Opinion
CAUSE NO. 1:19-CR-67 DRL
2023-06-07
UNITED STATES of America, Plaintiff, v. Justin DAVIS, Defendant.
Brent A. Ecenbarger, Sarah E. Nokes, Government Attorneys, U.S. Attorney's Office, Fort Wayne, IN, for Plaintiff.
Brent A. Ecenbarger, Sarah E. Nokes, Government Attorneys, U.S. Attorney's Office, Fort Wayne, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
On July 23, 2019, law enforcement discovered a loaded firearm, cocaine, and various tools of the drug trade during a traffic stop of Justin Davis. He pleaded guilty to possessing with the intent to distribute cocaine, see 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of drug trafficking, see 18 U.S.C. § 924(c), and unlawfully possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1).
SENTENCING GUIDELINES
The court must first calculate the guideline range correctly, then decide what sentence is reasonable for this defendant. Dean v. United States, 581 U.S. 62, 67, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017); United States v. Swank, 37 F.4th 1331, 1334 (7th Cir. 2022). The 2021 guidelines apply. See Peugh v. United States, 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).
A. Objection to Inclusion of Relevant Conduct in Drug Calculation (¶¶ 25-28).
Mr. Davis's guideline calculation attributes 226.8 grams of crack cocaine and starts him at offense level 28. He challenges this calculation because it reflects drug quantities other than those seized on the day of his initial arrest. Mr. Davis argues his offense level should only reflect the quantity of drugs found during the July 2019 traffic stop because the superseding indictment does not include prior dates or conduct, nor was he charged with a conspiracy or criminal enterprise.
The government has the burden to establish the drug quantity with reliable evidence. See United States v. Gibbs, 26 F.4th 760, 765 (7th Cir. 2022). The court "considers quantities of drugs that are not specified in the count of conviction but were part of the same course of conduct or common scheme or plan as the offense of conviction." United States v. Martinez, 289 F.3d 1023, 1027 (7th Cir. 2002) (citing U.S.S.G. § 1B1.3). When the drug amount seized doesn't capture the offense's true scale, the court may approximate the drug quantity, U.S.S.G. § 2D1.1 app. n.5, albeit based on reasonably accurate information, United States v. Gibson, 996 F.3d 451, 464 (7th Cir. 2021).
"Self-incriminating statements . . . [that were] clearly against his penal interest, have long been considered reliable enough for use at trial . . . , so we cannot say that they are too unreliable for use at sentencing." United States v. Tankson, 836 F.3d 873, 882 (7th Cir. 2016). Evidence may also include drug prices, financial records, the size or capability of the any drug laboratory, and "similar transactions in controlled substances by the defendant." U.S.S.G. § 2D1.1 app. n.5. Though drug quantity calculations aren't an "exact science," the guidelines permit "reasonable estimation," not "nebulous eyeballing." Gibson, 996 F.3d at 464.
During the traffic stop, a little over 2 ounces of cocaine (58.3 grams) and less than 1 ounce of crack cocaine (2.4 grams) was seized. Mr. Davis told law enforcement that he had been selling 4-5 ounces of crack per week and had recently purchased approximately 2 ounces of crack for $2,000 in Chicago. He sold crack in $20 rock quantities (a portion of 1 gram) and did not have larger quantity customers. He possessed $1,073 in currency at the time of his arrest (approximately 50 deals). Based on his admission, the presentence report estimated two weeks in which he distributed 4 ounces per week (totaling 8 ounces) (1 ounce = 28.35 grams; 8 × 28.35 grams = 226.8 grams).
The government has met its burden; indeed, this amount reflects a conservative calculation for several reasons. First, though Mr. Davis never said when he began selling crack, he spoke of multiple prior deals. Second, he admitted that he sold crack to support his own habit of 1-2 ounces, a drug he used daily for at least a year before his arrest; at $20 per rock he would need to conduct multiple sales to support his longstanding $4,400 monthly drug habit (the majority of which was for crack cocaine). Third, the passenger in Mr. Davis's vehicle corroborated his distribution and told law enforcement she bought $20 rocks of crack from him twice a week and had done so for quite some time; and she knew numerous people who did the same. Fourth, Mr. Davis admitted to having a gun during his drug deals, and he admitted to having secured his last firearm two months beforehand. These facts preponderantly explain that using his admission over a mere two-week period was conservative indeed. The court overrules Mr. Davis's objection to ¶¶ 25-28, though the court accounts for his greater acceptance of responsibility under 18 U.S.C. § 3553(a)(1).
