Opinion
CRIMINAL NO. 3:9-25
10-02-2019
UNITED STATES of America v. Lewis H. ERVIN, III, Defendant.
John J. Valkovci, Jr., United States Attorney's Office, Johnstown, PA, for Plaintiff.
John J. Valkovci, Jr., United States Attorney's Office, Johnstown, PA, for Plaintiff.
MEMORANDUM OPINION
KIM R. GIBSON, UNITED STATES DISTRICT JUDGE
I. Introduction
Before the Court is Defendant Lewis Ervin's Motion to Reduce Sentence pursuant to Section 404 of the First Step Act (ECF No. 117). This motion is fully briefed (ECF Nos. 117, 120, 123) and ripe for disposition.
This case arises from several sales of cocaine base (commonly known as "crack") that occurred in April of 2009. Ervin was convicted under a sentencing regime for crack that is no longer in effect, and requests that the Court reduce his sentence. This Court sentenced Ervin to 262 months of imprisonment and a five-year term of supervised release for crack cocaine-related offenses. (ECF No. 67.) Now, pursuant to Section 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018) ("Section 404"), Ervin moves this Court for a reduction in his sentence to 130 months and a supervised release term of 4 years. (ECF No. 117 at 1.) For the following reasons, the Court will grant Ervin's motion in part.
II. Procedural Background
On December 3, 2009, Ervin pleaded guilty to a six-count indictment in this matter. (ECF No. 53.) Count One charged Ervin with conspiracy to possess with intent to distribute fifty (50) grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 846. (ECF No. 1 at 1.) Counts Two through Five charged Ervin with distribution of less than five (5) grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). (Id. at 2–5.) Count Six charged Ervin with possession with intent to distribute fifty (50) grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii). (Id. at 6.) At the time of the offense, Defendant faced a mandatory minimum sentence of 10 years of imprisonment and a maximum of life imprisonment, along with at least five years of supervised release for Counts One and Six. (Presentence Investigation Report at 1A.) For Counts Two through Five, Ervin faced a sentence not to exceed 20 years, and at least three years of supervised release.
The Court will cite to the Presentence Investigation Report as "PSR." While the PSR is not filed on the ECF docket, both parties cited to various portions of it in their briefing on the pending Motion.
A. Ervin's Guilty Plea
At his change of plea hearing, Ervin admitted to the charges contained in the indictment. (ECF No. 62 at 23:21–24:9.) Ervin admitted to one count of engaging in a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, four counts of engaging in distribution of less than five grams of cocaine base, and one count of engaging in possession with intent to distribute 50 grams or more of cocaine base. (Id. ) Ervin admitted to selling several quantities of crack, as contained in the indictment, and admitted to possessing 311.69 grams of crack. (Id. at 24:14–30:22.)
Including the amount sold during the controlled buys, the total amount involved in this offense is 318.67 grams. (PSR at ¶ 5.) The street value of this crack was approximately $32,600. (Id. at ¶ 12.)
B. Ervin's Sentencing
On April 7, 2010, the Court sentenced Defendant to a term of imprisonment of 262 months at Counts One and Six, and a term of 240 months at Counts Two through Five, to be served concurrently. (ECF No. 67.) The Court imposed a term of supervised release of five years for Counts One and Six, and three years for Counts Two through Five, also concurrent. (Id. )
During Ervin's sentencing proceeding, the Court reviewed the sentencing guidelines for Ervin's offenses. (ECF No. 89 at 4:17–7:22.). The Court used the 2009 edition of the Guidelines Manual in calculating the guidelines range. (Id. at 4:24–5:2.) Based on Ervin's possession of 318.67 grams of crack, the guidelines assessed a base offense level of 32, pursuant to section 2D1.1(c)(4). (Id. at 5:6–14.) With all adjustments applied, Ervin's adjusted offense level was 29. (Id. at 5:17–6:4.) Based on Ervin's prior conviction of a sex offense in Maryland, as well as a robbery conviction in Pennsylvania, and because Ervin's offense involved drugs and he was older than 18 at the time of the offense, he was given a chapter four enhancement as a career offender, giving him an offense level of 37 under Section 4B1.1. (Id. at 6:5–20.) With the reductions, noted above, Ervin's final offense level was 34. (Id. at 6:20–7:4.)
