United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on a Joint Motion for Imposition
of a Reduced Sentence Pursuant to Section 404 of the First
Step Act [ECF No. 286]. In that Motion, the Defendant and the
Government agree that the Fair Sentencing Act's modified
penalty structure would have applied to Defendant Kevin
Dushaun Wash's crack-cocaine convictions had the Act been
in effect at the time of his sentencing. The U.S. Probation
office concurs. The Joint Motion requests that the Court
reduce the Defendant's sentence, and enter an amended
judgment sentencing him to time served and eight years of
March 19, 1999, the Defendant was charged by way of
indictment with the following: Count 1-Conspiracy to
distribute 50 grams or more of a substance containing a
detectable amount of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and § 846; Count 2-Distribution of 5 or
more grams of crack cocaine in violation of 21 U.S.C. §
841(a)(1); Count 3-Possession with the intent to distribute
50 or more grams of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1); Count 4-Possessing a firearm in relation to
a drug trafficking offense in violation of 18 U.S.C. §
924(c)(1) and § 2.
September 13, 1999, the Government filed notice of a proposed
sentencing enhancement pursuant to 21 U.S.C. § 851,
subjecting the Defendant to increased penalties, including a
mandatory minimum sentence of 240 months. On September 21,
1999, a jury found the Defendant guilty on all four counts.
As a result, he faced a mandatory minimum of 20 years
imprisonment on Count 1, a mandatory minimum of 10 years on
both Counts 2 & 3, and a mandatory minimum of five years
on Count 4 that had to be served consecutively to Counts 1,
2, and 3.
Defendant was determined to be responsible for 223.55 grams
of crack cocaine. Under the then-existing Guidelines, 223.55
grams of crack resulted in a base offense level of 34. The
Defendant's range was increased by two levels for
obstruction of justice resulting in a total offense level of
36 and a guideline range between 210-262 months imprisonment
on Counts 1, 2, and 3. Due to the statutory mandatory minimum
of 240 months on Count 1, the lower end of the guideline
range was increased from 210 to 240 months resulting in a
final guideline range of 240 to 262 months imprisonment on
Counts 1, 2, and 3 with an additional 60 months consecutive
on Count 4.
Defendant was sentenced to 240 months in each of Counts 1, 2,
and 3, to be served concurrently with each other, and 60
months on Count 4, to be served consecutive to Counts 1-3,
for a total sentence of 300 months.
First Step Act permits a court that imposed a sentence for a
“covered offense” to now “impose a reduced
sentence as if sections 2 and 3 of the Fair Sentence Act of
2010” were in effect at the time the “covered
offense” was committed. First Step Act, § 404 (b).
A “covered offense” is “a violation of a
Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act,
” that was committed before August 3, 2010. First Step
Act, § 404 (a). Section 2 of the Fair Sentencing Act
“increased the drug amounts triggering mandatory
minimums for crack trafficking offenses from 5 grams to 28
grams in respect to the 5-year minimum and from 50 grams to
280 grams in respect to the 10-year minimum.”
Dorsey v. United States, 567 U.S. 260, 269 (2012).
parties agree that the Defendant meets all the criteria to be
eligible for a reduction under Section 404 of the First Step
Act. Specifically, his offense was committed before August 3,
2010, and the statutory penalties applicable to his offense
were modified by Section 2 of the Fair Sentencing Act. The
Defendant's statutory range in Counts 1 and 3 has been
reduced from a minimum of 20 years to a minimum of 10 years.
His statutory range in Count 2 has been reduced and the
mandatory minimum has been eliminated. The statutory range
for Count 4 remains the same. Under retroactive amendments to
the United States Sentencing Guidelines, his amended offense
level has been reduced to 30. With a criminal history
category of II, the Defendant's new advisory guideline
range has become 108-135 months imprisonment. However, the
mandatory minimum sentences in Counts 1 and 3 still result in
a mandatory minimum of 120 months plus the additional,
consecutive 60 months in Count 4.
Defendant has been in custody since February 1999.
Accordingly, the parties jointly request that the Court
reduce his sentence to time served. The Government requests
that the Court delay the Defendant's release for a period
of at least ten calendar days from the date of the
Court's order, which will enable the Bureau of Prisons to
take proper administrative steps.
parties also agree that the Defendant is eligible for a
reduction of his term of supervised release. The Court
originally imposed the 10-year mandatory minimum term of
supervised release. The minimum term of supervised release
under the Fair Sentencing Act is 8 years. The parties agree
that all the conditions of supervised release shall remain
Addendum provided by the U.S. Probation Office indicates that
the Defendant has had numerous disciplinary problems during
his term of incarceration, but there are no dates provided
for the incidents, and the Government has not suggested that
the Defendant's record presents a public safety risk that
cannot be addressed through supervision. Additionally, the
Defendant has completed numerous education programs. Having
considered the Joint Motion, and the sentencing factors of