B. Sentencing Guidelines Calculation.
Accordingly, the court adopts as its findings ¶¶ 1-234 of the presentence report. Mr. Davis starts at level 28 because he is responsible for at least 196 grams but less than 280 grams of cocaine base (crack). U.S.S.G. §§ 2D1.1(a)(5), (c)(6). The adjusted offense level for count three (unlawful possession of a firearm as a felon) is nine or more levels less serious than this separate drug activity group with the highest offense level, thus disregarded. U.S.S.G. § 3D1.4(c). His clear and timely acceptance of responsibility reduces his offense level to level 25. U.S.S.G. § 3E1.1.
The sentencing guidelines assess six criminal history points and place Mr. Davis in criminal history category III. U.S.S.G. chap. 5A. There the sentencing guidelines recommend a sentencing range of 70 to 87 months on counts one and three, U.S.S.G. chap. 5A, below the statutory maximum of twenty years (240 months), 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and ten years (120) months, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), respectively. On count two, the guidelines recommend the minimum term of imprisonment required by statute—five years—to run consecutive to counts one and three. 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(A)(i); U.S.S.G. § 2K2.4(b).
Under the Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313 (2022), the increased statutory maximum within 18 U.S.C. § 924(a)(8) for § 922(g)(1) crimes, effective June 25, 2022, doesn't apply to Mr. Davis. See U.S. Const. art. 1, § 9, cl. 3; Peugh, 569 U.S. at 538-39, 133 S.Ct. 2072; Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).
DISCUSSION
The court decides the sentence under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).
Both sides ask the court to disregard the crack cocaine guideline calculation and vary by using the calculation for powder cocaine. After all, notwithstanding Mr. Davis's admission, law enforcement seized more powder cocaine than crack cocaine. The criminal code penalizes offenses involving cocaine base (crack) and powder cocaine at roughly an 18:1 penalty differential—punishing crack cocaine offenses more harshly than powder cocaine. An offender could have eighteen times less crack cocaine and still be subject to the same statutory minimum sentence as someone with powder cocaine. Compare 21 U.S.C. § 841(b)(1)(A)(ii) (5000 grams of cocaine powder for 10-year minimum) with § 841(b)(1)(A)(iii) (280 grams of crack for same sentence). The sentencing guidelines currently co-opt this penalty ratio—the amount of powder cocaine needed to trigger a certain offense level is eighteen times higher than the amount of crack cocaine needed to trigger the same offense level.
To be sure, the court must calculate the guideline range correctly, as the guidelines are plainly written. See United States v. Severson, 569 F.3d 683, 691 (7th Cir. 2009). Though the guidelines often pose the best hope, on a national basis, for avoiding unwarranted sentencing disparities among similar defendants, see 18 U.S.C. § 3553(a)(6), the court has the discretion to "conclude that the crack/powder sentencing ratio [is] greater than necessary to achieve sentencing goals," United States v. Morris, 775 F.3d 882, 887 (7th Cir. 2015); accord Spears v. United States, 555 U.S. 261, 265-66, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 107-08, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); see also Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010).
Today, both sides contend that the 18:1 penalty ratio between the two cocaine forms rests on bad policy and creates a sentencing disparity between crack and powder offenses. In December 2022, the Department of Justice (DOJ) implemented a new policy of advocating for a "sentence consistent with the guidelines for powder cocaine rather than crack cocaine." DOJ, Memorandum for All Federal Prosecutors: Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases 4-5 (2022). This policy is consistent with the DOJ's advocacy for the passage of the EQUAL Act, which would eliminate the 18:1 penalty ratio used to establish statutory minimums—implemented by Congress in 2010 after deciding the previous 100:1 ratio was too severe. See DOJ, Statement of the U.S. Department of Justice Before the Committee on the Judiciary United States Senate for a Hearing Entitled Examining Federal Sentencing for Crack and Powder Cocaine (2021) (DOJ 2021 Statement). To what, we don't know.
Mr. Davis is responsible for 226.8 grams of crack cocaine, and that sets his base offense level at 28. Both sides invite a variance: at least 200 grams to 300 grams of powder cocaine would result in offense level 18 and a comparator range of 30-37 months for reference.
