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United States v. Concepcion

United States District Court, D. Massachusetts

October 1, 2019

UNITED STATES OF AMERICA,
v.
CARLOS CONCEPCION, Defendant.

          MEMORANDUM & ORDER

          WILLIAM G. YOUNG, DISTRICT JUDGE

         The Court here considers the motion of Carlos Concepcion (“Concepcion”) for resentencing under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (“First Step Act”). Def.’s Mot. Imposition Reduced Sentence Section 404 First Step Act (“Def.’s Mot. Reduced Sentence”), ECF No. 69. The motion requires the Court to consider the reach of section 404 of that Act.

         I. Prior Proceedings

         In 2009, this Court sentenced Concepcion to 228 months of incarceration followed by eight years of supervised release pursuant to section 3553(a) of title 18 of the United States Code. Order, ECF No. 38.

         The Court sentenced Concepcion for the offense of possession with the intent to distribute five or more grams of cocaine base under 21 U.S.C. § 841(a)(1). See id.; Criminal Compl., ECF No. 1. In his plea, Concepcion admitted that he sold 13.8 grams of crack cocaine, a form of cocaine base. Change Plea Tr. 17:1-15, ECF No. 42; see DePierrre v. United States, 564 U.S. 70, 78, 89 (2011).

         The statutory term of incarceration for this offense at the time of his sentencing was between a mandatory five years and forty years. 21 U.S.C. § 841(b)(1)(B)(iii) (2009) (amended 2010); see also Def.’s Mot. Reduced Sentence 3; Govt.’s Resp. Def.’s Mot. Relief First Step Act (“Govt.’s Resp.”) 2, ECF No. 78. The statutory term of incarceration for this offense when the defendant had a prior felony drug conviction, as Concepcion did, was from a mandatory minimum of ten years to life. 21 U.S.C. §§ 841(b)(1)(B), 851; see also Def.’s Mot. Reduced Sentence 3; Govt.’s Resp. 2.

         Concepcion’s designation as a career offender under the Sentencing Guidelines further impacted his sentence. See Concepcion PSR 6; Concepcion Sentencing Tr. 8:7-11, 14:11-14, ECF No. 43. A defendant is a career offender under the Sentencing Guidelines if (1) he “was at least eighteen years old at the time [he] committed the . . . offense of conviction, ” (2) the “offense of conviction is a felony that is either a crime of violence or a controlled substance offense, ” and (3) he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).

         At the time that this Court sentenced him, Concepcion had prior convictions for, among other offenses, a qualifying drug offense, armed robbery, armed carjacking, and assault and battery with a dangerous weapon. Concepcion PSR 12-13. These prior convictions designated him as a career offender. See Id . at 16; Concepcion Sentencing Tr. 8:7-11, 14:11-14. The applicable guideline range for a career offender whose offense of conviction has a maximum sentence of life, which Concepcion’s did in 2009, is 262 to 327 months. See Concepcion Sentencing Tr. 22:13-25; Def.’s Mot. Reduced Sentence 2; Govt.’s Resp. 1, 4, 7.

         II. Application of the Fair Sentencing Act

          Today, after the passage of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), the maximum sentence for Concepcion’s base offense with a prior felony drug conviction is thirty years. See 21 U.S.C. §§ 841(b)(1)(C), 851.

         The applicable guideline range for a career offender whose offense of conviction has a maximum sentence of thirty years is 188 to 235 months. See U.S.S.G. § 4B1.1(a); Def.’s Mot. Reduced Sentence 7; Govt.’s Resp. 6. This range still encompasses Concepcion’s 2009 228-month sentence. If, however, due to intervening developments and jurisprudence, Concepcion is no longer a career offender, his guideline range today would be significantly lower, no longer encompassing his 228-month sentence. See Counseled Reply Govt.’s Opp’n Pro Se Mot. Relief First Step Act, Request Hearing (“Reply”) 8, ECF No. 82.

         III. Analysis

         Concepcion argues that, given the relationship of the sentence imposed to the original and now revised sentencing guidelines, proportionality and fairness warrant resentencing. Def.’s Mot. Reduced Sentence 7. He also proffers a somewhat convoluted argument that, after Amendment 798 to the Sentencing Guidelines, he is no longer a career offender and should be resentenced on that basis. See Reply 7-8, ECF No. 82. The Court addresses these issues in order.

         A. Section 404 of ...


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