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granting a sentence reduction under § 3582(c)(B) to a petitioner who had a few relatively minor institutional violations and was not a management problem
Summary of this case from Owen v. United StatesOpinion
CRIMINAL ACTION NO. 4:98-cr-10-01
01-06-2020
David JONES , Petitioner, v. UNITED STATES of America, Respondent.
Keith Kimball, Assistant Federal Public Defender, for Petitioner. Howard Zlotnick, Assistant U.S. Attorney, for Respondent.
Keith Kimball, Assistant Federal Public Defender, for Petitioner.
Howard Zlotnick, Assistant U.S. Attorney, for Respondent.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge
Before the Court is David Jones' ("Petitioner") motion seeking relief under the FIRST STEP Act. ECF No. 217. For the reasons stated below, Petitioner's motion is GRANTED.
I. HISTORICAL BACKGROUND
On October 12, 1984, Congress passed the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-47, 98 Stat. 1976 ("CCCA"), which included the Sentencing Reform Act of 1984 ("SRA"). Through this, the legislature created the United States Sentencing Commission, which in turn established the Federal Sentencing Guidelines. See United States Sentencing Guidelines, § 1A1.1. As part of this new federal sentencing scheme, Section 3553(b)(1) of Title 18 of the United States Code made the guideline ranges mandatory.
On January 12, 2005, the United States Supreme Court held that these mandatory guideline sentences were unconstitutional in United States v. Booker , 543 U.S. 220, 244–45, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Since then, federal courts have considered the guideline ranges as advisory and are free to impose sentences that are within the statutory minimums and maximums. However, every single United States Court of Appeals has held that the Booker decision is not retroactive for purposes of collateral attacks. In re Fashina , 486 F.3d 1300, 1306 (D.C. Cir. 2007) (collecting cases); Cirilo-Munoz v. United States , 404 F.3d 527, 533 (1st Cir. 2005) ; Guzman v. United States , 404 F.3d 139, 142 (2d Cir. 2005) ; Lloyd v. United States , 407 F.3d 608, 610 (3d Cir. 2005) ; United States v. Morris , 429 F.3d 65, 72 (4th Cir. 2005) ; United States v. Gentry , 432 F.3d 600, 604 (5th Cir. 2005) ; Humphress v. United States , 398 F.3d 855, 860 (6th Cir. 2005) ; McReynolds v. United States , 397 F.3d 479, 481 (7th Cir. 2005) ; Never Misses A Shot v. United States , 413 F.3d 781, 783–84 (8th Cir. 2005) ; United States v. Cruz , 423 F.3d 1119, 1120–21 (9th Cir. 2005) ; United States v. Bellamy , 411 F.3d 1182, 1186–87 (10th Cir. 2005) ; Varela v. United States , 400 F.3d 864, 868 (11th Cir. 2005).
The undercutting of Booker's core remedial measure has created a lost generation, a group caught in a national purgatory, where individual citizens pay penance for the constitutional errors of the sovereign. For twenty years of this nation's history, at the height of what has been called the "crack epidemic," harsh sentences which disproportionately impacted African Americans were imposed based in unconstitutionally high guideline ranges. Although courts now have the discretion to depart from the Guidelines as they see fit after Booker , they could not review the sentences of this twenty-year period, leaving those individuals to serve their sentences based on an unconstitutional framework. The Petitioner in this case, David Jones, is but one of the many members of this lost generation.
On December 21, 2018, Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ("FIRST STEP Act"), which authorizes courts to "impose a reduced sentence for anyone" who (1) was convicted of a statute, for which the penalties were modified by Sections 2 or 3 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) ("FSA"); (2) the offense was committed before August 3, 2010; and (3) did not already receive a reduction under the FSA or the FIRST STEP Act. See FIRST STEP Act, § 404, 132 Stat. 5194, 5222. With this newest legislation, Congress has indeed taken the first step to begin correcting the wrongs done to the lost generation of 1984 to 2005.
II. FACTUAL AND PROCEDURAL HISTORY
From late 1989 to March 1998, Petitioner was involved in a long-running crack cocaine distribution conspiracy. ECF No. 216 at 4. On April 14, 1998, Petitioner was named in a 14-count superseding indictment (ECF No. 9) as indicated below:
• Count 1: Conspiracy to Possess with Intent to Distribute Crack Cocaine ( 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 )).
• Count 2: Continuing Criminal Enterprise ( 21 U.S.C. § 848 ).
• Count 3: Possession with Intent to Distribute Crack Cocaine ( 21 U.S.C. § 841(a)(1) ).