The 18:1 penalty ratio was embedded in federal law in 2010 when Congress passed the Fair Sentencing Act for statutory penalties. The Sentencing Commission followed suit. Punishing crack cocaine more harshly than powder cocaine was thought wise because crack cocaine is more addictive, crack cocaine offenders have a higher risk of recidivism, and crack cocaine distribution is often associated with violent conduct. Those advocating for eliminating the ratio now find these reasons less compelling—not compelling enough to warrant differential treatment in penalties between crack and powder cocaine offenses.
For example, cocaine in any form produces similar physiological and psychotropic effects; but powder cocaine, because it usually is snorted, poses less risk of addiction to the typical user than crack cocaine. See Nat. Inst. on Drug Abuse, Cocaine DrugFacts (April 2021). From the latest science, it seems how the drug is ingested is what differentiates its effect on the body, not any pharmacological differences between the two. See DOJ, 2021 Statement. There is still a difference: the typical method of ingesting crack cocaine produces a quicker high, risking easy addiction as compared to the typical means of ingesting powder cocaine. See Nat. Inst. on Drug Abuse, Cocaine DrugFacts (April 2021); DOJ, 2021 Statement. Some argue this difference is nominal and hard to quantify.
There is also an increased risk of recidivism with crack cocaine offenders. Crack cocaine offenders recidivate at the highest rate (60.8 percent) of any drug type, whereas powder cocaine offenders recidivate at the lowest rate (43.8 percent). See United States Sent. Comm'n (USSC), Recidivism Among Federal Drug Trafficking Offenders 3 (2017). Powder cocaine offenders received safety valve relief more often than did all drug trafficking offenders (39.2 percent), and crack cocaine offenders received safety valve relief less often than did all drug trafficking offenders (20.5 percent). Id. at 25, 39. Only a small percentage of crack cocaine offenders (19.6 percent) have little to no prior criminal history, whereas powder cocaine offenders more often come to their offense with a cleaner slate (60.8 percent). See USSC, Quick Facts: Crack Cocaine Trafficking Offenses (2020); USSC, Quick Facts: Powder Cocaine Trafficking Offenses (2020). And crack cocaine offenders are more likely to be career offenders than their counterpart (13.6 percent compared to 4.2 percent). Even proponents of eliminating the penalty ratio acknowledge this recidivism risk exists, but they argue that it falls short of warranting an 18:1 differential in the penalty structure. These same proponents contend that this recidivism risk can be addressed by an offender's criminal history score—but that's only part of the answer, as that addresses the historical and, to some extent, how much of history is prelude, but not all the prospective risk that can be gleaned from a holistic view of each offender.
The penalty structure is also based on the association of crack cocaine offenses with violent conduct. "This is largely because crack cocaine is sold at the retail-level, and violence is more often associated with retail sales." DOJ, 2021 Statement. In 2020, for instance, 39.3 percent of crack cocaine offenses were enhanced for possessing a weapon, whereas only 19.6 percent of powder cocaine offenses received the same enhancement. See USSC, Quick Facts: Crack Cocaine Trafficking Offenses (2020); USSC, Quick Facts: Powder Cocaine Trafficking Offenses (2020). Proponents of eliminating the ratio argue that, to the extent that the 18:1 penalty ratio accounts for this conduct, it sweeps too broadly by treating all crack cocaine offenders as if they engaged in the aggravating conduct. They argue the best way to address violent conduct associated with any offense is through sentencing enhancements when such circumstances are actually present—or, in this court's eyes, through the lens of § 3553(a) whether the guidelines do or not.
Proponents of eliminating the penalty ratio also argue that punishing crack cocaine more harshly than powder cocaine creates sentencing disparities in two ways—first by punishing low-level dealers more harshly than the major drug traffickers and sellers, and second by imbuing the system with disparate treatment by race.
Powder cocaine is more often associated with major drug traffickers or kingpins due to its purity and distributable nature, whereas crack cocaine (derived from powder cocaine and then mixed with water and typically baking soda) is often associated with low-level dealers due to its low cost and thus greater accessibility. In practice, this structure can punish low-level dealers with smaller quantities of less pure drugs more harshly than traffickers with larger quantities of purer drugs. The DOJ provides the example that "a high-level dealer caught with three-quarters of a pound of powder cocaine that he plans to convert into an equivalent amount of crack cocaine may face a lower sentence than the street-level dealer caught with an ounce of already-converted crack cocaine." See DOJ, 2021 Statement.
