United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on a Motion to Withdraw [ECF No.
109], filed by Attorney Thomas N. O'Malley on April 10,
2019. For the reasons set forth below, the Court grants
Attorney O'Malley's Motion to Withdraw.
January 18, 2019, the Defendant filed a Motion for
Appointment of Counsel, requesting the appointment of counsel
to determine his eligibility for a sentence reduction under
recently enacted statutes. (ECF No. 103). The Court granted
the motion in an Order on February 15, 2019 (ECF No. 104),
and on February 18, 2019, Attorney Thomas N. O'Malley
entered his appearance on behalf of the Defendant (ECF No.
105). On March 12, 2019, as directed in the Court's
Order, the United States Probation Office filed an Addendum
to the Presentence Report (ECF No. 108). Subsequently,
Attorney O'Malley filed his Motion to Withdraw on the
basis that the Defendant is not entitled to a reduction in
his sentence. Pursuant to the Court's Order, the
Defendant then had thirty days to file a pro se motion for
reduction of sentence. (ECF No. 104). More than thirty days
have elapsed since Attorney O'Malley filed his Motion to
Withdraw, and the Defendant has not filed a pro se motion for
reduction of sentence.
404 of the First Step Act permits a court to reduce a
defendant's sentence for a crack cocaine offense, but
only if the Court had imposed that sentence before another
statute- the Fair Sentencing Act-lowered the statutory
sentencing range for that crack cocaine offense. First Step
Act, § 404(b). In essence, the First Step Act
retroactively applies the Fair Sentencing Act's lower
statutory sentencing ranges and allows the Court to bring
past sentences into line with the lower ranges. The authority
to reduce a sentence applies only to (1) federal offenses (2)
committed before August 3, 2010, the effective date of the
Fair Sentencing Act, (3) for which the Fair Sentencing Act
changed the statutory penalty range, i.e., certain crack
cocaine offenses. See First Step Act, § 404(a);
see also Dorsey v. United States, 567 U.S. 260, 269
(2012) (noting that 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”).
December 14, 2009, the Defendant was sentenced to 188 months
of imprisonment and eight years of supervised release after
pleading guilty to possession with intent to distribute 5
grams or more of cocaine base, commonly known as crack, a
Schedule II Controlled Substance, in violation of 21 U.S.C.
§ 841(a)(1), charged in the Indictment. (ECF Nos. 12,
42, 43, 68, 69). On December 10, 2010, the Defendant's
sentence was amended to 168 months of imprisonment. (ECF No.
78). On September 24, 2012, the Court found that the
Defendant was not eligible for a reduction in sentence
pursuant to the Fair Sentencing Act because his guideline
range was driven by his status as a career offender. (ECF No.
Defendant's offense took place on or about January 18,
2008. (Indictment, ECF No. 12). The penalty for this
violation is 10 years of imprisonment to life followed by a
term of supervised release of at least 8 years. See
21 U.S.C. § 841(b)(1)(B). Because the Defendant was
convicted of a “covered offense” under Section
404 of the First Step Act, and the offense was committed
prior to August 3, 2010, the new guideline calculations under
the Fair Sentencing Act are applicable. However, for the
reasons stated in the Addendum to the Presentence Report and
the Motion to Withdraw, the Court finds that the amended
sentencing guidelines do not entitle the Defendant to a
reduction in his sentence. Specifically, because the
Defendant's Criminal History Category is VI and his total
offense level is 30, his guideline range remains unchanged at
168 to 210 months of imprisonment. Therefore, Section 404 of
the First Step Act does not support a reduction in the
the execution of sentences and the computation of jail time
is an administrative function under the authority of the
Office of the Attorney General, which has delegated this task
to the BOP. See United States v. Wilson, 503 U.S.
329, 334 (1992). Nothing in the First Step Act transfers that
authority to the courts. See, e.g., 18 U.S.C. §
3642 (setting forth the duties of the Bureau of Prisons as it
pertains to prerelease custody). Accordingly, the Court
cannot discern any basis for the Defendant to receive relief
from the Court under the First Step Act.
reasons stated above, the Court GRANTS the Motion to Withdraw
[ECF No. 109], and the appearance of Attorney Thomas N.