The PSR guided the Court's calculation of the guidelines range. The information cited in this Order can also be found in that document.
The controlled buys consisted of 6.98 grams of crack, and Ervin had 311.69 grams in his possession when he was arrested.
There was a two-level downward reduction for acceptance of responsibility and a one-level reduction for timely notification of intent to enter a guilty plea. There were no further adjustments.
The offense level of 37 was a result of the maximum sentence of life imprisonment that Ervin could have received. See U.S.S.G. § 4B1.1.
Ervin's extensive criminal history resulted in a criminal history score of ten, and the fact that the offense was committed within two years of his release for a prior drug possession conviction added an additional two points, for a criminal history score of twelve. (Id. at 7:5–12.) A criminal history score of twelve would ordinarily have resulted in a criminal history category of five, but with Ervin's career criminal classification, his criminal history category was six. (Id. at 7:13–22.)
Counts One and Six were Class A felonies, while Counts Two through Five were Class C felonies. (Id. at 8:3–8.) Based on Ervin's offense level of 34 and criminal history category of six, the guidelines range was between 262 and 327 months of imprisonment. (Id. at 8:9–11.) Ervin had a mandatory term of supervised release of at least five years for Counts One and Six, and three years for Counts Two through Five. (Id. at 8:14–22.) Prior to the Court's sentence, Ervin presented eight letters on his behalf, which the Court reviewed. (Id. at 11:25–13:4.)
Ervin moved for a downward departure on the grounds that the career criminal classification and the associated guidelines enhancement over-represented his criminal history, particularly citing a twelve-year period of Ervin's history with no criminal issues, and requesting a criminal history category of five, rather than six. (Id. at 14:1–20:6.) Ervin's request would have resulted in a guidelines range of between 235 and 293 months. (Id. at 20:16–18.) After argument from the Government, the Court denied the request. (See id. at 20:25–25:11.) Ervin also requested that the Court grant a downward variance on the basis of the disparity between penalties for crack and powder cocaine, a disparity the 2010 FSA and Section 404 were intended to remedy. (Id. at 25:16–29:11.) The Court did not accept the argument, and sentenced Ervin to 262 months of imprisonment at Counts One and Six and 240 months of imprisonment at Counts Two through Five, along with a term of supervised release of five years for Counts One and Six and three years for Counts Two through Five. (Id. at 37:16–38:5.) The Court then justified its sentence based on the factors set forth in 18 U.S.C. § 3553(a). (Id. at 40:8–43:23.)
C. Ervin's Personal History
Ervin has a long criminal history, beginning in the 1990s. (PSR ¶ 34.) Ervin's criminal record, in addition to the offenses at issue here, includes both juvenile and adult offenses.
There are no records of juvenile proceedings against Ervin, but Ervin indicated that he had at least one juvenile adjudication for narcotics-related offenses. (PSR at ¶ 33.)
In 1995, at the age of 18, Ervin was charged with Unauthorized Use of a Motor Vehicle; Car Theft; Theft, $300 plus value; and CDS (Controlled Dangerous Substance) Possession, and he pleaded guilty to Unauthorized Use of a Motor Vehicle. (Id. ¶ 34.) He served three months of a two-year sentence. (Id. )
In 1996, at the age of 19, Ervin was charged with CDS Possession and Possession with Intent to Distribute, and was convicted of CDS Possession, was sentenced to probation, violated his probation, and had his probation revoked—the disposition of that revocation is unknown. (Id. ¶ 35.)
