United States v. Jorge Petter ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7904
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE PETTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:06-cr-00162-RAJ-JEB-1)
Submitted: October 26, 2020 Decided: November 19, 2020
Before GREGORY, Chief Judge, and AGEE and WYNN, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Jorge Petter, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Petter appeals the district court’s order 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. In 2007, Petter pled guilty to conspiracy to distribute and possess with intent
to distribute five kilograms or more of cocaine and one kilogram or more of heroin, in
violation of 21 U.S.C. § 846 (Count 1), and making false, fictitious, and fraudulent
representations, in violation of 18 U.S.C. § 1001(a)(2) (Count 53). The district court
sentenced Petter to 372 months’ imprisonment on Count 1 and a concurrent 60-month term
on Count 53. Petter did not appeal.
In 2019, Petter moved for a reduction in sentence pursuant to the First Step Act.
Section 404 of the First Step Act permits a district court to impose a reduced sentence upon
a defendant convicted of a “covered offense” as if certain provisions of the Fair Sentencing
Act of 2010 (“FSA”), Pub. L. 111-220, 124 Stat. 2372, were in effect at the time the
defendant committed the “covered offense.” Section 404(a) of the First Step Act 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 [FSA].” Section 2 of the FSA “reduced the
penalties for specific cocaine-related offenses punishable under 21 U.S.C. § 841(b)(1)(A)
and (b)(1)(B) by increasing the amount of cocaine base required to trigger certain statutory
penalties.” United States v. Venable, 943 F.3d 197, 188 (4th Cir. 2019).
The district court determined that Petter was not eligible for relief because, in
addition to 38 grams of cocaine base, Petter’s relevant conduct included more than 5
kilograms of cocaine and more than 1 kilogram of heroin, and the statutory penalties for
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cocaine and heroin offenses were unchanged by the First Step Act or the FSA. Days before
the district court entered its order, however, we held that a defendant’s eligibility for relief
under the First Step Act turns on the defendant’s statute of conviction, not his offense
conduct. United States v. Wirsing, 943 F.3d 175, 182 (4th Cir. 2019). And we
subsequently held that, when a defendant is convicted of a conspiracy involving both
cocaine base and other controlled substances for which the FSA did not change the
penalties, the conviction qualifies as a “covered offense” under § 404(a). United States v.
Gravatt, 953 F.3d 258, 264 (4th Cir. 2020).
We need not vacate the district court’s order, however. Although the criminal
judgment states that Petter was convicted in Count 1 of conspiracy to distribute and possess
with intent to distribute cocaine, heroin, and cocaine base, our review of the plea agreement
and the Fed. R. Crim. P. 11 plea colloquy confirms that Petter pled guilty only to conspiracy
to distribute and possess with intent to distribute cocaine and heroin. Because Petter was
not convicted of a cocaine base offense and because the penalties for cocaine and heroin
offenses were not modified by the FSA, Petter was not convicted of a “covered offense”
and is not eligible for relief under the First Step Act.
Accordingly, we affirm the district court’s order denying Petter’s motion for a
sentence reduction under the First Step Act. We remand the case so that the district court
may amend the criminal judgment to delete the reference to cocaine base as an object of
the conspiracy in Count 1. See Fed. R. Crim. P. 36 (addressing correction of clerical
errors). We dispense with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED AND REMANDED
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