For example, federal crack cocaine offenders were sentenced to an average of 74 months with a median drug quantity ranging between 28 and 112 grams of crack cocaine. USSC, Quick Facts: Crack Cocaine Trafficking Offenses (2020). In comparison, federal powder cocaine offenders received on average a 66-month sentence with a median drug quantity of 3,500 and 5,000 grams of powder cocaine. USSC, Quick Facts: Powder Cocaine Trafficking Offenses (2020).
Proponents of eliminating the penalty ratio find that the heightened penalties for crack cocaine offenses creates a racial disparity in sentencing because crack cocaine offenders, who are statistically more likely to be Black, are punished more harshly than similarly situated (non-Black) powder cocaine offenders, or even those responsible for larger quantities of drugs. See USSC, Quick Facts: Crack Cocaine Trafficking Offenses (2020) (77.1 percent Black, 15.9 percent Hispanic, 6.3 percent White); USSC, Quick Facts: Powder Cocaine Trafficking Offenses (2020) (64.4 percent Hispanic, 27.3 percent Black, and 7 percent White). Another fair concern is whether this ratio and its disproportional effect on Black offenders fosters disrespect for and lack of confidence in the criminal justice system.
These are all important policy considerations for Congress in deciding whether to restructure the penalty scheme for crack cocaine and powder cocaine. In September 2021, the House of Representatives passed the EQUAL Act with bipartisan support. The bill, though garnering some bipartisan support in the Senate, was never voted out of the Senate Judiciary Committee. In December 2022, there were discussions during omnibus negotiations about reducing the penalty ratio to 2.5:1 but it was not included in the final bill. The bill died when the 117th Legislative Session concluded on January 3, 2023. In February 2023, the EQUAL Act was reintroduced into the House and Senate and referred to various congressional committees. There the bill remains.
Congress is the policymaking body. Notably, despite discussions around the EQUAL Act, the Sentencing Commission declined to include in its most recent proposed amendments to the sentencing guidelines (unanimously approved in October 2022) the elimination of the 18:1 penalty ratio. What the advisory guidelines say is but guidance; but the court is uninclined to presage the wisdom of Congress. Several courts adhere to the 18:1 penalty ratio between crack cocaine and powder cocaine, with a handful of others who have not. Merely adopting the DOJ's new policy wholesale could create unwarranted sentencing disparities with past offenders and even with future offenders if the policy is withdrawn by Attorneys General to come. The court institutionally must look well beyond just the policy of the day. After all, often the "best way to curtail unwarranted disparities is to follow the [g]uidelines, which are designed to treat similar offenses and offenders similarly." United States v. Sanchez, 989 F.3d 523, 541 (7th Cir. 2021) (quoting United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009)).
Several district courts adhere to the guideline ratio. See, e.g., United States v. McIntyre, 495 F. Appx. 714, 715-16 (7th Cir. 2012) (reviewing E.D. Wis.) (upholding lower court's decision to apply the 18:1 penalty ratio in the guidelines); United States v. Matthews, 701 F.3d 1199, 1204-05 (7th Cir. 2012) (reviewing E.D. Wis.) (holding that lower court's decision not to vary from the 18:1 penalty ratio did not result in unwarranted sentencing disparity); United States v. Haley, 554 F. Appx. 526, 526 (7th Cir. 2014) (reviewing W.D. Wis.) (acknowledging lower court's refusal to use its discretion to vary from the guidelines); United States v. Blackman, 830 F.3d 721, 728 (7th Cir. 2016) (reviewing N.D. Ill.) (lower court appropriately addressed defendant's 18:1 ratio challenge by finding that it did not provide a strong enough mitigating factor); United States v. Petty, 467 F. Appx. 520, 522 (7th Cir. 2012) (reviewing W.D. Wis.) (holding that lower court's use of the 18:1 guidelines ratio did not render defendant's sentence per se unreasonable). A handful of district judges have not. See, e.g., United States v. Purham, 2016 WL 659652, at *1, 2016 U.S. Dist. LEXIS 19756, 2-3 (C.D. Ill. Feb. 18, 2016) (referencing defendant's initial sentencing where the court cited the 18:1 sentencing ratio to impose a sentence below the guidelines range); United States v. Williams, 788 F. Supp.2d 847, 890 (N.D. Iowa 2011) (rejecting the current 18:1 ratio on categorical, policy grounds); United States v. Diaz, 2013 U.S. Dist. LEXIS 11386, 2 (E.D.N.Y. Jan. 28, 2013) (stating that the court will give almost no weight to the guidelines cocaine range because of fundamental policy disagreements with it); United States v. Cabrera, 567 F. Supp.2d 271, 275 (D. Mass. 2008) (varying downward and rejecting the guidelines' cocaine range because of "the over-emphasis on quantity and the under-emphasis on role in the offense").
