UNITED STATES v. HOLMES (2020)

Gary Delino Holmes appeals the district court's orders denying his motion to reduce his sentence under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194, and denying his motion for reconsideration. Holmes pled guilty in 2007 to conspiracy to possess with intent to distribute in 5 grams or more cocaine base, 500 grams or more of cocaine, and 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846 (2018), and using and carrying a firearm during and in relation to, and in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2018). The district court determined that Holmes qualified as a career offender and sentenced him to 232 months’ imprisonment on the controlled substance offense and a consecutive 60-month sentence on the § 924(c) count.¹

In 2019, Holmes moved for a reduction of sentence pursuant to the First Step Act, requesting that the court impose a reduced sentence on his conspiracy conviction. The district court denied the motion, concluding that Holmes’ conspiracy charge was not a “covered offense” within the meaning of the First Step Act because Holmes was convicted of conspiring to distribute crack cocaine, powder cocaine, and heroin, and the statutory penalties for powder cocaine and heroin offenses were unchanged.

Section 404(b) of the First Step 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 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.” § 404(b). “Section 404(a) defines a ‘covered offense’ as a violation of a federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” United States v. Gravatt, 953 F.3d 258, 260 (4th Cir. 2020).

When the district court considered Holmes’ First Step Act motion, it did not have the benefit of our recent decision in Gravatt, in which we held that a defendant—like Holmes—who “was charged conjunctively with conspiring to distribute both powder cocaine and crack cocaine” was convicted of a covered offense under § 404(a). 953 F.3d at 264. Because Holmes’ sentence involved a covered offense under § 404(a), we vacate the district court's order and remand to allow the district court to address Holmes’ motion on the merits.² See Gravatt, 953 F.3d at 264. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED

FOOTNOTES

1.   The district court subsequently reduced Holmes’ sentence to an aggregate of 220 months: 160 months on the conspiracy conviction and a consecutive 60 months on the firearm conviction.

2.   The district court recognized that it had the authority to reduce Holmes’ sentence if it determined that he was convicted of a “covered offense” and stated that it would decline to do so as a matter of discretion. We take no position on the court's decision at this juncture. The court may, however, choose to revisit that decision.

PER CURIAM:

Vacated and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.