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 Letter [ECF No. 435], filed
by Defendant Jermorris T. Sewell on July 22, 2019, and a
Motion to Withdraw [ECF No. 442], filed by Attorney Thomas N.
O'Malley on October 4, 2019. For the reasons set forth
below, the Court grants Attorney O'Malley's Motion to
Withdraw and denies any request by Defendant for relief under
the First Step Act.
22, 2019, Defendant filed a letter [ECF No. 435], asking for
appointment of counsel because Defendant believes he is
eligible for a reduction in his term of supervised release
under the First Step Act. On July 24, 2019, the Court issued
an Order [ECF No. 436], appointing counsel and directing the
United States Probation Officer to file a report regarding
Defendant's eligibility under the First Step Act. On July
30, 2019, Attorney Thomas N. O'Malley entered his
appearance on behalf of the Defendant [ECF No. 437]. On
August 7, 2019, the United States Probation Officer filed an
Addendum to the Presentence Report [ECF No. 438].
Subsequently, Attorney O'Malley filed the instant Motion
to Withdraw [ECF No. 442] on the basis that Defendant is not
entitled to a reduction in his term of supervised release.
The Court set a deadline of November 5, 2019, for Defendant
to file a pro se motion, if any, and Defendant has not filed
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),
(b); see also Dorsey v. United States, 567 U.S. 260,
269 (2012) (explaining 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”).
Fair Sentencing Act did not provide relief to defendants who
were sentenced prior to its enactment. However, in 2012, the
Supreme Court held in Dorsey that the Fair
Sentencing Act applies to any defendant sentenced on or after
August 3, 2010, for offenses committed before that date.
See Dorsey, 567 U.S. at 273, 282. One limitation on
relief under the First Step Act is that the Court may not
consider a motion 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 . . . .” First Step Act, § 404(c).
Defendant was convicted of a crack cocaine offense that he
committed prior to August 3, 2010, for which the statutory
penalty was modified by section 2 of the Fair Sentencing Act,
Defendant is not entitled to relief under the First Step Act
because his sentence was already imposed in accordance with
the amendments made by Section 2 of the Fair Sentencing Act.
On February 19, 2013, Defendant pled guilty to Count 1 of the
Superseding Indictment [ECF No. 122], pursuant to the terms
of a plea agreement [ECF Nos. 247, 255]. Count 1 of the
Superseding Indictment charged Defendant with conspiracy to
possess 28 grams or more of crack cocaine and 500 grams or
more of cocaine in violation of 21 U.S.C. § 846 and 18
U.S.C. § 2. On March 12, 2013, the Government filed an
Information [ECF No. 271] pursuant to 21 U.S.C. §
851(a)(1), indicating its intent to seek an enhanced sentence
based on Defendant's prior felony drug conviction.
27, 2013, the Court sentenced Defendant to 110 months
imprisonment and 8 years of supervised release. See
ECF No. 329. Based upon the 28 grams or more of crack cocaine
charged in Count 1 of the Superseding Indictment and the
Government's § 851 Notice, the mandatory minimum
period of supervised release for Defendant was 8 years.
See 21 U.S.C. § 841(b)(1)(B). In addition, on
July 21, 2015, Defendant's term of imprisonment was
reduced to 92 months under United States Sentencing
Commission Amendment 782. See Order, ECF No. 419.
Defendant's mandatory minimum period of supervised
release remains 8 years. Finally, Defendant is no longer in
custody of the BOP and is currently on supervised release.
reasons stated above, the Court GRANTS the Motion to Withdraw
[ECF No. 442], and the appearance of Attorney Thomas N.
O'Malley on behalf of Defendant is hereby withdrawn. The
Court DENIES any reduction in Defendant's term of