UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case Number: 09-20129 

 Honorable David M. Lawson 

v. 

TOMMY JACKSON, 

 Defendant. 

____________________________________/ 

OPINION AND ORDER GRANTING IN PART MOTION TO REDUCE SENTENCE

 Defendant Tommy Jackson seeks a reduction of his 180-month prison sentence imposed 

in 2009 for drug and firearm convictions. One count of conviction was for crack cocaine delivery 

— five grams or more — the penalties for which were reduced by the Fair Sentencing Act of 2010, 

and the reduction was made retroactive by the First Step Act of 2018. Jackson’s sentence also 

included custody terms for three other crimes not addressed by that legislation, and because he is 

eligible for a sentence reduction under the First Step Act, he asks the Court to consider a reduction 

of his total sentence. The government resists that request, pointing out that Jackson is not entitled 

to a plenary resentencing. The government is correct on that point. But it is not dispositive, 

because the Court has discretion to reduce Jackson’s entire sentence when one component includes 

a penalty for a covered offense. Exercising that discretion, however, will require additional 

information. Therefore, the Court will grant the motion in part and order the Probation Department 

to prepare an updated presentence report. 

I. 

 Jackson pleaded guilty to possession with intent to distribute more than five grams of 

cocaine base in violation of 21 U.S.C. § 841(a) (Count 1), possession with intent to distribute fewer 

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than 100 grams of heroin in violation of 21 U.S.C. § 841(a)(1) (Count 2), possession of a firearm 

as a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 3), and possession of a firearm 

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 4). He was 

sentenced on September 22, 2009 to concurrent 120-month prison terms for Counts 1 through 3 

and a consecutive 60-month term for the section 924(c) violation, for a total custody sentence of 

180 months. 

 Jackson previously had been convicted in state court of possession of fewer than 25 grams 

of cocaine, for which he had received a probationary sentence. That previous conviction triggered 

a sentencing enhancement on the crack charge, which normally carried a five-year mandatory 

minimum sentence, increasing the mandatory minimum to ten years (120 months). That previous 

conviction, taken together with the rest of Jackson’s criminal record, also qualified him as a career 

offender under U.S.S.G. § 4B1.1. As a career offender, Jackson’s advisory sentencing guideline 

range was 262 to 327 months. 

 The Court varied downward to Count 1’s mandatory minimum sentence — 120 months —

because “the defendant’s crimes were motivated primarily by his drug addiction,” he posed only 

“a moderate danger to others,” and “[a] sentence within the career offender guidelines would not 

[have] achieve[d] any further rehabilitative or retributive purpose and would [have] amount[ed] to 

needless expenditure of government resources.” Jackson did not appeal his sentence, and the Court 

denied a subsequent motion to vacate the sentence under 28 U.S.C. § 2255. 

 On November 19, 2019, Jackson filed a motion for a reduced sentence under section 404 

of the First Step Act, asking for plenary resentencing. Jackson points out that since he was 

convicted, the law changed in three ways that could potentially impact his sentence. First, 

Congress passed the First Step Act of 2018; section 404 of that Act made retroactive the Fair 

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Sentencing Act’s provisions that increased the amount of crack necessary to trigger mandatory 

minimum sentences, so that mandatory minimum would no longer apply. Second, section 401 of 

the First Step Act changed the type of predicate drug offense that would increase the penalties for 

crack convictions in a procedure under 21 U.S.C. § 851, defining a qualifying “serious drug 

felony” as a drug felony for which the defendant served over one year in prison. Finally, in United 

States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc), the Sixth Circuit held that attempted drug 

deliveries do not constitute controlled substance violations that trigger the career offender 

sentencing guideline enhancement. Jackson argues that if he were to be sentenced today, he would 

not be considered a career offender with a “serious drug felony,” and his advisory sentencing 

guideline range would be 106 to 117 months, plus the consecutive sentence for the section 924(c) 

conviction. He says that because his crack conviction is a qualifying offense under the First Step 

Act, the Court ought to take a second look and the whole sentence “package.” 

II. 

 “Although a district court generally ‘may not modify a term of imprisonment once it has 

been imposed,’ 18 U.S.C. § 3582(c), a court may do so under certain limited circumstances, 

including ‘to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules 

of Criminal Procedure.’” United States v. Hall, 661 F.3d 320, 322 (6th Cir. 2011) (quoting 18 

U.S.C. § 3582(c)(1)(B)). Jackson’s offense of conviction in Count 1 is one that Congress has 

addressed “by statute.” In section 2 of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 

2372 (2010), Congress increased the quantity of crack necessary to trigger a five-year mandatory 

minimum sentence (or ten-year sentence for individuals, like Jackson, who had a prior felony drug 

offense) from five grams to 28 grams. Dorsey v. United States, 567 U.S. 260, 269 (2012); Pub. L. 

