Summary
reducing sentence of defendant responsible for 469 grams of crack cocaine, without revisiting the drug quantity determination, after considering the § 3553 factors
Summary of this case from United States v. JacksonOpinion
5:06-CR-509
2020-06-10
UNITED STATES of America v. Germaine L. HILL, Defendant.
HON. GRANT C. JAQUITH, United States Attorney for the Northern District of New York, OF COUNSEL: STEVEN D. CLYMER, ESQ., Ass't United States Attorney, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261. HON. LISA PEEBLES, Federal Public Defender for the Districts of Northern New York and Vermont, OF COUNSEL: MOLLY K. CORBETT, ESQ., Ass't Federal Public Defender, 39 North Pearl Street, 5th Floor, Albany, NY 12207.
HON. GRANT C. JAQUITH, United States Attorney for the Northern District of New York, OF COUNSEL: STEVEN D. CLYMER, ESQ., Ass't United States Attorney, 100 South Clinton Street, P.O. Box 7198, Syracuse, NY 13261.
HON. LISA PEEBLES, Federal Public Defender for the Districts of Northern New York and Vermont, OF COUNSEL: MOLLY K. CORBETT, ESQ., Ass't Federal Public Defender, 39 North Pearl Street, 5th Floor, Albany, NY 12207.
MEMORANDUM–DECISION AND ORDER
DAVID N. HURD, United States District Judge
I. INTRODUCTION
Defendant Germaine L. Hill ("Hill" or "defendant") is currently serving a 20 year term of imprisonment. He is presently incarcerated at FCI Otisville, a medium security federal correctional institution with an adjacent minimum security satellite camp and a detention center in Otisville, New York. He moves to reduce his sentence pursuant to Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018) (the "First Step Act"). The United States of America (the "Government") opposed defendant's initial pro se and subsequent counseled motion, and defendant replied in further support. The motion was taken on its submissions and without oral argument.
Hill was transferred to the lower security facility during the pendency of the motion. The Clerk is directed to update the caption accordingly.
In November 2019, the Government urged this Court to defer its decision of the pending motion until the United States Court of Appeals for the Second Circuit issued a decision in the appeal of United States v. Davis , 423 F. Supp. 3d 13 (W.D.N.Y. 2019), which was expected to definitively resolve a legal dispute relevant to the pending motion in this matter. The Davis case was argued at the Second Circuit on March 20, 2020.
Most recently, on April 21, 2020, Hill filed a supplemental emergency memorandum in support of his motion for a reduced sentence and requested this Court issue a prompt decision imposing a sentence of time served in light of the unprecedented threat posed by COVID-19.
Due to the coronavirus pandemic, the development of caselaw on the primary legal issue at play, and the factors of this particular case, it became apparent that there was no reason to continue deferring a decision based upon judicial economy. Accordingly, this Court was prepared to move forward despite the pending status of United State v. Davis . However, on June 5, 2020, as this decision was set to issue, the Second Circuit released the much anticipated Davis decision. United States v. Davis , No. 19-874, 961 F. 3d 181 (2d Cir. June 5, 2020).
Defendant has detailed the myriad of pressing concerns he faces as a diabetic in a Bureau of Prisons ("BOP") facility with the ongoing COVID-19 pandemic. See generally Def.’s Supp. Emergency Mem., ECF No. 43. Moreover, as a New York district court opined, "the COVID-19 pandemic presents an extraordinary and unprecedented threat to incarcerated individuals." See e.g. , United States v. Scparta , No. 18-CR-578, ––– F. Supp. 3d ––––, ––––, 2020 WL 1910481, at *9 (S.D.N.Y. Apr. 20, 2020) (collecting cases).
II. BACKGROUND
On December 14, 2006, a federal grand jury returned an indictment charging Hill in Count One with knowingly and intentionally possessing with intent to distribute over 50 grams of a mixture or substance containing cocaine base on October 2, 2006, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) ; in Count Two with possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) ; in Count Three with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) ; and in Count Four with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). ECF No. 5.
The indictment further alleged that Hill had two final prior convictions for felony drug offenses. Id . On August 24, 2007, the Government filed a sentencing enhancement information pursuant to 21 U.S.C. § 851 alleging that Hill had a prior final conviction for a felony drug offense, specifically that on "August 23, 1996, in Onondaga County, New York, he was convicted of criminal possession of a controlled substance/narcotic, in violation of New York Penal Law, and was sentenced to three (3) to six (6) years imprisonment." ECF No. 11. Under the applicable law, these allegations subjected Hill under Count One to a statutory mandatory minimum 20 year term of imprisonment and a supervised release term of ten years to life. 21 U.S.C. § 841(b)(1)(A) (2006).
