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.
433], 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.
February 22, 2019, the Defendant filed a letter, requesting
the appointment of counsel to determine his eligibility for a
sentence reduction under recently enacted statutes. (ECF No.
429). On February 27, 2019, the Court entered an Order,
referring this matter to the Northern District of Indiana
Community Federal Defenders to consider representing the
Defendant with respect to any pursuit of a sentence
modification, directing the United States Probation Office to
file a short report to address the applicability of §
404 of the First Step Act of 2018 and the retroactive
application of the Fair Sentencing Act of 2010 in this case,
and setting deadlines. (ECF No. 430). On February 27, 2019,
Attorney Thomas N. O'Malley entered his appearance on
behalf of the Defendant. (ECF No. 431). On March 29, 2019,
the United States Probation Office filed an Addendum to the
Presentence Report (ECF No. 432), advising that the First
Step Act has no impact on the Defendant's statutory
mandatory minimum sentence or his supervised release.
Attorney O'Malley filed the instant Motion to Withdraw on
the basis that the Defendant is not entitled to a reduction
in his sentence under the new guideline calculations.
Pursuant to the Court's Order, the Defendant then had
thirty days to file a pro se motion for reduction of
sentence. (ECF No. 430). 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
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”).
February 20, 2015, the Defendant was sentenced to 121 months
of imprisonment and two years of supervised release after
pleading guilty to conspiracy to distribute and posses with
the intent to distribute 500 grams or more of cocaine and 28
grams or more of cocaine base, commonly known as crack,
Schedule II Controlled Substances, in violation of 21 U.S.C.
§§ 841(a)(1), 846, charged in Count 1 of the
Indictment. (ECF Nos. 1, 90, 102, 413, 414). The
Defendant's offense was committed on or about February
10, 2010, and continuing until on or about January 29, 2011.
(Indictment, Count 1, ECF No. 1). The penalty for this
violation is 5 to 40 years imprisonment followed by a term of
supervised release of at least 4 years. See 21
U.S.C. § 841(b)(1)(B).
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. However, the Defendant is
not entitled to relief under the First Step Act because his
sentence was imposed on February 20, 2015, after the August
10, 2010 effective date of the Fair Sentencing Act, and his
sentence was imposed in accordance with the amendments to 21
U.S.C. § 841(b)(1)(B). See First Step Act
§ 404(c) (“No court shall entertain a motion made
under this section to reduce a sentence if the sentence was
previously imposed . . . in accordance with the amendments
made by sections 2 and 3 of the Fair Sentencing Act of 2010 .
. . .). In addition, the sentence was imposed after the
November 1, 2014 effective date of Amendment 782. In other
words, the Defendant has already received the benefit of both
the Fair Sentencing Act and Amendment 782. The Court notes
that, in his February 22, 2019 letter, the Defendant comments
that the calculation of the amount of crack in the
presentence investigation report, which remains under seal,
“seems to calculate up to a lot.” (ECF No. 429).
However, there were no objections to the calculation of the
amount of crack raised at the time of sentencing.
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. 433], and the appearance of Attorney Thomas N.