Opinion
Criminal Action No. 3:06-CR-8
09-01-2020
UNITED STATES of America, Plaintiff, v. Cecil RAY, Jr., Defendant.
Paul T. Camilletti, William J. Powell, U.S. Attorney's Office, Martinsburg, WV, for Plaintiff. Jenny R. Thoma, Federal Public Defender Office, Wheeling, WV, for Defendant.
Paul T. Camilletti, William J. Powell, U.S. Attorney's Office, Martinsburg, WV, for Plaintiff.
Jenny R. Thoma, Federal Public Defender Office, Wheeling, WV, for Defendant.
ORDER GRANTING RECONSIDERATION AND GRANTING REDUCTION UNDER THE FIRST STEP ACT
JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
Pending before this Court is Defendant's Motion for Reconsideration, or in the Alternative, Notice of Appeal [Doc. 534]. This Court will grant reconsideration inasmuch as this Court made two (at least) errors in ruling on defendant's earlier Motion for Imposition of a Reduced Sentence Pursuant to Section 404 of the First Step Act. First, by analyzing the Motion under 18 U.S.C. § 3582(c)(2), rather than § 3582(c)(1)(B), see United States v. Wirsing , 943 F.3d 175, 183-85 (4th Cir. 2019). Second, this Court erroneously deemed Count 8 to not be a covered offense, see United States v. Woodson , 962 F.3d 812, 817 (4th Cir. 2020).
The First Step Act applies the relief provided in the Fair Sentencing Act of 2010, which reduced the disparity in the treatment of crack and powder cocaine offenses, retroactively to eligible defendants. Under the First Step Act, "a court that imposed a sentence for a covered offense" may "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 . at § 404(b).
To be eligible for a reduced sentence under the First Step Act, a defendant's sentence must not have been previously imposed or reduced in accordance with Sections 2 and 3 of the Fair Sentencing Act. Id . at § 404(c). In addition, a sentence may not be reduced if the defendant has made a previous motion for a reduction under the First Step Act that was denied on the merits. Id . Furthermore, a court is not required to reduce a sentence under the First Step Act, but may do so in its discretion. Id .
A "covered offense" is defined as "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." United States v. Wirsing , 943 F.3d 175, 185 (4th Cir. 2019).
The Fourth Circuit has confirmed that any sentence reduction under the First Step Act should be implemented pursuant to 18 U.S.C. § 3582(c)(1)(B). Wirsing , 943 F.3d at 183-85.
The Fourth Circuit has made it clear that a reviewing court may not look to any stipulation or the relevant conduct, it is the drug quantity charged in the indictment that controls. United States v. Laurey , 791 Fed.Appx. 421 (4th Cir. 2020).
As for whether a court must hold a hearing, "[i]t is within the sound judgment of the Court to determine if an evidentiary or sentencing hearing is necessary to address the issues of a particular case." United States v. Baxter , 2019 WL 5681189, *2 (S.D. W. Va. Oct. 31, 2019) (Chambers, J.). "Whether or not a court decides to resentence a defendant, the language of the First Step Act does not require a hearing." Id . (citing Wright v. United States , 393 F.Supp.3d 432, 441 (E.D. Va. 2019) ). "Nothing in the language of the FIRST STEP Act requires the Court to have a hearing. The Court may hold a hearing if it deems [one] necessary to adequately address the issues of a particular case, or to properly consider the § 3553(a) factors, but it need not do so for every § 3582 Motion under the FIRST STEP Act." Id .
The First Step Act "grants courts statutory authority to conduct a full resentencing, in addition to the discretion to decide when doing so is appropriate. See Wright , 393 F.Supp.3d at 441. Whether or not a court decides to resentence a defendant, the language of the First Step Act does not require a hearing. See id . at 441." United States v. Spotts , 2019 WL 6521981 (S.D. W. Va. Dec. 3, 2019) (Chambers, J.).
"Judge Currie has recently considered this question and concluded that a First Step Act defendant is not entitled to a full resentencing. United States v. Shelton , 2019 WL 1598921, at *2–3 (D.S.C. Apr. 15, 2019). The Court notes Judge Currie's thorough, well-reasoned opinion and adopts her analysis of the applicable law in this case. Thus, the Court concludes that although Defendant is eligible for a sentence reduction, he is not entitled to a full resentencing. See also Wirsing , 943 F.3d at 181 n.1 (‘Defendant does not contest that his relief, if any, will be in the form of a limited sentence modification rather than a plenary resentencing.’)." United States v. Crawford , 2020 WL 95689, *2 (D.S.C. Jan. 8, 2020).