On August 28, 2007, Hill pleaded guilty to Count One of the indictment pursuant to a plea agreement. ECF No. 12. Before sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR") that explained Hill sold in excess of 55 grams of cocaine base to an informant in addition to possessing 414 grams of cocaine base when police executed a search warrant at his residence. PSR ¶¶ 9, 10, 15. Accordingly, the Probation Office concluded that Hill was responsible for 469 grams of cocaine base. PSR ¶ 18.
Using the 2007 edition of the United States Sentencing Guidelines Manual, the Probation Office determined that Hill's base offense level was 32 under U.S.S.G. § 2D1.1(c)(4) because he possessed at least 150 grams but less than 500 grams of cocaine base. PSR ¶ 23. It added two levels under U.S.S.G. § 2D1.1(b)(1) because Hill possessed a firearm in connection with his offense of conviction, PSR ¶ 24, and subtracted three levels under U.S.S.G. § 3E1.1 for his acceptance of responsibility and a Government motion crediting his timely notice of an intent to plead guilty. PSR ¶¶ 29, 30. This resulted in a total offense level of 31. PSR ¶¶ 31, 33.
Based on Hill's criminal history he was a category V, PSR ¶ 53, which, coupled with an offense level of 31, yielded a guidelines imprisonment range of 168–210 months, PSR ¶ 73. But, because Hill was subject to a statutory 20 year mandatory minimum term of imprisonment based on the quantity of cocaine base involved in his offense of conviction and his final prior conviction for a felony drug offense, his guidelines imprisonment sentence became 240 months under U.S.S.G. § 5G1.1(b). PSR ¶¶ 72–73.
On July 17, 2008, the undersigned sentenced Hill to a twenty year (240 month) term of imprisonment followed by a ten year term of supervised release. ECF No. 17. Upon a Government motion, the Court dismissed Counts Two through Four of the indictment.
III. DISCUSSION
A. Eligibility for Relief
In 2010, Congress enacted the Fair Sentencing Act, which "altered the threshold drug quantities that trigger the penalty ranges for crack cocaine offenses located in 21 U.S.C. § 841(b)(1)." United States v. Holloway , 956 F.3d 660, 662 (2d Cir. 2020). Under Section 2 of this legislation, the threshold quantities for cocaine base that trigger the penalties in 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B), including the mandatory minimum and maximum imprisonment terms set out in those subsections, were increased from "50 grams or more" to "280 grams or more" (for the subsection (b)(1)(A) penalties) and from "5 grams or more" to "28 grams or more" (for the subsection (b)(1)(B) penalties). These amendments applied only to offenders who were sentenced after the effective date of the Fair Sentencing Act. Dorsey v. United States , 567 U.S. 260, 273, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Because Hill had committed his offense of conviction and was sentenced before the effective date of the Fair Sentencing Act, these amendments did not apply to his sentence.
In December 2018, Congress enacted the First Step Act. Section 404(b) of the First Step Act provides:
A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.
Id. § 404(b). Section 404(a) defines the term "covered offense": "In this section, the term ‘covered offense’ means 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." (internal citation omitted). The First Step Act limits its application only by preventing courts from hearing motions if (1) the sentence in question "was previously imposed or previously reduced" in accordance with the relevant provisions of the Fair Sentencing Act, or (2) if a previous motion was made under the First Step Act and denied "after a complete review of the motion on the merits." Id. § 404(c). Finally, Section 404 states that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Id.
The parties dispute whether Count One is a covered offense for which defendant is eligible for resentencing. Defendant argues Section 404 plainly applies to him because this Court previously "imposed a sentence" on him "for a covered offense," and he is moving for imposition of a reduced sentence. According to Hill, a "covered offense" is an offense for which the statutory penalty or penalties were amended by Sections 2 or 3 of the Fair Sentencing Act of 2010, without regard to offense conduct or relevant conduct. Under this straightforward theory, a court need only (1) examine the statute under which a defendant was charged, and (2) determine whether the statutory penalties for that offense were modified by the Fair Sentencing Act.
The Government opposes and contends Hill is not eligible for a sentence reduction because his offense involved in excess of 280 grams of cocaine base, and was therefore not a "covered offense." To be clear, the Government argues that the Court should assess eligibility on the basis of defendant's actual conduct , rather than the statute of conviction. Under that approach, according to Hill's own admission at his change of plea hearing and the findings in the PSR, which he did not object to, the quantity of cocaine base attributable to him was 469 grams, an amount which exceeds the revised 280 gram threshold, and thus the "statutory penalties" for defendant's conduct were not "modified" by the Fair Sentencing Act. Under the Government's interpretation, a court would need to conduct a more fact-intensive analysis to determine eligibility, looking to the drug quantity described in a defendant's PSR or a plea agreement's factual basis to determine whether the Fair Sentencing Act altered a defendant's penalty range.