• Count 4: Use and Carrying of a Firearm in Connection with a Drug Trafficking Crime ( 18 U.S.C. § 924(c)(1) ).
• Count 5: Use and Carrying of a Firearm in Connection with a Drug Trafficking Crime ( 18 U.S.C. § 924(c)(1) ).
• Count 6: Use and Carrying of a Firearm in Connection with a Drug Trafficking Crime ( 18 U.S.C. § 924(c)(1) ).
• Count 7: Use and Carrying of a Firearm in Connection with a Drug Trafficking Crime ( 18 U.S.C. § 924(c)(1) ).
• Count 9: Possession with Intent to Distribute Crack Cocaine ( 21 U.S.C. § 841(a)(1) ).
• Count 10: Possession with Intent to Distribute Crack Cocaine ( 21 U.S.C. § 841(a)(1) ).
• Count 11: Possession with Intent to Distribute Crack Cocaine ( 21 U.S.C. § 841(a)(1) ).
Petitioner elected to go to trial, which commenced on July 6, 1998. On July 15, 1998, a jury found Petitioner guilty on Counts 1, 2, 3, 4, 6, 7, 9, and 10. ECF No. 37. Petitioner's conviction on Counts 2 was vacated and Counts 5 and 11 were dismissed after a motion from the Government. ECF No. 62. On November 17, 1998, this Court sentenced Petitioner as required under the then-mandatory sentencing guidelines to a total term of life plus 540 years as follows: life imprisonment on Counts 1, 3, 9 and 10; 60 months on Count 4 to run consecutively with the term in Counts 1, 3, 9, and 10; 240 months on Count 6 to run consecutively with the term in Counts 1, 3, 4, 9, and 10; and 240 months on Count 7 to run consecutively with the term in Counts 1, 3, 4, 6, 9, and 10. Id.
On May 11, 2015, this Court reduced Petitioner's life sentence to 360 months on Counts 1, 3, 9, and 10 pursuant to his motion under 18 U.S.C. § 3582(c)(2) after revisions to the guideline ranges ("Amendment 782 Motion"), while maintaining the full cumulative term of 540 months for Counts 4, 6, and 7, to run consecutively with the revised sentence of 360 months on Counts 1, 3, 9, and 10. ECF No. 179. After the Court's May 11, 2015 Order, Petitioner's sentence was for 900 months, or seventy-five years. Id. Petitioner has served over twenty-one years of his sentence. ECF No. 225-2.
On September 13, 2019, Petitioner filed his Motion to Reduce Sentence under the FIRST STEP Act. ECF No. 225. On September 16, 2019, the Court received a copy of Petitioner's original Presentence Report ("PSR"). ECF No. 226. On November 4, 2019, the Government responded in opposition to Petitioner's motion. ECF No. 229.
III. LEGAL STANDARD
When a court imposes a sentence of imprisonment, that is considered a final judgment on the matter. 18 U.S.C. § 3582(b). It is well established that "[t]he law closely guards the finality of criminal sentences against judicial ‘change of heart.’ " United States v. Goodwyn , 596 F.3d 233, 235 (4th Cir. 2010) (citing United States v. Layman , 116 F.3d 105, 109 (4th Cir. 1997) ). Under statutory law, a "court may not modify a term of imprisonment once it has been imposed" except in limited circumstances, including "to the extent otherwise expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B).
IV. DISCUSSION
Petitioner seeks relief under the FIRST STEP Act through 18 U.S.C. § 3582(c)(1)(B). The Court must decide (1) whether Petitioner is eligible for a sentence reduction under the FIRST STEP Act; (2) whether a hearing is necessary or required; and (3) what, if any, relief should the Court grant.
The parties disagree on whether the Petitioner is eligible for a reduced sentence under the FIRST STEP Act. Petitioner argues that the Court has discretion to reduce his entire sentence under the FIRST STEP Act. ECF No. 225. The Government argues that Petitioner does not qualify for a sentence reduction and uses an eligibility argument previously rejected by this Court in its evaluation of Petitioner's co-defendant. See e.g., United States v. Dshanna Yvonne Randall , No. 4:98-cr-00010 (E.D. Va. Oct. 21, 2019).
A. Resentencing under the FIRST STEP Act
1. The Court Has Discretion to Impose New Sentences on Qualified Individuals
As relevant to the FIRST STEP Act, § 3582(c)(1)(B) states that the court "may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." When it comes to legislation, § 3582 gives Congress wide discretion to craft the relief a court may impose. Therefore, it is the language of § 404 of the FIRST STEP Act that controls the amount of relief sought.
