United States District Court, S.D. Alabama, Northern Division
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on Defendant James Arthur
Rhone's Motion for Sentence Reduction pursuant to the
First Step Act of 2018, the United States' response, and
Rhone's reply (docs. 180, 183, 186). Upon consideration,
and for the reasons set forth herein, the motion is GRANTED
and Rhone's term of imprisonment is reduced to time
1997, Defendant Rhone and co-defendant Dwight W. Clark were
charged in a seven-count superseding indictment for offenses
related to distribution of crack cocaine and powder cocaine.
Rhone was charged with conspiracy to possess with intent to
distribute 50 grams of crack cocaine and more than 10
kilograms of powder cocaine (Count One), possession with
intent to distribute one ounce of crack cocaine (Count Two),
possession with intent to distribute two ounces of crack
cocaine (Count Three), possession with intent to distribute
more than 50 grams of crack cocaine (Count Four), possession
with intent to distribute more than 27 ounces of cocaine
(Count Five), and possession with intent to distribute a
quarter kilogram of cocaine (Count Six). Count Four and Count
Seven, the forfeiture count, were dismissed on the United
first trial was a mistrial. Relevant to this motion, the jury
convicted Rhone of Counts One, Two, Three, Five and Six at
their second trial in October 1997. At sentencing, the Court
determined that Rhone had been involved with the possession
and distribution of at least 12 kilograms of crack cocaine
and 88 kilograms of powder cocaine (doc. 187, p. 13, 14, 27).
At that time, crack cocaine in excess of 1.5 kilograms
established a base offense level of 38, the highest base
offense level under the Sentencing Guidelines. U.S.S.G.
§ 2D1.1 (Nov. 1, 1997) (doc. 187, p. 14).
total offense level was 43 and with a criminal history category of
1, his then mandatory sentencing guidelines range was life
for Counts One and Three, 480 months for Counts Two and Five,
and 240 months for Count Six (doc. 187, p. 27). Rhone was
sentenced to life imprisonment as to Counts One and Three,
480 months concurrent as to Counts Two and Five, and 240
months concurrent as to Count Six (doc. 187, p. 23).
convictions and sentence were affirmed on appeal (doc. 120).
His motion to vacate pursuant to 28 U.S.C. § 2255 was
denied (doc. 136). The denial was affirmed on appeal (doc.
2012, Rhone moved to reduce his sentence based on Amendment
750 to the U.S. Sentencing Guidelines. The motion was denied
(doc. 160). In 2015, Rhone moved to reduce his sentence based
on Amendment 782 to the Guidelines (doc. 173). Rhone's
life sentence as to Counts One and Three and his 480 months
sentence as to Counts Two and Five were reduced to 324
months, concurrent. His sentence as to Count 6 remained 240
months, concurrent. Rhone's estimated release date is now
March 27, 2021.
moves for a reduction of sentence pursuant to Section 404 of
the First Step Act. The Court's authority to apply the
First Step Act is found in 18 U.S.C. § 3582(c)(1)(B),
which, in relevant part, provides: ‘the court may
modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute....” 18 U.S.C.
§ 3582(c)(1)(B). The First Step Act allows the district
court “that imposed a sentence for a covered
offense” to “impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act of 2010”
had been “in effect at the time the covered offense was
committed.” First Step Act of 2018, 115 Pub. L. 391,
§ 404(b), 132 Stat. 5194 (enacted Dec. 21, 2018). A
“covered offense” is defined as “a
violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act, ” that was committed before August
3, 2010. Id. at § 404(a).
Fair Sentencing Act changed the quantity of crack cocaine
necessary to trigger certain statutory mandatory minimum and
maximum sentences. Section 2 amended 21 U.S.C. §
841(b)(1)(A)(iii) to replace the 50 grams or more threshold
with 280 grams or more and also amended 21 U.S.C. §
841(b)(1)(B)(iii) to replace the 5 grams or more threshold
with 28 grams or more.
to Rhone's motion, in Counts One and Three, he was
indicted for offenses involving at least 50 grams of crack
cocaine. At that time, his statutory mandatory sentence was
ten years to life. If the Fair Sentencing Act is applied
“as if” it had been in effect at sentencing, with
no prior felony drug convictions, his statutory mandatory
sentence would be five to forty years.
United States argues that Rhone's motion should be denied
because he is not eligible for a reduction. With respect to
eligibility, the United States relies on the decision in
United States v. Means, wherein a panel of the
Eleventh Circuit used the five kilograms of cocaine
attributed to Means as relevant conduct to find that he was
not eligible for consideration under the First Step Act. - -
- Fed.Appx. - - -, 2019 WL 4302941 (11th Cir. Sept. 11, 2019)
(“The First Step Act's changes to the triggering
quantities of cocaine for the imposition of the mandatory
sentencing scheme under § 841 do not impact Means's
sentence because he was attributed with over five kilograms
of cocaine, far in excess of the new 280-gram triggering
amount.”) Id. at * 2. Parsing Section 404(a)
of the First Step Act, the United States argues that because
Rhone was held accountable for more than 1.5 kilograms of
crack cocaine, his mandatory sentencing scheme is likewise
not impacted, and therefore, he is not eligible for a
reduction. (Doc. 183) The United States asks the Court to
revisit its prior determinations that the amount of crack
cocaine charged in the Indictment determines whether a
defendant is eligible for relief.
responds that the Means decision may be
distinguished from the case before the Court and that the
reasoning was flawed. Rhone argues that Means was proceeding
pro se and erroneously relied upon 18 U.S.C. §
3582(c)(2) (and consequently so did the Eleventh Circuit),
instead of 18 U.S.C. § 3582(c)(1)(B). Rhone also argues
that Means made other procedural and substantive briefing
errors, which resulted in no adversarial challenge to
eligibility, and consequently the adoption of the United