Admittedly, the Government made these arguments before the Second Circuit definitively ruled on the issue. Given the procedural posture and timing of this case, the Court will not request further briefing from the parties as the Government has fully addressed why in its opinion, even if Hill is eligible, a reduction is not warranted.
As of last week, the Second Circuit had yet to squarely address "the relevance of a defendant's underlying offense conduct to the eligibility determination." Holloway , 956 F.3d at 665 n.4. It is this particular issue that the much anticipated Davis decision was expected to address. See Davis , 423 F. Supp. 3d at 16 ("[I]t is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.").
The majority of district courts in this Circuit have concluded that eligibility for relief depends on the statute of conviction, rather than the defendant's underlying conduct. See, e.g. , United States v. Bowman , No. 92 CR. 392, 2020 WL 470284, at *2 (S.D.N.Y. Jan. 29, 2020) ("The Court joins nearly every court to address the issue and bases eligibility on the offense of conviction."); United States v. Medina , No. 3:05-cr-58, 2019 WL 3769598, at *3 (D. Conn. July 17, 2019) ("[There is] overwhelming precedent that it is the statute, not the conduct, that drives a determination of First Step Act eligibility."); United States v. Williams , No. 03-CR-1334, 2019 WL 2865226, at *2 (S.D.N.Y. July 3, 2019) ("It is the statute of conviction, rather than a defendant's actual conduct, that determines a defendant's eligibility under the First Step Act."); United States v. Martinez , No. 04-CR-48-20, 2019 WL 2433660, at *3 (S.D.N.Y. June 11, 2019) ("[T]he conclusion that Martinez's violation is a ‘covered offense’ - and that he is therefore eligible for a sentence reduction under section 404 - is supported by the decisions of nearly every court to address the issue."); United States v. Rose , 379 F. Supp. 3d 223, 228–29 (S.D.N.Y. 2019) (finding Section 404(a)’s "penalties clause" modifies "Federal criminal statute" and not "violation"); United States v. Allen , 384 F. Supp. 3d 238, 241 (D. Conn. 2019) ("As a growing number of courts have concluded, it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.") (internal quotations omitted); United States v. Simons , 375 F. Supp. 3d 379, 386–87 (E.D.N.Y. 2019) (criticizing the Government's argument that the actual conduct precludes eligibility); United States v. Powell , 360 F. Supp. 3d 134, 139 (N.D.N.Y. 2019) ("The drug type and quantity used to set the statutory range under the First Step Act of 2018 is the quantity charged in the indictment and found by a jury beyond a reasonable doubt."); Davis , 423 F. Supp. 3d at 16 ("[I]t is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.").
Further, since the filing of Hill's motion to reduce, six circuits have approved the definition of "covered offense" relied on by Hill in asserting his eligibility for relief. United States v. Shaw , 957 F.3d 734, 739 (7th Cir. 2020) ("[T]he statute of conviction alone determines eligibility for First Step Act relief."); United States v. Smith , 954 F.3d 446, 449–51 (1st Cir. 2020) (finding that the actual conduct of the offense did not control eligibility or factor into the definition of "covered offense"); United States v. Jackson , 945 F.3d 315, 320 (5th Cir. 2019) ("[W]hether a defendant has a ‘covered offense’ under section 404(a) depends only on the statute under which he was convicted. If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a ‘covered offense.’ "); United States v. McDonald , 944 F.3d 769, 771–72 (8th Cir. 2019) ("The First Step Act applies to offenses, not conduct, and it is [the defendant's] statute of conviction that determines his eligibility for relief."); United States v. Beamus , 943 F.3d 789, 791–93 (6th Cir. 2019) (per curiam) ("[The defendant] was convicted of an offense for which the Fair Sentencing Act modified the statutory penalty ...."); United States v. Wirsing , 943 F.3d 175, 182, 185–86 (4th Cir. 2019) ("Defendant's statute-of-conviction theory of eligibility is correct.").
Most significantly and relevant, of course, is that in determining what constitutes a "covered offense" under Section 404(a), the Second Circuit just joined the majority of courts in concluding that eligibility for relief depends on the statute of conviction , rather than the defendant's underlying conduct. As the Davis Court recently explained: "The definitional language ‘a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 ... of the Fair Sentencing Act’ conditions eligibility on a defendant's statute of conviction, not the defendant's ‘actual’ conduct." Davis , 961 F. 3d at 183.