Two instances of the FIRST STEP Act's language guide this Court's analysis. First, § 404(b) states that "a court that imposed a sentence for a covered offense may" grant relief to the petitioner. "The word ‘may,’ when used in a statute, usually implies some degree of discretion ... [but] can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute." United States v. Rodgers , 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983) (citing United States ex rel. Siegel v. Thoman , 156 U.S. 353, 359–60, 15 S.Ct. 378, 39 L.Ed. 450 (1895) ). The FIRST STEP Act's use of "may" provides broad discretion to the federal courts; in fact, the Act explicitly notes, "Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section." FIRST STEP Act, § 404(c), 132 Stat. 5194, 5222. Other district courts have reached the same conclusion. See, e.g., United States v. Rose , 379 F.Supp.3d 223 , 229-30 (S.D.N.Y. 2019) (citing United States v. Allen , 384 F.Supp.3d 238 , 240-42 (D. Conn. 2019) ); United States v. Glore , 371 F. Supp. 3d 524, 527 (E.D. Wis. 2019). As such, the Court finds that the FIRST STEP Act grants broad discretion to the district courts in providing relief under this Act.
Second, § 404(b) states that a court may "impose a reduced sentence" if the individual meets the three requirements. To "impose" means "to levy or exact," Impose, Black's Law Dictionary (11th ed. 2019), or "to lay on, as something to be borne, endured, or submitted to." Impose, Oxford English Dictionary (2019). The word "impose" is used in the sentencing context at the disposition of a defendant's case, when the court announces the sentence. See 18 U.S.C. § 3553(a) ("The court shall impose a sentence sufficient, but not greater than necessary"); § 3582(a) ("The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a)"). When it comes to providing sentencing relief, § 3582, on the other hand, repeatedly uses the phrase "term of imprisonment" and allows a court to "reduce" or "modify" that term. 18 U.S.C. § 3582(c)(1)–(2). Under traditional statutory construction rules that "a word is given a consistent meaning throughout the United States Code" and that acts addressing the same subject matter "should be read together such that the ambiguities in one may be resolved by reference to the other," Firstar Bank, N.A. v. Faul , 253 F.3d 982, 990 (7th Cir. 2001), the use of the word "impose" as opposed to "modify" or "reduce" in the FIRST STEP Act is significant. Moreover, to the extent the mixing of these verbs and phrases are confusing or vague, the rule of lenity arguably applies. See United States v. Pierre , 372 F. Supp. 3d 17, 22 (D.R.I. 2019). Therefore, the Court finds that the FIRST STEP Act allows federal courts to in fact impose new reduced sentences, not simply modify or reduce the current "term of imprisonment" already decided.
In order to properly apply the FSA retroactively, the Court must do so in the context of Booker. Federal courts must presume that Congress acts in the context of relevant case law. See Abuelhawa v. United States , 556 U.S. 816, 821, 129 S.Ct. 2102, 173 L.Ed.2d 982 (citing Williams v. Taylor , 529 U.S. 362, 380–81, n. 12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). By the time the FSA was enacted, Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Booker , 543 U.S. 220, 125 S.Ct. 738 (2005), Kimbrough v. United States , 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and other foundational cases on sentencing had already been decided. Moreover, courts may now impose a new reduced sentence under the FIRST STEP Act. If the Court chooses to exercise its discretion to do so, the Court must consider Booker and its related case law since "the law in effect at the time governs sentencing." United States v. Schaefer , 120 F.3d 505, 507 (4th Cir. 1997) (citing Hughey v. United States , 495 U.S. 411, 413 n.1, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ). Therefore, the Court finds that because Congress decided to apply the FSA retroactively through the FIRST STEP Act, the relevant sentencing precedents of Booker and its progeny must be considered in imposing the new reduced sentences. The retroactive nature of the FIRST STEP Act provides long-awaited relief to those sentenced under the unconstitutionally imposed mandatory guideline ranges.
This reading of the FIRST STEP Act comports with the purpose of the legislation, which is "further[ing] the Fair Sentencing Act's objective of mitigating the effects of a sentencing scheme that had a racially disparate impact." United States v. Allen , 384 F.Supp.3d 238 , 242 (D. Conn. 2019) (citing Dorsey v. United States , 567 U.S. 260, 268, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) ). This much is evidenced by the text of § 404 itself, which allows courts to apply the FSA retroactively to cases. See FIRST STEP Act, § 404(a), 132 Stat. 5194, 5222. To simply ignore this case law, in the context of the FSA and the purpose of the FIRST STEP Act, would fundamentally undermine the very issues Congress sought to address.