In this case, the defendant was convicted by a jury of Conspiracy to Distribute 50 grams or More of Cocaine Base under 21 U.S.C. § 841 (a)(1) and 841 (b)(1)(A) (Count I) and of Distribution of Cocaine Base within 1,000 feet of a School in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C), and 860 (Count 8). Prior to the Fair Sentencing Act, possession with intent to distribute over 50 grams of cocaine base carried a mandatory minimum of ten (10) years with a maximum of life. This Court concluded, based on defendant's relevant drug conduct, that defendants base offense level was 36. Defendant received a four level enhancement due to defendant's role in the offense and a two level enhancement for obstructing justice—for a total offense level of 42. With a total offense level of 42 and criminal history category V, the defendant's guideline range was 360 months—life on Count 1 and 360—480 months on Count 8. This Court sentenced defendant to life imprisonment for Count 1 and 480 months imprisonment for Count 8, to run concurrently.
This Court finds that both of Mr. Ray's offenses are a covered offense within the meaning of the First Step Act. Under the Fair Sentencing Act, the amount of drug involvement to sustain a conviction with a maximum sentence of life imprisonment was increased to 280 grams. Defendant was convicted by a jury of conspiracy to possess with the intent to distribute 50 or more grams of cocaine base. Possession with intent to distribute over 28 grams but under 280 grams of cocaine base after the effective date of the Fair Sentencing Act carries a mandatory minimum of five (5) years and a maximum of forty (40) years. In addition, Count 8 bears a maximum sentence of 20 years. The proper guideline level under today's guidelines is level 40, Criminal History Category V, which still provides a range of 360-life.
In this case, the defendant asks this Court to exercise its discretion and impose a new sentence well below the statutory maximums. In support of that request, the defendant notes the following arguments.
Despite having a life sentence and thus no real prospect of ever being released, Mr. Ray has nonetheless worked hard and been a positive influence at USP Canaan where he has been housed for many years. It is what Mr. Ray has done when no one was paying attention, and when he had no external incentive to maintain good behavior as a result of his sentence, that speaks volumes about the change Mr. Ray has internalized during his time in prison. He has become a better person even when he had no reason to believe it could benefit him in any other way. This evidence irrefutably demonstrates that, contrary to the picture painted in 2007, there is every reason to acknowledge Mr. Ray's potential, as he has developed "an amenability to law and societal controls" after all. [Doc. 273 at 28] (imposing a life sentence because the Court "believe[d at the time] that the only means available to the Court to deter future criminal activity is through the sentence of incarceration for life.").
Mr. Ray had not one, but four staff members at USP Canaan who wrote strong letters of support for him based on his time there since December 2007. These reviews are overwhelmingly positive, describing him as a "better person" with "model behavior" and an "exceptional" work ethic. He has had only minor few disciplinary infractions and has not had any infractions whatsoever in the past three years. Ray has had only five reports total, four of which were for minor administrative things such as being late to count, being untidy on one occasion, and being absent from assignment on one occasion. Ray has had only one citation for fighting, in which he was defending himself and was not the aggressor.
Another staff member describes Ray as "a very hard working individual" and "role model inmate that many other inmates at USP Canaan strive to be." Ray has completed every course he begins. Moreover, Officer Rauch reports that Ray has become a "suicide watch companion while [at USP Canaan] and has been doing an outstanding job for psychology." His unit counselor, Ms. Brandenburg, confirms again that Ray has had "model behavior," has been "an excellent worker" as an orderly in the Gold Corridor, completes his tasks on time with little supervision, and has remained incident free for the last three years. Officer Dwen echoes these sentiments and adds that he is "confident that, given the opportunity, [Ray] will prove that he can make a positive contribution to society."
Mr. Ray has worked in prison as a barber, and thus has at least one set of job-ready skills when he is released. He has taken numerous courses at USP Canaan, including classes on money and life skills, accounting, business skills, parenting, nutrition and culinary skills, and more. He has completed his GED. He also has maintained strong family ties, speaking often to his children and his grandchildren, of whom he speaks fondly. He thus has a support network in the Philadelphia area and a place to live with family upon release.
For the reasons stated above, this Court will reduce Mr. Ray's sentence to time served. Defendant's Motion for Reconsideration, or in the Alternative, Notice of Appeal [Doc. 534 ] is GRANTED .
It is so ORDERED .