Also in 1996, at the age of 19, Ervin pleaded guilty to a third-degree sex offense and received a seven-year sentence, of which six years and seven months was suspended. (Id. ¶ 36.) Ervin violated his probation and served five years. (Id. ) In addition to the third-degree case, to which Ervin pleaded guilty, he was charged with forcible rape, assault with intent to rape, and assault. (Id. ) The crime involved two female victims who accepted a ride from one of Ervin's acquaintances; upon arrival at a house, Ervin's acquaintance told the girls they could not leave, and one of the victims saw a firearm in the house. (Id. ) Ervin arrived, and he and his acquaintance made the victims drink something that made them feel "dizzy and dazed." (Id. ) After the girls had consumed the drink, Ervin took one girl, aged 14, into a room and had sex with her against her will. (Id. ) As part of the terms of his conviction, Ervin agreed to register as a sex offender every six months for life. (Id. ) He was ultimately released in 2002. (Id. )
In 1997, at the age of 20, Ervin pleaded guilty to charges of Reckless Endangerment, Burglary, Robbery, Criminal Conspiracy, Simple Assault, Theft by Unlawful Taking, and Prohibited Offensive Weapons in Blair County, Pennsylvania. (Id. ¶ 37.) He was sentenced to 18–36 months, and was ultimately returned to Maryland to finish serving his sentence on the sex offense charge. (Id. ) In committing the robbery, Ervin, along with two others, approached a house and entered an unlocked door. (Id. ) One of Ervin's co-defendants immediately discharged his pistol, striking one of the residents in the neck, and the same co-defendant later threatened to shoot another victim if he did not give up his money. (Id. ) Ervin, holding a sawn-off shotgun, stole $1,500 out of a purse, held the shotgun to one of the victims and demanded that he strip off his clothes, a process Ervin then repeated with another victim. (Id. )
In 2004, at the age of 27, Ervin pleaded guilty to CDS Possession (cocaine) and Driving Without a License in Baltimore. (Id. ¶ 38.) He was sentenced to 4 years of incarceration suspended, and later violated his parole by missing a violation hearing while incarcerated on another offense. (Id. )
Later in 2004, still aged 27, Ervin pleaded guilty to failing to stop for a police vehicle and was sentenced to 3 days in jail. (Id. ¶ 39.)
In 2005, at the age of 28, Ervin again pleaded guilty to possession of crack. (Id. ¶ 40.) Ervin was sentenced to between 15 and 30 months, and was released in 2007, two years prior to the events giving rise to this case. (Id. )
In addition, Ervin was charged with the following crimes that were eventually dropped: in 2005, in conjunction with his conviction, possession and delivery stemming from controlled buys made on August 5, 2005, August 6, 2005, August 7, 2005, and August 11, 2005. (Id. ¶¶ 45–48.) Ervin has also been arrested for aggravated assault (twice), and failure to register as a sex offender, as well as state charges arising from this case. (Id. ¶¶ 49–52.)
Ervin also had an outstanding warrant at the time the PSR was filed for the same charge. (PSR ¶ 53.)
III. Discussion
A. The Parties' Arguments
Ervin argues that Section 404 renders him eligible for a reduction in his sentence because: (1) his conviction is for a "covered offense" because the 2010 FSA modified the statutory penalties for his offense; (2) this Court imposed the initial sentence under the pre-2010 FSA regime, and may now impose a reduced sentence under Section 404; and (3) none of the limitations on this Court's power to reduce a sentence under Section 404 are applicable here, as he has never previously moved to reduce his sentence. (ECF No. 117 at 6–7.)
Ervin also contends that this Court should reduce his sentence for three reasons: (1) Ervin's background and behavior while incarcerated justify a reduction in sentence; (2) the advisory guidelines, under which this Court sentenced him are also altered by the 2010 FSA and, because this Court sentenced him at the bottom end of the original guidelines, this Court should resentence him at the bottom of the new guidelines; and (3) a reduced sentence will still comport with the need for punishment and deterrence.
The Government responds that: (1) the 2010 FSA does not apply when a defendant possesses over 280 grams of crack, and Ervin admitted to possessing over 300 grams of crack at his plea hearing, so he is ineligible for relief on Counts One and Six; (2) the 2010 FSA did not reduce the penalties for violating 21 U.S.C. § 841(b)(1)(C), so they are not covered offenses for which Ervin is eligible for relief; and (3) even if Ervin is eligible, the Court should deny him a sentence reduction based on the severity of the offense and his extensive criminal history.