2. The FIRST STEP Act is Not Limited by § 3582(c)(1)(B)
The Government also argues that the FIRST STEP ACT must be read together with other existing statutes, including § 3582(c). ECF No. 223 at 11–12. The Government's core argument is that the FIRST STEP Act is limited to the bare minimum guideline-based resentencing traditionally seen in § 3582 motions. In so doing, the Government relies on the limited nature of motions made under § 3582(c)(1)(B) pursuant to Federal Rule of Criminal Procedure 35 and those made under § 3582(c)(2).
As previously noted, § 3582(c)(1)(B) allows a court to "modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." This is markedly different than the parameters explicitly noted in Rule 35 or § 3582(c)(2). Relief under Rule 35 can only be granted "upon the government's motion." As for § 3582(c)(2), that subsection only applies when the guideline range "has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o)," and in those cases it is only the range that is adjusted. Dillon v. United States , 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ; see U.S.S.G. § 1B1.10(b)(1). As the Court explained above, the FIRST STEP Act does not involve the same limited set of circumstances and in fact emphasizes the broad discretion of the sentencing court. Section 3582(c)(1)(B) leaves the door wide open for Congress to grant whatever relief is necessary, which may or may not extend beyond the traditional scope of § 3582 motions. The Court finds no issue of statutory conflict between the FIRST STEP Act and § 3582.
B. Petitioner's Eligibility for a sentence reduction under the FIRST STEP Act
Section 404 of the FIRST STEP Act applies to individuals who (1) were convicted under a statute for which the penalties were modified by Sections 2 or 3 of the FSA; (2) committed the offense before August 3, 2010; and (3) did not already receive a reduction under § 404 that was denied on its merits. FIRST STEP Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). Petitioner committed these offenses between late 1989 and March 1998. ECF No. 226 at 7. Petitioner has received a reduction under § 3582(c)(2) pursuant to reduction in the guideline range after Amendment 782. ECF No. 179. He has not previously received any reduction under § 404. Accordingly, Petitioner satisfies the second and third prongs necessary to qualify for relief under the FIRST STEP Act. However, the parties dispute whether the Petitioner satisfies the first prong.
1. Drug Quantity Considered for Count 1
The dispute between the parties regarding Petitioner's eligibility for relief under the FIRST STEP Act turns on the meaning of the following passage from § 404(b):
[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.
In essence, the parties disagree as to whether Petitioner committed a "covered offense" under the meaning of § 404(b). Petitioner argues that his offense is a covered offense and he is eligible for relief based on the Court's consideration of the quantity of cocaine base alleged in the charging document and found by a jury at trial, not the quantity of cocaine base used to set the offense level in the PSR. ECF Nos. 225, 232. The Government argues that the offense in question is not a covered offense because: (1) the Court should assume that Petitioner is liable for the drug quantity listed in his PSR as to the conspiracy charged in Count 1; and (2) the statutory penalty range for the drug quantity listed in the PSR would be the same after passage of the FSA, so Petitioner is ineligible for relief under the FIRST STEP Act. ECF No. 229.
The Court must impose a sentence based on the law at sentencing. Schaefer , 120 F.3d 505, 507 (4th Cir. 1997) (citing Hughey v. United States , 495 U.S. 411, 413 n.1, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ). As such, it is clear that (1) "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; and relatedly, (2) any fact that increases a mandatory minimum must be submitted to the jury. Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
The FSA raised the quantity of crack cocaine necessary to qualify for the mandatory minimums specified under 21 U.S.C. § 841(b)(1) from 50 grams to 280 grams and from 5 grams to 28 grams. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372 (2010). The FIRST STEP Act applies to individuals who were convicted of a statute, for which the penalties were modified by Sections 2 or 3 of the FSA. FIRST STEP Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018).
