United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION FOR
M. Lawson, United States District Judge.
Swain pleaded guilty to selling more than 50 grams of crack
cocaine and was sentenced on February 24, 2004 to a prison
term of 262 months. He now seeks resentencing under the First
Step Act. The government concedes that Swain is eligible
under that legislation to be resentenced but argues that the
Court should not exercise its discretion to do so. Swain
contends that his conduct since his sentencing favors a
reduction in his sentence, which originally was imposed under
the pre-Booker mandatory-sentencing-guidelines
regime. See United States v. Booker, 543 U.S. 220
(2005). That conduct is relevant, amounting to new
information that may be considered on resentencing.
Therefore, the Court will schedule a resentencing hearing, at
which Swain is entitled to be present (unless he waives his
presence) and request updated information from the Probation
30, 2003, Swain was indicted for possessing with intent to
distribute more than 50 grams of crack cocaine, a crime that
carried a mandatory prison sentence of 10 years and a maximum
sentence of life in prison. 21 U.S.C. §
841(b)(1)(A)(iii) (2002). The government sought to enhance
the penalty under 21 U.S.C. § 851, citing Swain's
prior conviction of possession with intent to deliver
marijuana, which increased the mandatory minimum sentence to
20 years under 21 U.S.C. § 841(b)(1)(A). Swain pleaded
guilty to the charge on November 4, 2003.
probation department found that Swain possessed 152.02 grams
of cocaine base, which resulted in a base offense level of 30
under U.S.S.G. § 2D1.1(c)(3) (2003). But because Swain
had prior convictions for a felony drug offense and a crime
of violence (assault with intent to commit armed robbery), he
was classified as a career offender under U.S.S.G. §
4B1.1, and his net offense level became 34 after an
adjustment for accepting responsibility. Swain's career
offender status put him in criminal history category VI, and
the resulting guideline range was 262 to 327 months
imprisonment. Under the pre-Booker sentencing
regime, the Court imposed a 262-month sentence followed by a
mandatory minimum 10-year period of supervised release.
filed a motion to vacate his sentence under 28 U.S.C. §
2255 on February 22, 2005 and a second such motion (with
permission from the court of appeals) on March 11, 2016, and
the Court denied them both. The Court also denied Swain's
motion to reduce his sentence under 18 U.S.C. §
3582(c)(2), filed after the Sentencing Commission reduced the
guideline range for crack cocaine offenses in Amendment 706,
because Swain was sentenced under the career offender
guidelines, not the crack cocaine guidelines.
of this year, Swain wrote the Court asking for relief under
the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194. The Court appointed counsel, who filed a motion to
reduce the prison sentence on November 12, 2019. The First
Step Act amends several sections of the U.S. Code “to
promote rehabilitation of prisoners and unwind decades of
mass incarceration.” United States v. Brown,
No. 05-00227, __ F.Supp.3d __, 2019 WL 4942051, at *1 (S.D.
Iowa Oct. 8, 2019).
response, the government acknowledges that the Act furnishes
the Court with the authority to resentence Swain, but it
notes that he still qualifies as a career offender, his
sentencing guidelines have not changed, and there is no other
reason to reduce his sentence. Swain argues that although his
guidelines remain unchanged since the Court originally
sentenced him, he has matured and reformed. He also argued
that if the Court sentenced him today, he would be subject to
a reduced mandatory minimum sentence (five years) and a lower
advisory guideline range of 188 to 235 months
imprisonment because Congress amended 21 U.S.C. § 841 so
that Swain's conviction for delivering marijuana would no
longer warrant enhanced statutory penalties under 21 U.S.C.
a district court generally ‘may not modify a term of
imprisonment once it has been imposed,' 18 U.S.C. §
3582(c), a court may do so under certain limited
circumstances, including ‘to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.'” United States v.
Hall, 661 F.3d 320, 322 (6th Cir. 2011) (quoting 18
U.S.C. § 3582(c)(1)(B)). Swain's offense of
conviction is one that the First Step Act addresses. In
section 404, Congress made retroactive the Fair Sentencing
Act's statutory changes for crack cocaine offense
penalties so that they apply to defendants who were sentenced
before August 3, 2010. The First Step Act, therefore, grants
district courts the authority to resentence those offenders.
First Step Act § 404(b) Pub. L. 115-391, 132 Stat. 5194
(Dec. 21, 2018) (“A court that imposed a sentence for a
covered offense may, on motion of the defendant, the Director
of the Bureau of Prisons, the attorney for the Government, or
the court, impose a reduced sentence as if sections 2 and 3
of the Fair Sentencing Act of 2010 (Pub. L. 111-220, 124
Stat. 2372) were in effect at the time the covered offense
ways, this case is similar to United States v.
Hicks, No. 01-20057, 2019 WL 6728361, at *1 (E.D. Mich.
Dec. 11, 2019), where the defendant was convicted of a drug
crime and sentenced under the career offender guidelines. For
instance, it makes no difference to Swain's eligibility
for resentencing under the First Step Act that his sentencing
guidelines would not change or that he was sentenced as a
career offender. United States v. Beamus, __ F.3d
__, 2019 WL 6207955, at *2 (6th Cir. 2019) (“The text
of the First Step Act contains no freestanding exception for
career offenders. Nor would one expect to see such an
exception. It makes retroactive the Fair Sentencing Act's
changes to the statutory range for crack cocaine
offenses.”). However, the Act imposes two limits on
eligibility. “Defendants may not seek a reduction if
their sentence was already modified to comport with the Fair
Sentencing Act . . . [a]nd defendants may not seek
resentencing under the First Step Act if they lost a prior
motion after a ‘complete review of the motion on the
merits.'” Beamus, 2019 WL 6207955, at * 2
(quoting First Step Act of 2018, § 404(c)). Neither
exception applies to Swain.
defendant established eligibility, “[t]he First Step
Act ultimately leaves the choice whether to resentence to the
district court's sound discretion.” Ibid.
(citing First Step Act, Pub. L. 115-391 § 404(b), 132
Stat. 5194 (Dec. 21, 2018); United States v.
Hegwood, 934 F.3d 414, 418 (6th Cir. 2019)).
Hicks, two more legal principles come into play here. The
first is that Swain may point to aspects of his life that
have transpired since his original sentence, which suggest
that he has been rehabilitated. Pepper v. United
States, 562 U.S. 476, 490 (2011) (holding that on
resentencing, “a district court may consider evidence
of a defendant's rehabilitation since his prior
sentencing and  such evidence may, in appropriate cases,
support a downward variance from the advisory Guidelines
range”). The second is that when a court considers
these factors, the proceeding amounts to a resentencing -
rather than a mere correction of sentence under Federal Rule
of Criminal Procedure 35 - at which the defendant is entitled
to be present and allocute. United States v. Flack,
941 F.3d 238, 240 (6th Cir. 2019) (citing Fed. R. Crim. P.
43(a)(3), 32(i)(4)); see also Id. at 241 (noting
that “a district court resentences the defendant . . .
when it revisits the § 3553(a) factors and determines
anew what the sentence should be. A resentencing could thus
result in the same sentence as the one the district court
imposed initially” (citation omitted).
government contends that the Court should deny Swain any
reduction in his sentence out of hand. It notes that he still
is a career offender, his sentencing guidelines remain at 262
to 327 months, and after United States v. Booker,
which held that guidelines are not mandatory, 543 ...