JED S. RAKOFF, District Judge.
On March 14, 2007, a jury convicted defendant Nelson Martinez of one count of conspiracy to distribute and possess with intent to distribute 50 grams and more of crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A), 846. ECF No. 379 (superseding indictment); ECF No. 503 (judgment). On June 28, 2007, this Court sentenced Martinez to 360 months' imprisonment, ECF No. 503, and on December 4, 2009, the Court reduced Martinez's sentence to 324 months' imprisonment based on his positive behavior in prison, ECF No. 972, at 2. The Court subsequently made a formal finding that Martinez was responsible for selling over 150 kilograms of crack — far more than the 50 grams charged in his indictment. ECF No. 1151, at 2.
On March 12, 2019, Martinez moved for a further sentence reduction, pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. ECF No. 1197. Martinez argued that he was eligible for a sentence reduction under section 404 of the Act, and he asked the Court to reduce his sentence to 240 months' imprisonment. ECF No. 1197. The Government opposed, arguing, first, that Martinez was ineligible for a sentence reduction under section 404, and second, that even if Martinez were eligible, the Court should exercise its discretion to deny the motion. ECF No. 1205.
After receiving full briefing from the parties, the Court held oral argument on May 30, 2019. At argument, the Court ruled that Martinez was eligible for a sentence reduction. Thereupon, with the agreement of both sides (Martinez being present), the Court proceeded with re-sentencing and reduced Martinez's sentence to 288 months' imprisonment.
In 2010, Congress passed the Fair Sentencing Act, which, inter alia, modified the statutory penalties for certain drug offenses. Pub. L. No. 111-220, 124 Stat. 2372. As relevant here, section 2 of the Fair Sentencing Act increased from 50 grams to 280 grams the amount of crack required to trigger the minimum and maximum sentences imposed by 21 U.S.C. § 841(b)(1)(A). Section 2 also increased from 5 grams to 28 grams the amount of crack required to trigger the minimum and maximum sentences imposed by § 841(b)(1)(B).
Although these provisions of the Fair Sentencing Act have always applied to offenders sentenced after the statute took effect,
Martinez argues that the plain language of section 404 makes him eligible for resentencing. ECF No. 1197, at 3. When Martinez was sentenced in 2007, the 50 grams charged in his indictment triggered a 10-year mandatory minimum and a life mandatory maximum under § 841(b)(1)(A). Martinez argues that section 2 of the Fair Sentencing Act "modified" "the statutory penalties" for his "violation of a Federal criminal statute" by changing from 50 grams to 280 grams the amount of crack required to trigger § 841(b)(1)(A)'s minimum and maximum. Thus, after the passage of the Fair Sentencing Act, a conviction for 50 grams of crack (absent aggravating circumstances not relevant here) triggers "only" a 5-year mandatory minimum and 40-year mandatory maximum.
The Government responds that the Fair Sentencing Act did not modify the statutory penalties for Martinez's violation because Martinez's violation is not the 50 grams charged in his indictment. ECF No. 1205, at 6. Instead, the Government argues, the violation is the 150 kilograms for which the Court ultimately found Martinez responsible.
This Court agrees with Martinez, and it concludes that the phrase "violation of a Federal criminal statute" refers to the amount charged in the indictment upon which Martinez was convicted, not the amount attributed to him by judicial finding. This conclusion follows not only from the most natural reading of the text, but also from the Second Circuit's decision in
In the instant case, the Government argues that
At oral argument, the Government suggested that
Moreover, the conclusion that Martinez's violation is a "covered offense" — and that he is therefore eligible for a sentence reduction under section 404 — is supported by the decisions of nearly every court to address the issue.
Having explained why Martinez is eligible for a sentence reduction under section 404, the Court now turns to its decision to reduce Martinez's sentence to 288 months' imprisonment. As noted, section 404(b) of the First Step Act authorizes the Court to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." And for the reasons discussed above, if section 2 of the Fair Sentencing Act had been in effect at the time Martinez committed his covered offense, the 50 grams charged in his indictment would have triggered the 5-year mandatory minimum and 40-year mandatory maximum imposed by § 841(b)(1)(B). Such a substantial change in the minimum and maximum warrant some relief for Martinez, who was sentenced in the more punitive context of a 10-year minimum and life maximum.
In addition, the parties agreed at oral argument that the Court — if it found Martinez eligible for a sentence reduction — could consider all the factors in 18 U.S.C. § 3553(a), including Martinez's post-sentencing conduct.
As a final point, the Government has requested that the Court specify in the instant Order that Martinez's motion is brought under 18 U.S.C. § 3582(c)(1)(B). ECF No. 1205, at 8. As relevant here, § 3582(c)(1)(B) provides that a "court may not modify a term of imprisonment once it has been imposed except that ... the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." The Court agrees with the Government that the First Step Act provides such "express[] permi[ssion]" and that section 404 motions are most naturally interpreted as motions brought under § 3582(c)(1)(B).
In so holding, the Court acknowledges that there is some disagreement among lower courts as to whether section 404 motions are brought under § 3582(c)(1)(B) or § 3582(c)(2).
For the foregoing reasons, the Court, on May 30, 2019, found that Martinez was eligible for a sentence reduction and reduced Martinez's sentence to 288 months' imprisonment.