Moreover, because drug quantity is a fact which increases the penalty for the offenses in Petitioner's case, the drug quantity attributable to the Petitioner must be based on the statutory amounts alleged in the indictment, not the offense conduct noted in the PSR. See id.; Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 . Other district courts facing this same question under the FIRST STEP Act have reached the same conclusion. United States v. Latten , No. 1:02-cr-11, 2019 WL 2550327, at *2–*3 (W.D. Va. June 20, 2019) ; United States v. Booker , No. 07-cr-843, 2019 WL 2544247, at *2 (N.D. Ill. June 20, 2019) ; United States v. Stone , No. 1:96-cr-403, 2019 WL 2475750, at *2–*3 (N.D. Ohio June 13, 2019) ; Rose , 379 F.Supp.3d at 22 9- 3 1 ; United States v. Smith , 379 F.Supp.3d 543 , 546-47 (W.D. Va. 2019) ; United States v. Powell , 360 F. Supp. 3d 134, 139 (N.D.N.Y. 2019) ; United States v. Davis , No. 07-cr-245s, 2019 WL 1054554, at *2–*3 (W.D.N.Y. Mar. 6, 2019). Therefore, the Court finds that (1) the plain meaning of § 404(b) allows the Court to impose a reduced sentence for crack cocaine offenses committed before the passage of the FSA; and (2) the degree of eligibility for such a reduced sentence is based on the statutory charges in the indictment.
Notably, this Court has previously held that the drug quantity attributable to a petitioner seeking relief under the FIRST STEP Act must be made based on the statutory charges in the indictment, not the offense conduct alleged in the Petitioner's PSR. See e.g. Marty Lorenzo Wright v. United States , No. 4:95-cr-00039, ECF No. 721 (E.D. Va. July 11, 2019). More specifically, any drug quantity attributable to a defendant must come with the defendant's stipulation at their guilty plea or found by a jury at trial.
In this case, Petitioner was convicted of Counts 1, 3, 9, and 10 under 21 U.S.C. § 841, but the jury was not asked to make any finding as to the drug quantity attributable to him for any of his counts of conviction. More precisely, the jury did not have to specifically attribute any particular quantity of crack cocaine to the Petitioner to convict him of the conspiracy charged in Count 1 and additional crack cocaine counts charged in Counts 3, 9, and 10. See United States v. Jones , 198 F.3d 238, 1999 WL 957706 at *1 (4th Cir. Oct. 19, 1999) ("[b]ecause quantity is not a substantive element of the offense, but is merely a sentencing factor, the Government need only prove quantity by a preponderance of the evidence"). As a consequence, Petitioner was convicted for his role in the drug conspiracy, but the jury was never permitted to consider the amount of crack attributable to the Petitioner or its impact on his sentence. Instead, Petitioner was found guilty of the crack cocaine conspiracy and the associated firearms charges and sentenced under pre-FSA law, pursuant to mandatory guidelines, and based on findings made using a lower standard of proof. In contrast, under the current version of § 841, drug weight is a fact which increases mandatory minimum sentences, the thresholds for which were modified under the FSA and made retroactive under § 404 of the FIRST STEP Act. Additionally, the sentencing guidelines ranges are now advisory, based on drug quantities that must be proven to a jury in order to trigger mandatory minimum sentences. Further, at sentencing, the Court is no longer bound by harsh mandatory sentencing guidelines that have since been modified beyond the mandatory minimums that still exist under the current version of § 841. Based on the foregoing, the Court finds Petitioner's case to be the exact sort of crack cocaine sentence the FIRST STEP Act was designed to address.
In opposition to Petitioner's eligibility under § 404, the Government contends that the Court must ignore the principles of law articulated in Alleyene and Apprendi requiring facts which increase a mandatory prison term to be proven beyond a reasonable doubt, as well as the changes to crack cocaine sentencing initiated by the FSA. On its face, § 404 allows this Court to consider relief for a crack cocaine sentence issued under § 841, as the penalty structure for such offenses was modified by the FSA. Additionally, the Court presumes Congress was aware of Alleyene, Apprendi , and Booker —as well as the Supreme Court's refusal to apply those cases retroactively—when it passed the FIRST STEP Act with such a broad retroactivity provision in order to partially remedy pre-FSA crack cocaine sentencing disparities. By the Government's own admission, the practical consequences of its interpretation would be to render any defendant convicted of distribution of an unspecified quantity of crack cocaine ineligible for consideration under the FIRST STEP Act based on documents unreviewed by a jury. As a practical matter, the Government is asking for the perpetuation of the injustices of the pre-FSA crack cocaine penalty structure that have since been rejected by Congress by assuming that Congress would not want the principles of Alleyene and Apprendi , as well as Booker , to apply to the Court's present consideration of Petitioner's eligibility under the newly enacted FIRST STEP Act. Further, the Government's statutory interpretation would require the Court to "speculate" about what the Government may have been able to prove to a jury beyond a reasonable doubt—which is even more dubious than asking the Court to "speculate" about what the Government would have charged under current law.
