United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SENTENCE
Brock Hornby United States District Judge.
March 12, 2008, I sentenced Michael Lovely to 210 months in
prison followed by 5 years of supervised release on two
counts of drug trafficking (concurrently). See J. at
2 (ECF No. 119). He now has moved under the First Step Act of
2018, Pub. L. 115-135, to reduce his sentence to 168 months
in prison followed by 3 years of supervised release
(concurrently). Mot. at 1 (ECF No. 213). The government
resists the motion. See Opp'n to Def.'s
First Step Act Mot. at 1 (ECF No. 217).
2008, I sentenced Lovely as a career offender. J. at 2. Under
the Guidelines then in effect, his Offense Level was
determined by the “offense statutory maximum” for
his offense of conviction. U.S.S.G. §§ 4B1.1(a),
(b). Lovely pleaded guilty to an indictment in which Count
One charged conspiracy to distribute or possess with intent
to distribute 5 or more grams of cocaine base and Count Two
charged actual possession with intent to distribute the same
quantity. See Superseding Indictment (ECF No. 23) at
1-2. Because he pleaded guilty to an indictment that charged
5 grams or more, the statutory maximum imprisonment term was
40 years and a 5-year minimum term of supervised release
applied. 21 U.S.C. § 841(b)(1)(B). As a result of that
statutory penalty, under the career offender provision his
offense level was 34 and his Guideline range was 210 to 262
First Step Act of 2018 allows me to impose a reduced sentence
“as if sections 2 and 3 of the Fair Sentencing Act of
2010 were in effect at the time the covered offense was
committed.” Section 404(b). Section 2 of the Fair
Sentencing Act reduced the statutory penalties for certain
drug trafficking violations from what they had been in 2008.
Specifically, 5 grams or more of cocaine base was no longer
sufficient to generate the 40-year statutory maximum; instead
28 grams or more of cocaine base was required. Lovely argues
that, given his indictment charging 5 grams or more, the
lower 841(b)(1)(C) penalty of 20 years maximum applies to him
and results in a 2-level career offender guideline reduction.
With nothing else changed, his lower guideline range would be
168 to 210 months and 3 years of supervised
dispute between Lovely and the government is whether I should
look at the drug quantity language of the indictment or the
drug quantity later established at sentencing. The latter is
much higher, well in excess of the 28 grams, and would
support the original offense level even under the Fair
growing body of sentencing court caselaw is addressing this
issue, and the parties have cited several decisions. I find
persuasive the opinion issued earlier this month by my
colleague in the United States District Court for the
District of Rhode Island, Judge William Smith. United
States v. Pierre, 2019 WL 1495123 (D.R.I. Apr. 5, 2019).
Judge Smith recognized the reasonable and plausible arguments
on both sides of the controversy, but concluded:
the sentencing court should look to whether the offense of
conviction was modified by the Fair Sentencing Act of 2010 to
determine eligibility; it should refrain from delving into
the particulars of the record to determine how this specific
defendant committed his or her offense of conviction, and how
those facts would have hypothetically affected the charges
brought against the defendant under the new statutory regime.
Id. at *5. I find it unnecessary to repeat the sound
reasoning Judge Smith gives for reaching this
conclusion. Instead, I simply adopt that reasoning as
my own and follow it.
recognize that I have discretion to deny relief, but after
reading the Revised Presentence Report that Probation
prepared on March 6, 2019, I deny the government's
request that I do so.
defendant's motion is Granted. I impose
a reduced sentence of 168 months in prison and 3 years of
supervised release on both counts concurrently.
 That was the Offense Level for an
“Offense Statutory Maximum” of 25 years ...