B. Ervin Is Eligible for a Reduction in Sentence on Counts One and Six
Congress enacted the First Step Act on December 21, 2018, and it amends the 2010 FSA, allowing district courts to retroactively reduce criminal sentences for crack-cocaine offenses "as if sections 2 and 3 of the Fair Sentencing Act of 2010 ... were in effect at the time the covered offense was committed." § 404(b).
Section 404 defines a "covered offense" as follows: "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."
Congress enacted Section 404 to address severely racially-disparate sentencing outcomes based on the different sentencing regimes for crack and powder cocaine. Prior to the enactment of the 2010 FSA, a drug dealer trafficking in crack cocaine was subject to the same sentence as one dealing in one hundred times that amount of powder cocaine. Kimbrough v. United States , 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Accordingly, crack dealers faced sentences of anywhere between three and six times as long as those who dealt powder in equivalent amounts. Id. at 94, 128 S.Ct. 558. In 1986, the Anti-Drug Abuse Act ("ADAA") created a tiered series of mandatory minimum sentences for drug dealers, the severity of which Congress based solely on the weight of the narcotics involved. Id. at 95, 128 S.Ct. 558. Essentially, the ADAA set the threshold for the first mandatory minimum, five years, at five grams of crack, and five hundred grams of powder cocaine; a ten-year minimum applied to 50 grams of crack and 5,000 grams of powder. Id. at 96, 128 S.Ct. 558. This was based, at least in part, in reaction to the crack epidemic sweeping the nation. As a result of this decision, and the enactment of the ADAA, severe racial disparities in sentencing drug crimes arose. See Dorsey v. United States , 567 U.S. 260, 268, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Ultimately, after nearly 25 years of this sentencing regime, Congress enacted the 2010 FSA in an effort to reduce those disparities. Id. at 268–69, 132 S.Ct. 2321.
The Court will not discuss in depth the intense racial disparities that arose in sentencing, but a brief overview from the ACLU can be found at https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-law.
The 2010 FSA altered the amount of crack required to trigger the mandatory minimums: 5 grams of crack for a five year minimum became 28 grams; 50 grams of crack for a ten-year minimum became 280—while leaving powder's weight requirements at 500 and 5,000, respectively. Id. at 269, 132 S.Ct. 2321. This law went into effect for defendants who were sentenced on or after August 3, 2010, the 2010 FSA's date of enactment, but it was not retroactively applicable. See id. at 278, 132 S.Ct. 2321. Section 404 made the 2010 FSA retroactive.
Under Section 404, defendants may apply for a sentence reduction to the district court in which they were sentenced. Id. ; United States v. Thompson , No. 03-cr-72, 2019 WL 460361, at *1 (W.D. Pa. Feb. 6, 2019). To be eligible, a defendant must meet three requirements: (1) the defendant's conviction must be a "covered offense," where the 2010 FSA modified the penalties; (2) the defendant must apply to the court that previously sentenced him for a reduced sentence; and (3) the defendant must not have previously moved for a reduced sentence. § 404. Prior to the 2010 FSA, the threshold of 21 U.S.C. § 841(b)(1)(A)(iii) was 50 grams; after the 2010 FSA it is 280 grams. If the defendant was convicted of possessing over 280 grams of crack, Section 404 does not cover the offense, and the defendant is ineligible for relief.
