United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. Nugent United States District Judge.
matter comes before the Court upon Defendant, Steven D.
Flowers' Motion to (1) Reduce Sentence Under Section 404
of the First Step Act of 2018 And/Or Amend the Judgment, (2)
Order a New Presentence Report, And/Or (3) Sentence the
Defendant to Time Served, and (4) Decrease The Term of
Supervised Release to No. More than Eight Years. (ECF # 39).
The government filed a Response in Opposition to the motion,
and the Defendant filed a reply to that Response. (ECF #40,
44). The matter is now ready for consideration.
Flowers was sentenced on October 7, 2004, after pleading
guilty to one count of knowingly possessing "with intent
to distribute over 50 grams of a mixture and substance
containing a detectable amount of cocaine base (crack)... in
violation of Title 21 United States Code, Sections 841(a)(1)
and (b)(1)(A)..." (ECF #39, Ex. A). Within the plea
agreement, Mr. Flowers stipulated that his conduct involved
91.6 grams of crack cocaine. (ECF #39, Ex. C ¶ 5). The
parties also recognized in the written plea agreement that
Mr. Flowers would be categorized as a career offender, based
on a prior Ohio controlled substance conviction and a
previous violent offense (aggravated assault). After all
applicable enhancements and adjustments, his total offense
level was 34. He had a statutory sentencing range of twenty
years to life months, and his guideline range was 262-327
months. The Court sentenced him to 262 months, with ten years
of supervised release.
December 21, 2018, the First Step Act of 2018 was signed into
law. Section 404 of the Act provides that a court that
imposed a sentence for a covered offense may, on motion of
the defendant... impose a reduced sentence as if sections two
and three of the Fair Sentencing Act of 2010 were in effect
at the time the covered offense was committed. However, no
court shall entertain a motion made under section 404 if the
sentence was previously imposed or reduced in accordance with
sections two and three of the Fair Sentencing Act, or if
prior request made under this section was denied after a
complete review on the merits. Reductions are not mandatory,
but are left to the discretion of the sentencing judge. See,
Pub. L. No. 115-391, Title IV, § 404, Dec. 21, 2018.
parties agree that if the Fair Sentencing Act had been in
place at the time of Mr. Flowers' original sentencing,
his mandatory minimum sentence would have been reduced from
twenty years to ten years. They also agree that his maximum
sentence would have remained life imprisonment, and he would
have been subject to a mandatory eight years of supervised
release, rather than ten. The government argues that Mr.
Flowers' term of imprisonment should not be reduced,
however, because his sentence was based on the guideline
range that corresponded to his total offense level and
criminal history category, which have not changed, and was
not affected by the mandatory minimum in place at the time.
The Court agrees with this assessment.
the Court accepts Mr. Flowers' position that a defendant
may receive a reduced sentence under the First Step Act,
whether or not his guideline range changed, Mr. Flowers'
sentence is the same sentence that this Court would have
imposed if the Fair Sentencing Act of 2010 were in effect at
the time the covered offense was committed. Under the terms
of the Act, this is the standard the Court is required to
consider. Even though his mandatory minimum sentence was
reduced by the Act, the guideline range applicable to his
case has not changed. Taking into account the new statutory
range, the guideline range, the factors in 18 U.S.C.
§3553(a), and Mr. Flowers' evidence of
post-sentencing mitigation, the Court finds that a sentence
within the guideline range was and remains justified by a
variety of considerations previously set forth in the plea
agreement and discussed at his original sentencing. The Court
did not consider the mandatory minimum statutory sentence in
effect at the time of his original sentencing as a
substantial factor in determining his sentence. Further, the
upper end of the statutory maximum applicable to Mr.
Flowers' case has not changed. Finally, there is no
evidence of anything significant in his post-conviction
behavior that would warrant a change in his original
sentence. Mr. Flowers has apparently taken advantage of some
education courses, but has also been the subject of minor
disciplinary infractions. Therefore, no reduction in his term
of incarceration is warranted.
Flowers also argues that the Court should reconsider the
applicable guideline range, based not upon the provisions of
the First Step Act or Fair Sentencing Act changes, but based
on a change in Ohio law that has occurred since Mr.
Flowers' original sentencing. According to Mr. Flowers
his base offense level was increased from 32 to 37 because he
was deemed to be a career offender. He was considered to be a
career offender based on two prior Ohio convictions. The
prior felony drug conviction was, at the time of his
sentencing, a fourth degree felony which subjected him to a
potential sentence of over a year, making it a predicate
offense for career offender status under Guideline
4B1.1. On September 30, 2011, the Ohio
legislature changed the penalties for this offense, making it
a fifth degree felony with a maximum sentence of twelve
months, which would not satisfy requirements for a career
offender predicate offense under the federal Sentencing
Guidelines. This change was not made retroactive by the Ohio
Court has retroactively applied subsequently recognized
Constitutional rights when determining whether a sentencing
reduction is warranted in a First Step Act case. In doing so,
it has relied on the United State Supreme Court's
position that the determination of retroactivity does not
alter the existence or "temporal scope of a newly
announced [Constitutional] right." Danforth v.
Minnesota, 552 U.S. 264, 271 (2008). In other words it
recognizes that newly announced constitutional rights are
rights guaranteed by the Constitution, and, as such have
existed under the Constitution, even before they were
formally recognized by the courts. The Court found that it
should not perpetuate the application of an unconstitutional
practice when determining a new sentence that complies with
the First Step Act's directives. This reasoning does not
extend, however, to the application of a subsequent state
legislative change that was not constitutionally mandated,
and which the state legislature has chosen not to make
above reasons, this Court DENIES in Part and GRANTS in Part
Mr. Flowers's petition for relief. (#39). Mr. Flowers is
not entitled to a reduction in his term of imprisonment as
his guideline range remains unchanged, and none of the
relevant factors. His supervised release is, however, reduced
from ten years to eight years. All other aspects of his
original sentence remain intact. IT IS SO ORDERED.
 In actuality, Mr. Flowers was
sentenced to only six months for this ...