The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") recently rejected the Government's proposed definition of "covered offense" which would have the effect of limiting eligibility for a new sentence under the FIRST STEP Act. Instead, the Fourth Circuit has determined that Congress's clear intent when enacting the FIRST STEP Act was to apply the Fair Sentencing Act to pre-Fair Sentencing Act offenders, while "emphasizing district courts' discretion." United States v. Wirsing , 943 F.3d 175,186 (4th Cir. 2019). There is no indication that Congress intended a complicated and eligibility-limiting determination at the "covered offense" stage in the analysis, leading to a simple interpretation of the statute. Id. Put simply, a petitioner is eligible to seek relief under the FIRST STEP Act if (1) convicted under a statute for which the penalties were modified by Sections 2 or 3 of the FSA; (2) the offense was committed before August 3, 2010; and (3) a reduction under § 404 was previously denied on its merits.
In sum, the Court declines to limit its own discretion in a manner unsupported by the text of § 404(b) or the context of the passage of the FIRST STEP Act. Therefore, Petitioner qualifies for a sentence reduction under the FIRST STEP Act for the drug convictions listed as Counts 1, 3, 9, and 10.
C. Disposition
The Court now turns to how the FIRST STEP Act affects Petitioner's case. The Court will first address two issues of his sentence: the relevant drug quantities and the applicable mandatory minimums for the gun charges. Then the Court will go through the § 3553(a) factors and impose a new sentence on the Petitioner.
1. The Drug Quantities Considered for Counts 1, 3, 9 and 10 (The Drug Charges)
The FSA raised the minimum drug amounts from 50 grams to 280 grams for 21 U.S.C. § 841(b)(1)(A) and for § 841(b)(1)(B) from 5 grams to 28 grams. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372 (2010). There is also a sentencing option for unspecified quantities of controlled substances within schedule I or II. See 21 U.S.C. § 841(b)(1)(C). As previously discussed, Petitioner's drug counts did not ask the jury to make a specific finding as to the quantity of drugs attributable to him. Therefore, the drug quantity attributable to Petitioner must be based on the statutory amounts alleged in the indictment, not the offense conduct as noted in the PSR.
The Court has previously resentenced Petitioner's co-defendant, Dshanna Yvonne Randall, to a term of 109 months on Counts 1, 3, 9, and 10 of the same indictment. See United States v. Randall , No. 4:98-cr-00010-2, ECF No. 228 at 14-16 (E.D. Va. October 21, 2019). In other words, Petitioner was convicted and sentenced and is currently seeking relief based on the exact same drug counts. In the process of resentencing Randall, the Court concluded that she was responsible for 50 grams of crack cocaine on each count of conviction. Id. This was based on the assumption that a defendant sentenced pursuant to the mandatory minimums of the pre-FSA version of § 841(b)(1)(A) may be held responsible for 50 grams of crack cocaine on each count of conviction because the defendant is still responsible for the drug quantity up to the pre-FSA § 841(b)(1)(A) mandatory minimum threshold upon resentencing. Responsibility for 50 grams of crack cocaine places such a defendant over the threshold required to trigger the mandatory minimum of 5 years imprisonment under § 841(b)(1)(B) after the passage of the FSA under current law.
Despite the fact that a drug quantity over 50 grams may trigger a mandatory minimum when proven to a jury under current law, the Court is restricted from applying any mandatory minimum sentence to Petitioner upon resentencing. In this case, the Fourth Circuit concluded that drug quantity is merely a sentencing factor, not a substantive element of the offense on direct appeal. United States v. Jones , 198 F.3d 238, 1999 WL 957706, at *1 (4th Cir. 1999). However, under the principles of Alleyene and Apprendi , any fact that triggers a mandatory minimum—including a quantity of drugs pursuant to § 841(b)(1) —must be proven to a jury beyond a reasonable doubt. Therefore, under the FIRST STEP Act, a defendant cannot be resentenced under a statute carrying a mandatory minimum sentence when he or she was not indicted for any particular drug quantity and the jury was never required to make a finding that would support the application of a mandatory minimum. This principle regarding the application of mandatory minimum sentences applies regardless of whether the drug quantity threshold is derived from before or after the passage of the FSA. Here, it is clear from both the trial and appellate record that Petitioner and his co-defendants were convicted for an unspecified quantity of drugs, but sentenced according to the pre-FSA version of § 841(b)(1)(A). In such a situation, the Court now concludes Petitioner and similarly situated defendants must be resentenced for an unspecified drug quantity pursuant to § 841(b)(1)(C), which does not carry a mandatory minimum and a statutory maximum of 20 years imprisonment. See United States v. Mansoori , No. 1:97cr00063-9, 2019 WL 6700166 (N.D. Ill. Dec. 9, 2019) (endorsing plenary resentencing for defendants with qualifying FIRST STEP Act convictions and concluding that "[i]n the absence of a jury finding a specific quantity of narcotics for a § 841(a) conviction, the default statutory maximum sentence is 20 years").
