433660, at *3 (S.D.N.Y. June 11, 2019).
But see United States v. Martin, No. 03-CR-795(BMC),
2019 WL 2289850, at *3-4 (E.D.N.Y. May 29, 2019) (declining
to consider post-sentence conduct and § 3553 factors and
instead looking to what sentence the original sentencing
judge would have imposed). The FSA makes no mention of §
3553 factors, however “it is appropriate to use that
familiar framework to guide the exercise of
discretion.” United States v. Rose, 379
F.Supp.3d 223, 234-35 (S.D.N.Y. 2019). The ...