That said, the policy discussion occurring in Congress reveals several factors that the court can, and frankly often does, and will, address in reaching a sentence under § 3553(a). The sentencing factors—for instance, 18 U.S.C. §§ 3553(a)(1) and (a)(4)—already permit the court, when circumstances are appropriate, to account for a "lesser role" or perhaps a "greater role." Recidivism may be considered in a variety of forms—the offender's characteristics and history, even the measure of deterrence or incapacitation that may be needed. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B). These are but examples, but they illustrate that the court never just presumes the guideline range to be reasonable, see United States v. Armand, 856 F.3d 1142, 1145-46 (7th Cir. 2017), and instead treats "every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue," Pepper v. United States, 562 U.S. 476, 487, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). The more thoughtful question is whether the rationales that undergird the penalty ratio apply here. In considering this, though the court is not inclined to ignore wholesale certain realities of crack cocaine offenses, much less the will of Congress, there is some cause for variance here. The more thoughtful question is whether the rationales that undergird the penalty ratio apply here.
Having abstained from serious criminality and drug use for over fourteen years and any criminality for seven years, Mr. Davis's resurgence to these offenses in 2019 is unfortunate. See 18 U.S.C. § 3553(a)(1). At age 65, his criminal history is far from spotless—40 convictions spanning 25 years, including 11 drug convictions and a mixture of other serious and less serious offenses. But his drug convictions ended in 2005 (until now), and his fourteen years without substance abuse (2004-2018) overlap his hiatus from serious criminal conduct. During this time, he got married, maintained stable employment, and even started his own transportation company. A fourteen-year track record—with no serious reported contacts with the criminal justice system after countless before—proves mitigating. In addition, he has no prior drug distribution or firearm offenses. His history more so demonstrates an enduring battle with drug addiction than experienced distribution, coupled most recently with outside stressors. See id.
In 2018, Mr. Davis was driven back to the demons he had worked to overcome due to his wife's drug abuse, her mental health issues, ailing condition, an eventual death, and Mr. Davis's own health concerns. He describes his decision to do drugs again as "foolish." Before his arrest, Mr. Davis was using crack cocaine and heroin daily, spending on average $4,400 a month. See 18 U.S.C. § 3553(a)(1). He knew how to get drugs in Chicago, and he dealt 4-5 ounces per week. He wasn't a major trafficker or kingpin, but he also wasn't peddling negligible drug amounts. And his amount is decidedly conservative. A sentence that promotes greater respect for the law and protects the public is warranted. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(C).
Things spiraled. In mid-2019, Mr. Davis was entrenched more deeply than just personal use. He was dealing crack cocaine and emboldening his conduct with a firearm for protection. Quite dangerously, he married firearms and drugs—a pairing this court takes seriously. See 18 U.S.C. §§ 3553(a)(1)(A), (a)(2)(C). On this record, and unlike the tendency of certain crack cocaine offenses, no actual violence was used, though drug dealing in public places certainly invites the risk, especially with the presence of a loaded firearm in his pocket and drugs in the other. See 18 U.S.C. §§ 3553(a)(1), (a)(6). And Mr. Davis made it clear he "would let loose" with the firearm. After his initial arrest for this offense and while on bond, two additional firearms were discovered in his residence. See 18 U.S.C. § 3553(a)(2)(B). One rationale behind the penalty differential for crack cocaine offenders was thus present, though in fairness the § 924(c) mandatory minimum sentence of five years materially addresses it.