A "covered offense" is: (1) a violation of a federal criminal statute; (2) for which the penalties were modified by section 2 or 3 of the Fair Sentencing Act of 2010; that (3) was committed before August 3, 2010. Id. § 404(a). The Court has discretion to determine if Ervin merits a reduced sentence under Section 404; however, this Court is under no obligation to reduce the sentence of an eligible defendant. Id. § 404(c)
The Government does not dispute either the second or third elements of eligibility. However, the Government does dispute that Ervin's crimes are "covered offenses" to which Section 404 applies. The Government asserts that Ervin possessed 318.67 grams of crack cocaine, which exceeds the 280-gram threshold required to trigger the ten-year mandatory minimum, even under the revised 2010 FSA guidelines framework. (ECF No. 120 at 7.) The Government argues that because Ervin possessed an amount in excess of the mandatory minimum threshold, the guidelines range would have been identical, whether Ervin was sentenced under the 2010 FSA or the 1986 ADAA framework. (Id. )
Ervin contends that his offense is a "covered offense" as Section 404 defines it because the 2010 FSA modified the statutory penalties for the offenses of conviction: possession with intent to distribute 50 grams or more of cocaine base and conspiracy to possess with intent to distribute 50 grams or more of cocaine base. (ECF No. 117 at 6.) At the time that this Court convicted Ervin, those covered offenses, violations of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii), carried a statutory minimum of ten years' imprisonment and a statutory maximum of life imprisonment. (Id. ) Section 2 of the 2010 FSA modified the penalties for these offenses so that the same crimes now carry a minimum sentence of five years and a maximum of 40 years, and reduce the supervised release term from five years to four. (Id. )
The issue at the heart of this case is whether the 2010 FSA changed the penalties for Mr. Ervin's conviction. In essence, the question is, does the amount of cocaine Ervin actually possessed matter, or is the only relevant issue the amount of cocaine this Court convicted Ervin of possessing? What, then, does "offense" mean? Ervin maintains that "offense" means the amount he was convicted of possessing with intent to distribute (i.e., 50 grams or more of crack); the Government contends that the amount he actually possessed is the relevant standard (i.e., 318.67 grams). If the former, Ervin's guidelines range is reduced, and this Court must determine whether to reduce his sentence or not; if the latter, this Court may not reduce Ervin's sentence, irrespective of how deserving he may or may not be. Ervin argues that the meaning of "offense" is unambiguously the offense of conviction, and that when the language is clear, the courts have an obligation to enforce the statute as written. (ECF No. 117 at 8 (citing Sebelius v. Cloer , 569 U.S. 369, 381, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013) ).) Ervin argues that the majority of courts to have addressed this issue have ruled in favor of the position he advocates.
The Government responds that Ervin's conduct is punishable by the same penalties both before and after Section 404, and so there is no "covered offense." (ECF No. 120 at 8.) The Government contends that the text of surrounding provisions of Section 404 indicates that "offense" is meant to refer to conduct rather than conviction; specifically, that a "covered offense" is defined as a "violation of a Federal criminal statute," tying "violation" to actual conduct, rather than the language of the indictment. (Id. ) The government points out that Section 404 permits a court to reduce a sentence "as if" the 2010 FSA had been "in effect at the time the covered offense was committed," which focuses on when the defendant committed the offense, rather than the time the Government filed charges, also pointing towards the conduct, not the conviction. (Id. ) The Government also invokes the image of a "windfall" for crack defendants, hundreds or thousands of defendants sentenced who had distributed more than 280 grams, could suddenly be released, and argues that there is no support for this possibility in the legislative history. (Id. at 8–10.) Finally, the Government maintains that, had the 2010 FSA been in effect when Ervin committed his offenses, it would have charged him with crimes that would carry the same penalties as the offense for which this Court did convict and sentence Ervin.
The Court is unpersuaded by the Government's arguments, and holds that Ervin is eligible for relief under Section 404.
Section 404's eligibility test is simple: if the defendant was convicted of a covered offense, the Court may reduce the defendant's sentence. § 404(b). A "covered offense" is "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. Neither Ervin nor the government dispute that Counts One and Six were violations of federal statutes for which the 2010 FSA modified the penalties. This alone is sufficient to render Ervin eligible for a reduction, but the Court will address the parties' arguments further in the interests of completeness.