The Circuit clarified:
[U]nder Section 404(a) of the First Step Act, if the statutory penalties associated with a particular "Federal criminal statute" were modified by Section 2 or 3 of the Fair Sentencing Act, then any defendant sentenced for violating that "Federal criminal statute" has been sentenced
for a "covered offense." Section 404(a) thus delineates its coverage by reference to a category of statutory offenses for which defendants might be sentenced, not the virtually infinite set of specific actions that might give rise to those sentences. In other words, it is a defendant's statutory offense, not his or her "actual" conduct, that determines whether he has been sentenced for a "covered offense" within the meaning of Section 404(a), and is consequently eligible for relief under Section 404(b).
Id. at 189–90. Accordingly, Hill is eligible to seek relief under Section 404 of the First Step Act because the penalty associated with his statute of conviction, 21 U.S.C. § 841(b)(1)(A), was among those amended by the Fair Sentencing Act.
B. Scope of Relief
Because defendant satisfies the First Step Act eligibility requirements, this Court has the authority, but is not required, to impose a reduced sentence for his cocaine base conviction. Section 404(b) grants the court this discretion: "A court that imposed a sentence for a covered offense may ... impose a reduced sentence as if Section 2 or 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed." This language constitutes a broad grant of resentencing authority with only one limitation that arises from the "as if" clause—that is, a court cannot reduce the sentence below the statutory mandatory minimum that would have applied if the Fair Sentencing Act had been in effect when the defendant committed the offense. As applied here, that means this Court cannot impose a reduced sentence of less than ten years.
Aside from that limitation, a court has discretion to determine whether a reduced sentence is appropriate, and if so, to what extent. In exercising that discretion, the parties agree a court must comply with the well-known factors enumerated in 18 U.S.C. § 3553(a), including post-sentencing developments, both favorable and unfavorable to the defendant. See, e.g. , Rose , 379 F. Supp. 3d at 231 ("This Court concludes that the First Step Act authorizes the Court to re-evaluate § 3553(a) factors in light of post-sentencing factual developments."); Powell , 360 F. Supp. 3d at 140 (considering defendant's rehabilitation and disciplinary history).
Defendant asserts he has served over 162 months as a model inmate, peer counselor, and with only two disciplinary infractions over the length of his imprisonment. The Government urges consideration of the quantity of cocaine base involved in Hill's offense, his possession of a firearm, and his extensive criminal history when deciding whether and to what extent to reduce his sentence.
The Government argues that given the known quantity of cocaine base involved in Hill's offense, he would have received the same sentence he is now serving if the Fair Sentencing Act had been in effect at the time of the original sentencing and the Government sought an indictment consistent with the Fair Sentencing Act's requirements. This argument fails because it assumes that Hill would have been charged with and convicted of a 280 gram offense if his offense had occurred after 2010. Other courts have rejected similarly speculative arguments by the Government. See Rose , 379 F. Supp. 3d at 236 ("The Court cannot simply assume that the Government would have been successful in proving an indispensable element of a criminal offense ... [a] further illustration that historical revisionism is an inappropriate judicial exercise."); see also United States v. Stanback , 377 F. Supp. 3d 618, 624 (W.D. Va. 2019) ("The retroactive assumption suggested by the government simply is too speculative a basis on which to determine Stanback's eligibility for a sentence reduction. Thus, this court declines to assume that Stanback would have been charged and convicted of possessing more than 280 grams of cocaine base if the Fair Sentencing Act had been in effect at the time he was convicted."); United States v. Dodd , 372 F. Supp. 3d 795, 799 (S.D. Iowa 2019) ("Many things might have been different if this crime had been committed and charged years later or the Fair Sentencing Act had been passed years earlier, and the Court is unwilling to engage in a series of hypotheticals about what might have happened had aspects of the case been fundamentally altered.").
Granting relief here does not, as the Government contends, create a "windfall" nor "unwarranted sentencing disparities," Gov't's Resp. in Opp'n, ECF No. 40, 21–22, because the comparison group consists of other defendants charged with and convicted of possessing with intent to distribute 50 grams or more of cocaine base. Whatever "disparity" that results is the remedy that Congress intended when it passed the First Step Act.