Recidivism remains a proven worry of crack cocaine offenders, and that worry remains for Mr. Davis too. For someone with eleven prior drug convictions, the risk remains real notwithstanding his advancing age and health condition, particularly when he now has escalated to drug dealing and firearms. See 18 U.S.C. § 3553(a)(2)(B); USSC, Recidivism of Federal Firearms Offenders Released in 2010 6, 52, 56 (2021) (71.5 percent rearrest rate for CHC III firearm offenders) (31.4 percent rearrest rate for firearm offenders released over age 59); USSC, Recidivism of Federal Drug Trafficking Offenders Released in 2010 32 (2022) (27.5 percent rearrest rate for drug trafficking offenders in CHC III released over age 60), USSC, Recidivism Among Federal Drug Trafficking Offenders 48 (15.8 percent rearrest rate for crack cocaine offenders released over age 60).
Recidivism often decreases with age, but age can cut both ways. USSC, Older Offenders in the Federal System 8 (2022) (quoting United States v. Pacheco-Martinez, 791 F.3d 171, 180 (1st Cir. 2015)). To that point, he committed these offenses in his 60s; so, even with a respite from criminal activity and his advancing age, he has proven that risk still exists, though it isn't as potent as someone much younger or someone who hasn't proven that he can live a law-abiding life. Mr. Davis has many prosocial relationships that can help ground him upon his release. See 18 U.S.C. § 3553(a)(1). He maintains good relationships with his siblings, children, and grandchildren. These relationships could aid a fruitful life; even Mr. Davis notes that bad company will corrupt good character, and that is what happened here. He has lived a law-abiding life. He did it for over a decade. He could do so again. He has his GED and has been a successful and legitimate business man, though his current debts will be a strain. His health condition isn't so extraordinary that the Bureau of Prisons cannot address it, or cause for greater variance.
Avoiding unwarranted sentencing disparities is an important factor today, and Mr. Davis's sentence will achieve this end. See 18 U.S.C. § 3553(a)(6). As much as revisionists to the 18:1 penalty ratio note, based on statistics, that crack cocaine offenders receive disparately higher punishment, when one slices the data more specifically to Mr. Davis that seems not to bear out statistically. Nationally in 2020-2021, and without accounting for drug quantities, the average imprisonment length for male, CHC III crack cocaine traffickers over age 60 was 59 months, and 92 months for powder cocaine traffickers. See USSC, Interactive Data Analyzer (visited May 31, 2023). Based on all sentencing factors, a guideline sentence on counts one and three would work an unwarranted sentencing disparity, but so would a 30-month sentence (a variance of eight levels). See also USSC, Quick Facts: Crack Cocaine Trafficking Offenses (2020) (federal crack cocaine offenders in 2020 were sentenced to an average of 74 months with a median drug quantity ranging between 28 and 112 grams of crack cocaine). Given all § 3553(a) factors, a 48-month sentence on counts one and three to be served concurrent to one another, and 60 months on count two to run consecutive (totaling 108 months) is sufficient but not greater than necessary. Today's sentence will in no small measure be Mr. Davis's longest sentence, and its certainty and duration will promote federal sentencing goals.
The court must impose a supervised release term of at least 3 years on count one, 21 U.S.C. § 841(b)(1)(C); U.S.S.G. § 5D1.2(c) (recommending 3 years), may impose a term of not more than 5 years on count two, 18 U.S.C. § 3583(b)(1); U.S.S.G. § 5D1.1(a)(1) (recommending 2 to 5 years), and may impose a term of not more than 3 years on count three, 18 U.S.C. § 3583(b)(2); U.S.S.G. § 5D1.2(a)(2) (recommending 1 to 3 years). A term of 3 years on each count to run concurrently is appropriate. 18 U.S.C. § 3624(e).
Mr. Davis cannot pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 on each count is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Justin Davis, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for 48 months on counts one and three to run concurrently to one another and 60 months on count two to run consecutive to the other two counts (thus totaling 108 months).
Under 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility where he may be located as reasonably close to his family in Chicago, Illinois.
Upon release from prison, the defendant will be placed on supervised release for a term of 3 years on each count to run concurrently. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 235-248 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading in open court of these supervisory conditions. The court directs the probation officer to provide the defendant with a written statement of all conditions.
The court imposes no fine. The defendant must pay to the United States a special assessment of $100.00 on each count, which is due immediately.
The court makes the preliminary order of forfeiture final as to this defendant and will await a motion as to the interests of other parties to enter an otherwise final order.
The court grants the government's oral motion to dismiss the original indictment. See United States v. Brown, 973 F.3d 667, 698 (7th Cir. 2020) (rejecting idea that "a superseding indictment zaps an early indictment to the end that the earlier indictment somehow vanishes into thin air").
SO ORDERED.