The word "offense" is defined as "a violation of the law; a crime." Offense , Black's Law Dictionary (11th ed. 2019). Similarly, "crime" is defined as "An act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding." Crime , Black's Law Dictionary (11th ed. 2019). Ervin's crime, for which this court convicted him, was possessing 50 or more grams of crack. It was not 318.67 grams. The amount that Ervin actually possessed is not necessarily the amount for which he was convicted of possessing. Section 404 applies "to offenses and not [to] conduct." United States v. Dodd , 372 F. Supp. 3d 795, 797 (S.D. Iowa 2019) (citing United States v. Davis , No. 07-CR-245S, 423 F.Supp.3d 13, 15-16, 2019 WL 1054554, at *2 W.D.N.Y. Mar. 6, 2019). The Government's position rests primarily on the fact that Ervin possessed enough crack to trigger the same statutory penalties today, even with application of the 2010 FSA. However, as detailed above, these arguments are unavailing. Both sides advance further arguments, but the language of the statute is clear, and when it is, this Court must apply it. Cloer , 569 U.S. at 381, 133 S.Ct. 1886. Accordingly, the Court holds that Ervin is eligible for a reduction in his sentence on Counts One and Six.
Other courts that have addressed this issue generally agree. See, e.g. , United States v. Shaw , No. 2-cr-162-bbc, 2019 WL 2477089, at *3 (W.D. Wis. June 13, 2019) (holding that defendant was entitled to relief under Section 404 because the crime charged, not the actually quantity possessed controlled). This Court, in determining Ervin's eligibility for relief under Section 404, will look to whether the 2010 FSA modified Ervin's offense of conviction to determine his eligibility; it will not "delv[e] into the particulars of the record to determine how [Ervin] committed [his] offense of conviction and how those facts would have hypothetically affected the charges brought against [Ervin] under the new statutory regime." United States v. Pierre , 372 F.Supp.3d 17, 22 (D.R.I. 2019). Ervin also cites numerous other cases in support of his argument. (See ECF No. 117 at 8–9; ECF No. 123 at 3–6.) These cases are sufficiently extensive that the Court will not list them further here.
C. Ervin Is Eligible for Relief on Counts Two through Five
The Government also asserts that, regardless of whether Ervin is eligible for a reduction in his sentences at Counts One and Six (possession with intent to distribute and conspiracy to do the same), he is ineligible for a reduction in his sentence for Counts Two through Five (distribution in violation of 21 U.S.C. § 841(b)(1)(C) ) because the 2010 FSA did not alter the penalties for those offenses. (Id. at 12.) See United States v. Martinez , 777 Fed.Appx. 946, 947 (10th Cir. 2019) (noting that the 2010 FSA did not modify the penalties for violations of 21 U.S.C. § 841(b)(1)(C) ). The Court agrees, and Ervin does not contest, that Section 841(b)(1)(C) was not modified by "either section 2 or 3 of the 2010 FSA," but the Court finds that the inquiry does not end there, for the reasons detailed below. (See ECF No. 123 at 11–12.)
Ervin asserts that the sentencing package doctrine permits the Court to recalculate his sentence. Ervin argues that this Court grouped his offenses together for sentencing purposes, and that the sentencing package doctrine permits the Court to reduce his entire sentence.
The sentencing package doctrine reflects the thought that when a defendant is convicted on multiple counts in the same indictment, the sentencing court is likely to pronounce the sentence on each count as part of a plan or "package." United States v. Davis , 112 F.3d 118, 122 (3d Cir. 1997) (citing United States v. Pimienta-Redondo , 874 F.2d 9, 14 (1st Cir. 1989), cert. denied , 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 ). Accordingly, when a conviction is vacated on one count of such a case, the sentencing judge is afforded the opportunity to reevaluate the sentence and the overall plan created at the initial sentencing., and ensure that the punishment is still appropriate. Davis , 112 F.3d at 122. However, the sentencing package doctrine generally comes into play in the context of motions to vacate under 28 U.S.C. § 2255, and the circuit courts have not yet weighed in on the applicability of the doctrine in Section 404 context.