Previously, the Court found that Petitioner's co-defendant responsible for 200 grams of cocaine base for Counts 1, 3, 9, and 10. Likewise, the Court finds Petitioner responsible for 200 grams of cocaine base on the same drug counts. As such, Petitioner's base offense level is 28. U.S.S.G. § 2D1.1 (c)(6). Petitioner still receives a four-level enhancement for his leadership role in the offense, pursuant to U.S.S.G. § 3B1.1(a) and a two-level enhancement for use of a minor during the commission of the offense, pursuant to U.S.S.G. § 3B1.4. This produces a total offense level of 34. When combined with a Criminal History Category of III, Petitioner's guideline range is 188 to 235 months for his drug charges, below the statutory maximum of 20 years (240 months) outlined in § 841(b)(1)(C).
2. The Mandatory Minimums of Counts 4, 6, and 7 (the § 924(c) Charges)
Next, Petitioner argues that the new mandatory minimums for 18 U.S.C. § 924(c) under the FIRST STEP Act should apply to his revised sentence. ECF Nos. 225, 232. The FIRST STEP Act requires that an individual may only receive the higher twenty-five year mandatory minimum only after a previous conviction under the same statute has become final. FIRST STEP Act, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (2018). This addresses the "stacking" situation that Petitioner originally faced in the 1990s, where defendants were convicted of multiple counts under § 924(c) and received both the original five-year mandatory minimum for the first count and then an additional twenty-five year mandatory minimum for the second count. ECF No. 217 at 13.
The FIRST STEP Act states that this revision of § 924 only applies to cases where the Court has not imposed a sentence. FIRST STEP Act, § 403(b), 132 Stat. 5222. Here, the Court is imposing a new sentence on Petitioner. Therefore, it is as if Petitioner has not been sentenced. Because "a sentence is not merely the sum of its parts," and district courts impose "sentence[s] by considering all of the relevant factors as a whole," when a new sentence is imposed, a whole sentence on all counts should be imposed. United States v. Hadden , 475 F.3d 652, 669 (4th Cir. 2007). Since Petitioner is eligible for a new sentence for his drug counts, the Court may impose a new sentence on the gun counts as well or else risk "unbundl[ing] the entire sentence package." Id. The Court therefore finds that the FIRST STEP Act's change to the mandatory minimums of § 924(c) applies to Petitioner's new sentence.
3. The § 3553(a) Factors
Petitioner's guideline range is 188 to 235 months for his drug charges. Based on the Court's findings of law here, Petitioner faces the following statutory penalties:
• Counts 1, 3, 9, and 10 – A maximum of 20 years imprisonment.
• Counts 4, 6, and 7 – A mandatory minimum of 60 months, each to be served consecutive to all other counts and each other.
In order to impose a new sentence on Petitioner that is sufficient but not greater than necessary, the Court now considers the § 3553(a) factors in light of the FIRST STEP Act. Because the Court is sentencing Petitioner today, the Court may consider any and all relevant post-conviction conduct in deciding whether it may depart downward from the advisory guideline range. Cf. Pepper v. United States , 562 U.S. 476, 490, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (holding that a district court may consider "evidence of a defendant's rehabilitation since his prior sentencing" to support a downward variance from the guidelines after that initial sentence has been set aside on appeal); United States v. Davis , 679 F.3d 190, 195–96 (4th Cir. 2012) (holding that a "district court can consider other sentencing factors" when reducing a sentence after granting a Rule 35 motion). It should be noted that Petitioner makes a number of arguments on the present application of the § 3553(a) factors (ECF Nos. 225, 232), while the Government has elected to ignore the § 3553(a) factors and rely on their statutory construction argument (ECF No. 229).
First the Court considers the offense conduct relevant to the Petitioner's convictions. See ECF No. 226. Over the course of several years during the 1990s, Petitioner was involved in a long-running crack cocaine distribution conspiracy. Despite the extensive nature of the crack cocaine distribution conspiracy and Petitioner's leadership role, as well as the presence of firearms at nearly every stage of the conspiracy, there is no evidence that Petitioner engaged in or directed any gun violence in furtherance of the conspiracy. See id.
