STIPULATED MOTION AND ORDER TO REDUCE SENTENCE PURSUANT TO SECTION 404 OF THE FIRST STEP ACT, P.L. 115-391

WILLIAM B. SHUBB, District Judge.

Defendant, MARCUS GIPSON, by and through his attorney, Assistant Federal Defender David M. Porter, and plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Assistant U.S. Attorney Jason Hitt, hereby stipulate that the Court should enter an amended judgment reducing Mr. Gipson's sentence to 188 months. The parties further stipulate as follows:

1. In 2009, defendant was convicted of possessing with intent to distribute at least 50 grams of a mixture or substance containing cocaine base. (Dkt. 36.) In its calculation of the applicable guideline range, the PSR concluded defendant was a career offender (PSR ¶ 27), subject to a guideline range of 262 to 327 months. (PSR ¶ 106.) Because the statutory maximum penalty for the offense of conviction was life (PSR ¶ 106), the base offense level under USSG § 4B1.1 was 37. (See PSR ¶ 27.)

2. Defendant was sentenced to a term of imprisonment of 262 months, and a term of supervised release of 120 months. (Dkt. 43.)

3. On December 21, 2018, the First Step Act was enacted. First Step Act of 2018, S. 756, Pub. Law 115-391. Section 404 of the Act states that the sentencing court may, upon motion of the defendant, an attorney for the government, or the court, "impose a reduced sentence as if section 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed."

4. The parties agree that defendant is eligible for a reduction of his sentence under Section 404. Specifically, had sections 2 and 3 of the Fair Sentencing Act of 2010 been in effect at the time the offense was committed, defendant would have been subject to a "term of imprisonment which may not be less than 5 years and not more than 40 years." 21 U.S.C. § 841(b)(1)(B) (2009). Because the maximum statutory penalty for the offense of conviction involving 28 grams or more of cocaine base (but less than 280 grams) is 40 years, the base offense level under USSG § 4B1.1 is 34, resulting (after a three-level reduction for acceptance of responsibility, USSG § 3E1.1) in a guideline range of 188 to 235 months. USSG Ch. 5, Pt. A.

5. Accordingly, the parties request this Court issue the order lodged herewith reducing Mr. Gipson's sentence to 188 months imprisonment and 48 months supervised release, all other terms of the judgment remaining unchanged.

6. The undersigned counsel for defendant affirms that he has discussed this stipulation with defendant and that defendant has authorized counsel to enter into this agreement on his behalf. The undersigned counsel also affirms that, so long as the Court accepts this stipulation, defendant waives his right to be present when the Court reduces his sentence, to any hearing, and to any findings to which he might be entitled. The defendant has so indicated, and counsel joins in that waiver.

ORDER

This matter came before the Court on the stipulated motion of the defendant for reduction of sentence pursuant to the First Step Act, P.L. 115-391.

The parties agree, and the Court finds, that Mr. Gipson is entitled to the benefit of Section 404 of the First Step Act, resulting in an amended guideline range of 188 to 235 months.

IT IS HEREBY ORDERED that the term of imprisonment imposed in December 2009 is reduced to 188 months, and the term of supervised release is reduced to 48 months.

IT IS FURTHER ORDERED that all other terms and provisions of the original judgment remain in effect. The clerk shall forthwith prepare an amended judgment reflecting the above reduction in sentence, and shall serve certified copies of the amended judgment on the United States Bureau of Prisons and the United States Probation Office.

Unless otherwise ordered, Mr. Gipson shall report to the United States Probation Office within seventy-two hours after his release.