Opinion
Criminal No. 3:06cr129
06-09-2020
UNITED STATES OF AMERICA v. DEANGELO L. THORPE
MEMORANDUM OPINION
This matter is before the Court on DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (the "MOTION") (ECF No. 74), the UNITED STATES' RESPONSE TO DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (ECF No. 75), and DEFENDANT'S REPLY TO THE GOVERNMENT'S RESPONSE TO DEFENDANT'S FIRST STEP ACT MOTION (ECF No. 82). Attached to the Reply is a letter from the defendant and evidence of accomplishments while in prison. The Court has considered all of those pleadings and the defendant's letter.
The defendant's pro se MOTION TO APPLY THE FAIR SENTENCING ACT RETROACTIVELY TO DEFENDANT'S CASE (ECF No. 68) will be denied as moot. --------
BACKGROUND
In July 2006, Deangelo L. Thorpe was found guilty by a jury of all counts in a three count Indictment: possession with intent to distribute five grams or more of cocaine base and a detectable amount of cocaine hydrochloride in violation of 21 U.S.C. § 841 (Count One); possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Two); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three). Thorpe was determined to be a career offender and was determined to be eligible for treatment as an armed career criminal.
The term of imprisonment for Count One was a minimum of five years to a maximum of forty years. The term for Count Two was fifteen years to life, to be combined with the sentence on Count One. The term for Count Three was five years to life, consecutive to the combined terms imposed on Counts One and Two. The advisory guideline range at sentencing was calculated to be 360 months to life in prison and in November 2006 Thorpe was sentenced to 360 months in prison (300 months on Counts One and Two to run concurrently; and 60 months on Count Three to run consecutively to the concurrent term imposed on Counts One and Two) and a five year term of supervised release.
Under the First Step Act (and the Fair Sentencing Act), the maximum statutory term of imprisonment for Count One was reduced from forty years to twenty years. The term of imprisonment for Counts Two and Three were unchanged. The new guideline range was 360 months to life, but it was restricted by the reduced twenty year (240 month) term for Count One. Hence, the guideline range after the First Step Act is 240 months to life (considering all three) except that Thorpe was a career offender so the guideline range is 360 months to life.
DISCUSSION
The threshold issue in this case is whether Thorpe is eligible for a reduction in sentence. For the reasons set forth in United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019), United States v. Mabry, 420 F. Supp. 3d 475 (E.D. Va. 2019), and United States v. Hardnett, 417 F. Supp.3d 725 (E.D. Va. 2019), the Court concludes that Thorpe is eligible for relief under the Section 404(b) of the First Step Act that is because, before August 3, 2010, Thorpe violated a federal statute, the penalty for which was reduced by Sections 2 or 3 of the Fair Sentencing Act of 2010.
Whether to order a reduced sentence is quite a different matter, necessitating consideration of the entire record. To begin, Thorpe's offenses of conviction involved seven 60 milligram pills, ten 20 milligram pills of morphine, 0.197 gram of heroin, 30.5 grams of cocaine hydrochloride, and 10.582 grams of cocaine base. In other words, Thorpe dealt in many substances. Second, Thorpe's criminal history confirms that he is a drug dealer who has been undeterred by relatively lenient sentences in the state court system. Thorpe's criminal history category is VI by virtue of that fact that he was a career offender.
In his reply brief, Thorpe sets forth mitigating evidence to which the United States has not been afforded an opportunity to respond. Nonetheless, the Court is obligated to consider the mitigating evidence offered by the defendant. United States v. Martin, 916 F.3d 389 (4th Cir. 2019).
The evidence in mitigation shows that Thorpe has a clear disciplinary record while in prison. In addition, he has worked his way through the Bureau of Prisons system and has been designated to the lowest security facility at Petersburg FCI since 2014. He has completed drug programming and vocational courses, including a CDL class. He also obtained his G.E.D. and completed his financial obligation to the Court. According to Thorpe, all of this warrants a reduction of his sentence by some 11 and one-half years to a sentence of time served.
The record in this case shows that Thorpe is an inveterate drug dealer who is undeterred by the extensions of leniency accorded him in the state court system. The Court considers quite laudable Thorpe's efforts at rehabilitation and has taken them into account in assessing his motion for reduction of sentence.
However, the plea for reduction of sentence to time served is without merit. For an offender of the sort demonstrated by Thorpe's record and as shown in the offense conduct in this case, a sentence of the statutory maximum of twenty years (240 months) for Count One is certainly appropriate. And, in addition to that, Thorpe is eligible for a five year sentence on Count Three to run consecutively to the sentences combined on Counts One and Two. A sentence of 300 months is appropriate and necessary to protect the public and to deter the defendant. He should receive credit for his rehabilitation efforts and a reduction of sixty months is appropriate. Thus, it is appropriate to reduce Thorpe's term of imprisonment on Counts One and Two to 240 months. The consecutive sentence of 60 months imposed on Count Three remains unchanged.
CONCLUSION
For the foregoing reasons, the DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT (ECF No. 74) will be granted to reduce the total time of confinement to 300 months (consisting of 240 months on Counts One and Two to run concurrent, and 60 months on Count Three to run consecutive).
It is so ORDERED.
/s/_________
Robert E. Payne
Senior United States District Judge Richmond, Virginia
Date: June 9, 2020