Ervin argues that § 2255 does not restrict or limit the term "sentence," and in Section 404 context, similarly did not modify "sentence." Compare 28 U.S.C. § 2255 , with § 404(b). Section 404 authorizes the district courts to "impose a reduced sentence" as if the 2010 FSA were in effect. § 404(b). Another member of this Court, the Honorable Judge Fischer, has accepted this argument in granting relief under Section 404. See Order Reducing Sentence, United States v. Pegues , No. 2:08-cr-68, ECF No 188 (Apr. 23, 2019) (reducing defendant's term of imprisonment on a covered offense, and term of supervised release on both a covered and a noncovered offense).
The sentencing practice of grouping supports this conclusion. When conduct involved in multiple counts is closely related, and involves "substantially the same harm," as in the case where "the offense level is determined largely by ... the quantity of a substance involved," the Court groups the various charges together for sentencing purposes as one offense. See U.S.S.G. § 3D1.2. In the case where the offenses are narcotics-related, the offense level is set based on the aggregate quantity of the controlled substances involved, not the quantity involved in each separate offense. See U.S.S.G. § 3D1.3(b). When this Court imposed its sentence on Ervin, it grouped Counts One through Six to determine his base offense level. (See PSR at ¶ 20.) Accordingly, because the Court grouped Ervin's offenses, his sentence on Counts Two through Five was related to his sentence on Counts One and Six. Because Ervin's sentence on Counts Two through Five was not independent of his sentence on Counts One and Six, a situation analogous to § 2255 is created. Section 404 opened the door for this Court to reconsider Ervin's sentence—he received one sentence, not two—so the Court will proceed to determine if Ervin deserves a reduction in his entire sentence. To hold otherwise would frustrate Section 404 because drug offenses are often grouped under the sentencing guidelines.
The Court holds that the sentencing package doctrine applies in the context of Section 404, and that it may resentence Ervin on all six counts.
D. The Court Will Reduce Ervin's Sentence
Because the Court holds that Ervin is eligible for relief under Section 404, it must now proceed to exercise its discretion in deciding whether to reduce Ervin's sentence. See § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.); see also United States v. Bishop , No. 10-cr-30166-JPG, 2019 WL 1377020, at *1 (S.D. Ill. Mar. 27, 2019) ("Whether to reduce a sentence is at the discretion of the Court and is not required by Section 404."). This Court does not conduct a plenary resentencing under Section 404, because Section 404 does not "expressly permit" the Court to do so. See § 404; 18 U.S.C. § 3582(c)(1)(B) ; see also United States v. Brookins , No. 08-cr-166, 2019 WL 3450991, at *5 (W.D. Pa July 31, 2019). This Court is only authorized to 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." § 404(b); Brookins , 2019 WL 3450991, at *5. Other courts to have addressed the issue have come to the same conclusion. See Brookins , 2019 WL 3450991, at *5 (collecting cases). Accordingly, the Court will not conduct a plenary resentencing, and will not hold a new sentencing hearing. This Court "decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 [FSA.]" United States v. Hegwood , 934 F.3d 414, 418 (5th Cir. 2019), petition for cert. filed , No. 19-5743 (Aug. 28, 2019).
In determining whether to exercise its discretion to reduce Ervin's sentence, this Court is obligated to proceed by considering the factors set forth in 18 U.S.C. 3553(a). See Brookins , 2019 WL 3450991, at *6.
Ervin argues that the fact that he was sentenced under the highly disparate sentencing regime of the Anti-Drug Abuse Act, as well as his conduct in prison shows that he deserves a lighter sentence. (ECF No. 117 at 10.) Specifically, Ervin argues that his behavior in prison indicates that he is reformed. (Id. ) Ervin has completed over 2,000 hours of coursework while incarcerated, some of which is for college credit, taken through a college near where he is incarcerated. (Id. ) Ervin has also undergone drug treatment while incarcerated, and states that he has had good behavior in prison. (Id. ) Ervin also argues that the Court should reconsider his status as a career offender, because he does not have the required qualifying convictions, and further argues that, even if this Court does not reconsider his career offender status, a finding of eligibility under Section 404 automatically adjusts his guidelines range.
