United States District Court, D. North Dakota
ORDER DENYING MOTION TO REDUCE SENTENCE (FIRST STEP
D. WELTE, DISTRICT JUDGE UNITED STATES DISTRICT COURT
the Court is Defendant Bobby Joe Demery’s “motion
for relief [p]ursuant to the First Step Act of 2018, in
accordance with Congress’ Statutory Change in section
404 (b) Resentencing, absent a waiver, ” filed on
September 9, 2019. Doc. No. 114. Demery seeks relief based on
Section 404 of the First Step Act of 2018, which made
retroactive the portions of the Fair Sentencing Act of 2010
that lowered statutory penalties for certain offenses
involving crack cocaine. The Government responded in
opposition to the motion on September 19, 2019. Doc. No. 115.
For the reasons below, the motion is denied.
October 10, 2017, Demery pled guilty to Count 3 of a
three-count Superseding Indictment charging him with
Providing a Controlled Substance to Underage Persons from on
or about July 30, 2014, until August 16, 2014, in violation
of 21 U.S.C. § 861(a)(1). Doc. No. 96. On January 29, 2018,
Demery appeared before the Court for sentencing. The Court
adopted the Presentence Investigation Report without change
and determined that the applicable Guideline range was 100 to
120 months’ imprisonment. Doc. No. 112. The count of
conviction did not carry a mandatory minimum sentence.
Id. The Court varied downward and sentenced Demery
to 84 months’ imprisonment. Doc. No. 111.
now seeks a sentence reduction under the First Step
Act’s provisions regarding the application of the Fair
Sentencing Act. In 2010, Congress passed the Fair Sentencing
Act, which was designed to reduce sentencing disparity
between cocaine and crack cocaine offenses. Before the Fair
Sentencing Act’s passage, a violation of 21 U.S.C.
841(a)(1) involving 50 grams or more of a mixture or
substance containing cocaine base (that is, crack cocaine)
carried a mandatory minimum term of imprisonment of 10 years
and a maximum term of life imprisonment. 21 U.S.C.
841(b)(1)(A) (2009). A violation involving 5 grams or more of
a mixture or substance containing crack cocaine carried a
mandatory minimum sentence of 5 years and a maximum sentence
of 40 years. Id. § 841(b)(1)(B). Section 2 of
the Fair Sentencing Act increased these threshold drug
quantities from 50 grams to 280 grams and 5 grams to 28
grams, respectively. 111 Pub. L. No. 120, § 2, 124 Stat.
2372, 2372. In addition, Section 3 of the Fair Sentencing Act
eliminated the mandatory minimum sentence for simple
possession of crack cocaine that had been contained in 21
U.S.C. § 844(a). Id. § 3. The Fair
Sentencing Act’s more lenient penalties for crack
cocaine offenses applied to any defendant sentenced on or
after August 3, 2010, regardless of when the offense
occurred. Dorsey v. United States, 567 U.S. 260,
273, 281–82 (2012).
First Step Act of 2018 introduced a wide range of statutory
provisions and amendments aimed at criminal justice reform.
In Section 404 of the First Step Act, Congress made
retroactive the Fair Sentencing Act’s reduced penalties
for crack cocaine offenses. Under Section 404, the sentencing
court may, upon motion, “impose a reduced sentence as
if sections 2 and 3 of the Fair Sentencing Act . . . were in
effect at the time the covered offense was committed.”
115 Pub. L. No. 391, § 404(b). A “covered
offense” is defined 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 . . .,
that was committed before August 3, 2010.” Id.
§ 404(a). No. court shall entertain a motion made under
Section 404 if the sentence was “previously imposed . .
. in accordance with the amendments made by sections 2 and 3
of the Fair Sentencing Act.” Id. §
is ineligible for relief under Section 404 of the First Step
Act. First, Demery’s offense did not involve crack
cocaine. The Superseding Indictment and Presentence
Investigation Report make clear that Demery’s offense
instead involved providing methamphetamine to a minor.
See Doc. Nos. 66, 100. Second, Demery committed the
offense after August 3, 2010, and accordingly was sentenced
after that date. Lastly, the amendments made by the Fair
Sentencing Act applied to mandatory minimum sentences based
on certain drug quantities, and Demery was not subject to a
mandatory minimum sentence. For these reasons, Demery’s
offense is not a “covered offense” under Section
404 of the First Step Act. Because Demery’s offense is
not a “covered offense, ” the Court is precluded
from reducing his sentence under Section 404 of the
Court has carefully reviewed the entire record, the
parties’ filings, and the relevant case law and
statutory provisions. For the reasons stated above,
Demery’s motion to reduce sentence (Doc. No. 114) is
IS SO ORDERED
 Counts 1 and 2 were dismissed at
sentencing upon motion of the Government. Doc. No.
 The Fair Sentencing Act did not affect
the mandatory minimum and maximum terms of imprisonment for
any other controlled substances.
 Other sentencing reform provisions
found in the First Step Act also would not apply to Demery
because of his offense date and sentencing date. See
115 Pub. L. No. 391, § 401 (applies to “any
offense that was committed before [December 21, 2018], if a
sentence for the offense has not been imposed as of”
that date), § 402 (applies “only to a conviction
entered on or after [December 21, 2018]”), § 403
(applies to “any offense that was ...