United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
A. SARGUS, JR. UNITED STATES DISTRICT JUDGE
pending before the Court are Defendant Oceanus Perry's
("Defendant") Motion to Reduce Sentence pursuant to
the First Step Act of 2018 (ECF No. 127) and Supplemental
Motion to Reduce Sentence pursuant to the First Step Act of
2018 (ECF No. 129). The Government opposes Defendant's
Motions. (ECF No. 131). For the reasons stated herein,
Defendant's Motions (ECF Nos. 127; 129) are
October 8, 2002, a Grand Jury for the Southern District of
Ohio returned a two-count Indictment charging Defendant with
one count of armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a) and (d) ("Count 1"); and one
count of brandishing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii) ("Count 2"). (See ECF No.
1). On March 24, 2004, after a jury trial, Defendant was
convicted of both offenses as charged in the Indictment.
(See ECF No. 28). Defendant was sentenced to serve a
63-month term of imprisonment on Count 1 and 25 years on
Count 2, to run consecutive to Count 1. (ECF No.
40). The Court issued an Amended Judgment and sentenced
Defendant to 63-months of imprisonment on Count 1 with 22
months of the sentence to run consecutive to a sentence which
was imposed upon him in the Northern District of Ohio, and 25
years on Count 2 to run consecutive to the term imposed on
Count 1. (See ECF Nos. 52, 75).
now moves the Court to reduce his sentence pursuant to the
First Step Act of 2018. (See ECF Nos. 127, 129).
Section 403 of the First Step Act amends 18 U.S.C. §
924(c)(1)(C) "by striking 'second or subsequent
conviction under this subsection' and inserting
'violation of this subsection that occurs after a prior
conviction under this subsection has become final'."
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
§ 403(a) (Dec. 21, 2018) (hereinafter, "First Step
Act"). This amendment applies retroactively in limited
circumstances: "This section, and the amendments made by
this section, shall apply to any offense that was committed
before the date of the enactment of this Act, if a
sentence for the offense has not been imposed as of such date
of enactment," First Step Act, § 403(b)
Defendant was originally sentenced on October 22, 2004 and
judgment was entered on November 23, 2004 (ECF Nos. 39, 40).
The Court twice amended Defendant's judgment, first on
April 11, 2006, and again on December 1, 2008.(ECF Nos. 52; 75).
All these dates were well before December 21, 2018, the date
that the First Step Act was enacted. Nonetheless, Defendant
submits that he is eligible for a sentence reduction for two
reasons: 1) he "is 'actually innocent' of the
300 month term under 18 U.S.C. § 924(c)(1)(C) as it now
reads[;]" and 2) his "case is in line with the
intent of Congress in promulgating the First Step Act."
(ECF No. 129 at 2, 3). Neither argument is persuasive.
whether Defendant is presently "actually innocent"
of the sentencing enhancement is of no matter. Defendant
asserts "that there is no legal impediment to applying
amended criminal statutes to any case that otherwise
qualifies for relief." (ECF No. 129 at 2). Precedent,
however, makes clear, "[g]enerally speaking, once a
court has imposed a sentence, it does not have the authority
to change or modify that sentence unless such authority is
expressly granted by statute." United
States v. Curry, 606 F.3d 323, 326 (6th Cir. 2010)
(emphasis added); see also United States v.
Thompson, 714 F.3d 946, 948 (6th Cir. 2013). As stated
supra, the pertinent amendment applies only "to
any offense that was committed before the date of the
enactment of this Act, if a sentence for the offense has not
been imposed as of such date of enactment." First Step
Act, § 403(b). Here, even applying the date of the
Second Amended Judgment, which was docketed on December 1,
2008, such date occurred over a decade prior to the enactment
of the First Step Act. Thus, the First Step Act does not
expressly provide the Court with the authority to modify
Court next turns to Defendant's second argument.
Defendant asserts that "the clear intent of the First
Act was not merely prospective, but was designed to address
past harms." (ECF No. 129 at 4). In response, the
Government agrees "with Perry that the First Step Act
was enacted to address past harms[;]" it is the
Government's position "that Congress worded the
First Step Act in a manner to address specific harms and
reach particular persons through the law." (ECF No. 131
at 5). The Government submits that, as Defendant was
convicted of armed bank robbery and brandishing a firearm in
commission of bank robbery, Defendant "must acknowledge
that the Act does not apply to his case," (Id).
Court agrees with the Government. As the Sixth Circuit has
stated: "the First Step Act is largely forward looking
and not retroactive." United States v. Wiseman,
932 F.3d 411, 417 (6th Cir. 2019). Had Congress intended
§ 403 to apply retroactively, it would have explicitly
stated so, as it did in other sections of the First Step Act.
Compare First Step Act, § 404(b) (making
retroactive the sentencing reductions in sections 2 and 3 of
the Fair Sentencing Act of 2010), with §
403(b). As such, under the plain language of the §
403(b), Defendant is not eligible to receive a sentence
reduction under the First Step Act as he was sentenced prior
to December 21, 2018, III.
reasons stated herein, Defendant's Motion to Reduce
Sentence pursuant to the First Step Act of 2018 and his
Supplemental Motion to Reduce Sentence pursuant to the First
Step Act of 2018 (ECF Nos. 127; 129) are
IS SO ORDERED.