After a review of the record, this Court finds that a reduction of defendant's sentence is warranted. The parties recognize that to move forward with a reduction, a court must start with the statutory and guidelines penalties applicable to Hill "as if" the Fair Sentencing Act had been in effect when he committed his offense. The parties also agree that if Hill is eligible under the First Step Act, his guidelines range is 140 to 175 months with a mandatory minimum of 120 months (ten years) and a supervised release term of eight years to life. See Def.’s Mot., ECF No. 39–1, 9; Gov't's Resp. in Opp'n, 22–23 (explaining guidelines calculation).
Considering the 18 U.S.C. § 3553(a) factors, there is no question that the offense in this case is very serious—the defendant distributed a substantial amount of drugs over a substantial period of time. Moreover, Hill possessed a loaded handgun in the location where police found the 414 grams of cocaine base. PSR ¶ 154. Furthermore, the original sentence is also extremely serious. The undersigned sentenced Hill to 20 years, which was above the guidelines range at the time, due to the statutory 20 year mandatory minimum based on the quantity of cocaine base involved in his offense of conviction and his final prior conviction for a felony drug offense. Hill has been imprisoned since November 21, 2006, and has already served over thirteen and a half years in prison. According to BOP records, he is scheduled to be released on January 29, 2024.
With respect to the history and characteristics of defendant, he is now 48 years old and has been and continues to be an exemplary inmate. He has done well enough to earn 675 days of good time credit thus far, as of June 9, 2020. His record in prison also suggests that he is a good prospect for rehabilitation. He has devoted himself to education, vocational training, and caring for his fellow inmates. He completed his GED in 2012 and completed courses of study with the Stratford Career Institute for Psychology/Social Work (2015), Health Care Aide (2016), and Fitness and Nutrition (2018). He has also acted as an Inmate Companion in the Suicide Cadre performing suicide watches. Hill also completed vocational training in Commercial, Residential, and Industrial Housekeeping with the Department of Labor (2015) and VT Concrete from Century College (2016).
Defendant attached his certificates of completion, transcripts, and a memorandum from BOP mental health providers to his original pro se motion. ECF No. 34.
Defendant's certificates of completion and his BOP transcript demonstrate his commitment to rehabilitation, education, and preparation for re-entry into society with a solid foundation for employment and positive contribution to his community. Moreover, he has family in Upstate New York who offered their home as his place of residence. While Hill has had two minor infractions in prison, there have been none since 2013. See Def.’s Mot., 10. Neither of these transgressions should overshadow Hill's dedication to learning, his support of suicidal inmates, and his preparation to enter society.
Hill is eligible and deserving of a sentence reduction. To date, Hill has served 13 years, 6 months, and 21 days. A time served sentence (13 years, 6 months, and 21 days) would avoid the disparity between Hill and similarly situated offenders prosecuted today. It would also be "sufficient, but not greater than necessary" to serve the other 18 U.S.C. § 3553(a) objectives. The Government does not identify any persuasive § 3553(a) factor that would warrant a different outcome. Instead, its primary argument rests on Hill's relevant conduct at the time of commission of the crime and his criminal history, the majority of which is over 23 years old.
On balance, the Court will reduce Hill's sentence to time served (13 years, 6 months, and 21 days) on Count One, and reduce his term of supervised release to eight years, subject to the same conditions as the original term of supervised release. That sentence is sufficient but not greater than necessary to comply with the purposes set forth in § 3553(a)(2).
IV. CONCLUSION
Hill has already served 13 years, 6 months, and 21 days as a model inmate, peer counselor, and with only two disciplinary infractions over the length of his imprisonment.
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. Defendant's motion to reduce his sentence will be granted. As explained above, his sentence will be reduced to time served on Count One, to be followed by a term of eight years supervised release subject to the same conditions as his original sentence of supervised release.
Finally, due to the COVID-19 pandemic, the Government is ordered to release Hill from custody immediately, or within 48 hours of the issuance of this Memorandum–Decision and Order, and without requiring a 14 day quarantine within a BOP facility. Defendant has the ability to home quarantine for 14 days and being required to do so within BOP custody will only put him at further risk of infection.
Therefore, it is
ORDERED that
1. Defendant Germaine L. Hill's motion pursuant to the First Step Act of 2018 to reduce his 240 month term of imprisonment and 120 month term of supervised release is GRANTED;
2. Defendant Germaine L. Hill's current 240 month term of imprisonment is REDUCED to a term of TIME SERVED (13 years, 6 months, and 21 days) and his current 120 month term of supervised release is REDUCED to a term of 96 months; and
3. The Government is ORDERED to release defendant Germaine L. Hill from custody immediately. To protect defendant, his family, and the public, he is ordered to self-isolate for 14 days in his home.
IT IS SO ORDERED.