United States District Court, D. Massachusetts
MEMORANDUM & ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE
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.
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.
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).
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
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. §
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,
Application of the Fair Sentencing Act
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.
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.
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.
Section 404 of ...