111-220, 124 Stat. 2372 § 2(a)(2). Then, in 2018 Congress passed the First Step Act; in Section 

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404 of the Act, the Fair Sentencing Act’s statutory changes for crack cocaine offenses were made 

retroactive to defendants who were sentenced before August 3, 2010. United States v. Boulding, 

960 F.3d 774, 778 (6th Cir. 2020) (citing the First Step Act of 2018, Pub. L. No. 115-391, § 404, 

132 Stat. 5194 (2018)). 

 “[E]ligibility for resentencing under the First Step Act turns on the statute of conviction 

alone,” regardless of the drug quantity that actually may have been involved in the offense. Id. at 

781. And “[i]t makes no difference to [a defendant’s] eligibility for resentencing under the First 

Step Act that his sentencing guidelines have not changed or that he was sentenced as a career 

offender.” United States v. Hicks, 427 F. Supp. 3d 930, 932 (E.D. Mich. 2019) (citing United 

States v. Beamus, 943 F.3d 789, 791 (6th Cir. 2019)). 

 The First Step Act imposes only two limits on eligibility. “Defendants may not seek a 

reduction if their sentence was already modified to comport with the Fair Sentencing Act. . . . And 

defendants may not seek resentencing under the First Step Act if they lost a prior motion after a 

‘complete review of the motion on the merits.’” Beamus, 943 F.3d at 791 (quoting First Step Act 

of 2018, § 404(c), 132 Stat. at 5222). 

 However, although a defendant may be eligible for relief under the First Step Act, “[a] 

district court . . . is not ‘require[d] . . . to reduce any sentence’ pursuant to section 404(b).” United 

States v. Foreman, 958 F.3d 506, 510 (6th Cir. 2020) (quoting First Step Act §§ 404(b), (c)). 

“Instead, the choice of whether to grant such relief to an otherwise eligible defendant is left to ‘the 

district court’s sound discretion.’” Ibid. (citing Beamus, 943 F.3d at 792). 

 Jackson is eligible for resentencing under Section 404 of the First Step Act because the 

Court imposed a sentence on Jackson for a “covered offense” on Count 1. Jackson pleaded guilty 

to violating 21 U.S.C. § 841(b)(1)(B) by possessing with intent to distribute more than five grams 

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of crack cocaine. At the time, he faced penalties of at least ten years and up to life imprisonment 

due to his prior conviction of a felony drug offense. The Court imposed the mandatory minimum 

sentence — 120 months; the Fair Sentencing Act eliminated the mandatory sentence for amounts 

under 28 grams. Dorsey, 567 U.S. at 269. Applying the Fair Sentencing Act to Jackson’s violation 

today would result in a potential statutory sentencing range of 0 to 30 years imprisonment. And 

because the sentence has not previously been reduced under the Fair Sentencing Act, and Jackson 

has not filed a previous motion under the Act, the Court may impose a reduced sentence in this 

case. First Step Act, §404, 132 Stat. at 5222. 

 The government, conceding that Jackson is eligible for resentencing on Count 1, argues 

that the Court should decline to exercise its discretion and leave Jackson’s sentence as is. Jackson 

is also subject to concurrent ten-year sentences on Counts Two and Four, which were unaffected 

by the First Step Act because they did not involve crack cocaine. The government contends that 

the First Step Act does not authorize plenary resentencing. 

 The Sixth Circuit plainly has held that the First Step Act does not require plenary 

resentencing. United States v. Alexander, 951 F.3d 706, 708 (6th Cir. 2019). That is because the 

court reads the sentence adjustments authorized by the First Step Act as sentence “reductions” 

authorized by 18 U.S.C. § 3582(c), not “resentencings.” United States v. Smith, 958 F.3d 494, 498 

(6th Cir. 2020) (citing Federal Rule of Criminal Procedure 43, which requires that a defendant 

must be present at sentencing, but states that he need not be present where the proceeding “involves 

the correction or reduction of sentence under . . . 18 U.S.C. § 3582(c)”); see also Alexander, 951 

F.3d at 708. 

 The First Step Act left the decision whether to grant relief, and the extent of such relief, 

“to the district court’s sound discretion.” Beamus, 943 F.3d at 792 (citing the First Step Act of 

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2018, § 404(b); United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019)). The court found it 

“hard to imagine that Congress not only created an exception to the rule of finality but also, without 

expressly saying so, mandated a far broader plenary resentencing requirement.” Foreman, 958 

F.3d at 512; see also Pepper v. United States, 562 U.S. 476, 490 (2011) (explaining breadth of 

resentencing following a general remand). But the court of appeals in this circuit has never held 

that the First Step Act prohibits plenary resentencing, that is, reducing an entire sentence that 

includes both covered and non-covered offenses. And it has acknowledged that “[i]n exercising 

. . . discretion, a judge may take stock of several considerations,” noting that “[h]ow . . . those 

considerations play out . . . [is] a question only the district court can answer.” Beamus, 943 F.3d 

at 792. 