Second, Petitioner's conviction for his involvement in the crack cocaine conspiracy was not his first time in a courtroom. In fact, Petitioner had previous convictions for cocaine possession and possession of a firearm by a felon, in addition to a conviction for petit larceny and several traffic offenses. Clearly, Petitioner was on notice that his conduct involving drugs and guns was in violation of state and federal law but continued to lead the drug conspiracy that led to the conviction in the instant case. As a result, Petitioner had a Criminal History Category of III when he was sentenced.
Third, Petitioner's history and characteristics prior to his conviction are as follows. Petitioner was born on July 1, 1969 in Richmond, Virginia. Id. at ¶ 127. He had almost no relationship with his father and was primarily raised by his grandmother, though his mother and aunt also provided him with discipline. Id. Petitioner had to help provide support for his younger siblings during his adolescence. Id. at ¶ 128. Petitioner was married in 1995, though he separated from his wife very shortly afterward. Id. at ¶ 131. He has two children from this union, who are now 26 and 27 years old. Id.
Fourth, Petitioner's prison record does contain substantial evidence of his rehabilitative efforts. Though Petitioner does have a few violations on his record, they are relatively minor, and he is not considered a management problem. ECF No. 225-2. Petitioner also has a long track record of participation in programming and skill development and has been noticed as a positive influencer in the prison environment by prison staff. ECF Nos. 225-2-4. Importantly, Petitioner remains connected with his sons and hopes to continue a relationship with them and their mother when he is released from prison. ECF No. 225 at 12.
The Court understands the severity of Petitioner's conduct. Petitioner was the leader of a long-running and extensive crack cocaine distribution scheme that enlisted minors. At the same time, there is no evidence of violent conduct during the course of the conspiracy, despite the constant presence of firearms. Moreover, the Court has carefully considered Petitioner's offense conduct, as well as the overall context of his behavior. The Court must also consider sentencing disparities given that a new sentence of 229 months was issued to Petitioner's co-defendant, Dshanna Yvonne Randall. Like Randall, Petitioner has been in prison for over twenty-one years. In that time, Petitioner has improved himself, remained connected with his family, and shared his personal improvement with others. In sum, Petitioner has taken steps to reform himself into a contributing member of society. Based on all the § 3553(a) factors, the Court imposes a total sentence of 300 months imprisonment on Petitioner as follows:
• Counts 1, 3, 9, and 10: 120 months on each count, to be served concurrently with a 5 year term of supervised release.
• Count 4: 60 months, to be served consecutively with Counts 1, 3, 9, and 10, with a 3 year term of supervised release to run concurrently with the term of supervised release imposed on Counts 1, 3, 9, and 10.
• Count 6: 60 months, to be served consecutively with Counts 1, 3, 4, 9, and 10, with a 3 year term of supervised release to run concurrently with the term of supervised release imposed on Counts 1, 3, 4, 9, and 10.
• Count 7: 60 months, to be served consecutively with Counts 1, 3, 4, 6,
9, and 10, with a 3 year term of supervised release to run concurrently with the term of supervised release imposed on Counts 1, 3, 4, 6, 9, and 10.
IV. CONCLUSION
Based on the foregoing, Petitioner's motion is GRANTED. The Court now imposes a total sentence of 300 months (25 years) as follows: 120 months on Counts 1, 3, 9, and 10 with a 5 year term of supervised release; 60 months on Count 4 to run consecutively with the term in Counts 1, 3, 9, and 10 with a 3 year term of supervised release to run concurrently with the supervised release term imposed on Counts 1, 3, 9, and 10; 60 months on Count 6 to run consecutively with the term in Counts 1, 3, 4, 9, and 10 with a 3 year term of supervised release to run concurrently with the term of supervised release imposed on Counts 1, 3, 4, 9, and 10; and 60 months on Count 7 to run consecutively with the term in Counts 1, 3, 4, 6, 9, and 10 with a 3 year term of supervised release to run concurrently with the term of supervised release imposed on Counts 1, 3, 4, 6, 9, and 10.
The Clerk is DIRECTED to send a copy of this Order to the Petitioner, the United States Attorney, the United States Probation Office, the Federal Bureau of Prisons, and the United States Marshals Service.
IT IS SO ORDERED.
Kimbrough v. United States , 552 U.S. 85, 108–10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ("Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions."); United States v. Bannister , 786 F. Supp. 2d 617, 648 (E.D.N.Y. 2011) ("Overwhelming data, analyses, and judicial findings support the conclusion of a disparate racial impact in the mandatory minimum sentences for crack cocaine. Although the disparity has somewhat narrowed in the past two decades, it remains stark.").