The Government responds that this Court should not reduce Ervin's sentence because of the severity of the conduct of the offense at issue, as well as his criminal history. (ECF No. 120 at 13.) The Government also contends that many of Ervin's arguments, particularly those based on his personal history, were raised at sentencing, and the Court considered them prior to imposing sentence. (Id. at 15–16.) In addition, the Government maintains that this Court may not reconsider Ervin's status as a career offender. (Id. at 16–18.)
The Court agrees that Ervin's guidelines range is reduced, but will not reconsider his status as a career offender. Section 3582(c)(1)(B) restricts this Court's ability to reduce Ervin's sentence to "the extent otherwise expressly permitted by statute," and this Court's inability to conduct a plenary resentencing means that this Court cannot reconsider his career offender status, whatever his argument's merit. See United States v. Potts , No. 2:98-cr-14010, 2019 WL 1059837, at *3 (S.D. Fla. Mar. 6, 2019) (holding that Section 404 claimants are "not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged"). However, as discussed above, Ervin is eligible for relief under Section 404.
When this Court sentenced Ervin in 2010, he was classified as a career offender, which produced a guidelines range of 262 to 327 months' imprisonment. (ECF No. 89 at 8:9–11.) For his offense, the sentencing guidelines assigned an offense level of 37, based the statutory maximum of life imprisonment. U.S.S.G. § 4B1.1(b). If Ervin faced the same charge today, his offense level, even with the career offender enhancement, would be 34. Id. When the adjustments are added, Ervin's offense level would be 31, which produces a guidelines range of 188 to 235 months of imprisonment. U.S.S.G. § 5A. This Court previously sentenced Ervin to 262 months of imprisonment, the lowest suggested term set forth in the guidelines, and five years of supervised release, the statutory minimum, on Counts One and Six. (ECF No. 89 at 37:16–38:5.) The Court sentenced Ervin to 240 months of imprisonment, the statutory maximum, and three years of supervised release, the statutory minimum, on Counts Two through Five. (See id. )
The Court's rationale for imposing the sentences then imposed remains, but the Court will reduce Ervin's sentence to be commensurate with what this Court sentenced him to in 2010, based on the guidelines range. Accordingly, Ervin's sentence at Counts One and Six is reduced to 188 months of imprisonment, and a statutory minimum term of supervised release of four years. 21 U.S.C. § 841(b)(1)(B). Ervin's sentence on Counts Two through Five is reduced to 188 months of imprisonment, with his term of supervised release to remain the same. Regarding the sentencing factors contained in § 3553(a), the Court believes the reasons on the record at Ervin's sentencing continue to accurately reflect its view on the appropriateness of the sentence. (See ECF No. 89 at 40:8–43:20.) The Court sentenced Ervin to a sentence at the low end of the guidelines range; with those guidelines now altered by Section 404, the Court believes that a similar reduction in Ervin's sentence is appropriate. The Court finds that Ervin's request for a reduction to 130 months, in light of this Court's inability to reconsider his career offender status, would not be appropriate.
IV. Conclusion
For the forgoing reasons, Ervin's Motion to Reduce Sentence Pursuant to Section 404 of Section 404 is granted in part. An appropriate order follows.
ORDER
AND NOW , this _____ day of October, 2019, upon consideration of Defendant's Motion to Reduce Sentence pursuant to Section 404 of the FIRST STEP ACT (ECF No. 117), and for the reasons set forth in the accompanying Memorandum Opinion, it is HEREBY ORDERED that said Motion is GRANTED IN PART . Ervin's Sentence is HEREBY REDUCED to a total term of imprisonment of 188 months, consisting of 188 months at Count One, 188 months at Count Two, 188 months at Count Three, 188 months at Count Four, 188 months at Count Five, and 188 months at Count Six to be served concurrently, followed by four years of supervised release at Count One and four years of supervised release at Count Six to be served concurrently.
IT IS FURTHER ORDERED that all other provisions of the Judgment entered on April 16, 2010, unless otherwise referred to in this order, shall remain unchanged and in full force and effect.