 In Hegwood, the Fifth Circuit rejected the defendant’s argument that the district court erred 

when it did not recalculate his sentencing guidelines as a non-career offender when reducing his 

sentence under the First Step Act, “[c]oncluding that the First Step Act does not allow plenary 

resentencing.” Hegwood, 934 F.3d at 415. In reaching that conclusion, the court drew a direct 

analogy to Dillon v. United States, 560 U.S. 817 (2010), Hegwood, 934 F.3d at 418, as does the 

government here. In Dillon the Supreme Court considered whether a district court, when ruling 

on a defendant’s motion to reduce his pre-Booker sentence under 18 U.S.C. § 3582(c)(2) based on 

a retroactive sentencing range reduction, could vary below the new guideline range. The Court 

held that a district court could not do so because the reduction authorized by section 3582(c)(2) 

must be “consistent with the applicable policy statements issued by the Sentencing Commission.” 

Dillon, 560 U.S. at 826 (quoting 18 U.S.C. § 3582(c)(2)). The policy statement was found at 

U.S.S.G. § 1B1.10, which imposed explicit limits on the district court’s discretion when reducing 

a sentence under that statute. Id. at 827. One is that “the court shall substitute only the [rangeCase 2:09-cr-20129-DML-PJK ECF No. 48, PageID.176 Filed 01/25/21 Page 6 of 11
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lowering] amendments . . . for the corresponding guideline provisions that were applied when the 

defendant was sentenced and shall leave all other guideline application decisions unaffected.” 

Ibid. (quoting U.S.S.G. § 1B1.10(b)(1)). Another is that the district court “may ‘not reduce the 

defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is less than the 

minimum of the amended guideline range’ produced by the substitution.” Ibid. (quoting U.S.S.G. 

§ 1B1.10(b)(2)(A)). Although the statute directed the sentencing court to “consider[] the factors 

set forth in section 3553(a),” the Dillon court held that this reference “is appropriate only at the 

second step of this circumscribed inquiry,” and therefore “it cannot serve to transform the 

proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Ibid.

 The analogy to Dillon breaks down when one considers that sentence reductions under the 

First Step Act are authorized by section 3582(c)(1)(B), not section 3582(c)(2). See United States 

v. Allen, 956 F.3d 355, 357 (6th Cir. 2020) (holding that “[s]ection 3582(c)(1)(B) is . . . not itself 

a source of authority for sentence modifications [under the First Step Act], nor does it delineate 

the scope of what the district court should consider when resentencing is authorized by another 

provision.”) (quoting United States v. Rose, 379 F. Supp. 3d 223, 232 (S.D.N.Y. 2019)). The 

former section does not include a contingency that requires sentence reductions to be consistent 

with the Sentencing Commission’s policy statements. And therefore this authority does not come 

bound by the limitations discussed by the Dillon court. 

 The better view is that when considering a sentence reduction under section 3582(c)(1)(B), 

the court may exercise discretion to reduce the total sentence when a covered offense is involved, 

informed by all relevant factors. Id. at 357 (holding that “courts may consider all relevant factors 

when determining whether to reduce a defendant’s sentence under § 404” including those under 

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section 3553(a)). That instruction is inconsistent with the idea that the First Step Act prohibits

plenary resentencing. 

 Other courts have held that district courts may, but need not, reduce a sentence that was 

imposed on both covered and non-covered offenses. In United States v. Hudson, 967 F.3d 605 

(7th Cir. 2020), the court held that the district court erred when it “determined that the First Step 

Act did not permit [it] to reduce [the defendant’s] sentence for a non-covered offense that was a 

component of an aggregate sentence including covered offenses.” Id. at 610. The court held that 

once it is determined that a defendant is eligible for relief because he was sentenced for an offense 

covered by the First Step Act, “the text of the First Step Act requires no more for a court to consider 

whether it should exercise its discretion to reduce a single, aggregate sentence that includes 

covered and non-covered offenses.” Ibid. The court found significance in Congress’s decision to 

impose only two limitations — and no more — on a defendant’s right to seek relief under the Act: 

that the sentence already included the modifications contemplated by the Fair Sentencing Act, and 

that the defendant already lost a similar motion on the merits. The court reasoned that “[i]f 

Congress intended the Act not to apply when a covered offense is grouped with a non-covered 

offense, it could have included that language. It did not.” Ibid.; see also ibid. (“Excluding noncovered offenses from the ambit of First Step Act consideration would, in effect, impose an extratextual limitation on the Act’s applicability.”). 

 Ignoring non-covered offenses that are part of an aggregate sentence would not “comport[] 

with the manner in which sentences are imposed.” Id. at 611. The court pointed out that 

“[m]ultiple terms of imprisonment are treated under federal law as a single, aggregate term of 

imprisonment.” Ibid. (citing18 U.S.C. § 3584(c)). 

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 The Fourth Circuit came to the same conclusion in a slightly different context, holding that 

a defendant is eligible for relief under the First Step Act when his sentence was for “a multi-object 

conspiracy where the penalties of one object (possession of crack cocaine) were modified by the 

Fair Sentencing Act, while the penalties of the other (powder cocaine) were not reduced.” United 

States v. Gravatt, 953 F.3d 258, 262 (4th Cir. 2020). 

 The government’s argument confounds the question of eligibility for relief with whether 

the defendant ought to receive relief. Jackson is not entitled to relief, because “nothing in section 

[404 of the First Step Act] is to be construed to require a court to reduce any sentence.” First Step 

Act § 404(c). He is eligible for relief because his sentence includes punishment for a covered 

offense. And “[o]nce past that threshold, a court may consider a defendant’s request for a reduced 

sentence, including for non-covered offenses that are grouped with the covered offenses to produce 

the aggregate sentence.” Hudson, 967 F.3d at 611. 

 Under all the relevant circumstances, Jackson should receive some measure of relief on his 

aggregate sentence. Consider that one purpose of the First Step Act is “to promote rehabilitation 

of prisoners and unwind decades of mass incarceration.” United States v. Brown, 411 F. Supp. 3d 

446, 448 (S.D. Iowa 2019). Had Jackson been sentenced for his offense today, he would not be 

facing the same penalties for several reasons. 

 First, as noted above, the quantity of crack cocaine required to trigger the mandatory 

minimum sentence under 21 U.S.C. § 841(b)(1)(B) has been increased to a level greater than the 

amount Jackson possessed. Second, section 401 of the First Step Act amended 21 U.S.C. § 

841(b)(1)(A) and (B) so as to require a prior conviction for a “serious drug felony” to enhance the 

penalties prescribed in those sections. Jackson’s 1993 drug offense no longer qualifies, as he did 

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not serve over one year in prison for that crime. See First Step Act, §§ 401(a)(1), (a)(2)(A)(i). 

Section 401, however, applies prospectively only. 

 Third, Jackson would not be considered a career offender. He was deemed a career 

offender when he was sentenced in 2009 based on a 2006 cocaine delivery conviction for which 

he was sentenced to 244 days in jail, and a 2005 attempted controlled substance delivery conviction 

for which he was sentenced to two years of probation with six months in jail. However, in United 

States v. Havis, the court of appeals held that “attempted” controlled substance offenses cannot be 

considered predicate offenses under the career offender enhancements in the Sentencing 

Guidelines because attempts are not found in the textual definitions; they were added by the 

commentary, which had not been subject to congressional review. 927 F.3d 386-87. 

 All of this makes a difference. Jackson asserts that if he had only one prior controlled 

substance offense conviction under the Sentencing Guidelines, his net offense level would be 21 

(base level of 20 under section 2K2.1(b)(1)(A); three-level reduction for acceptance of 

responsibility under section 3E1.1; two-level increase for three firearms under section 

2K2.1(b)(1)(A); two-level increase for a stolen firearm under section 2K2.1(b)(4)(A)), yielding a 

sentencing range of 46 to 57 months, plus a consecutive 60 months for the section 924(c) offense. 

The resulting guideline range would be 106 to 117 months. Although that assessment may be 

generous, considering that some of the provisions Jackson relies on have not been made 

retroactive, it does call into question the propriety of his 180-month sentence. Jackson already has 

served 136 months. 

 The Court needs updated information to determine the extent of the relief Jackson should 

be afforded. The Probation Department will be able to furnish an updated report promptly. 

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III. 

 Defendant Tommy Jackson is eligible for a sentence reduction under the First Step Act. 

The Court will need current information so that it can apply the factors found in 18 U.S.C. § 

3553(a) and make an informed decision on resentencing. 

 Accordingly, it is ORDERED that the defendant’s motion to reduce his sentence under the 

First Step Act (ECF No. 37) is GRANTED IN PART. 

 It is further ORDERED that United States Probation Department provide updated, current 

information on the defendant’s status by February 16, 2021. 

 It is further ORDERED that if the parties wish to comment on the updated information, 

they must do so on or before February 23, 2021. 

 It is further ORDERED that the defendant’s motion for immediate consideration (ECF 

No. 42) is DENIED as moot. 

 s/David M. Lawson 

 DAVID M. LAWSON 

 United States District Judge 

Dated: January 25, 2021 

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