Opinion
Cr. No. 0:98-1016.
November 29, 2005
OPINION AND ORDER
On May 14, 1999, Movant Martell Lee Whitaker was convicted by a jury of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i); (a)(1)(B)(i); and (a)(l)(B)(ii). The Honorable Dennis W. Shedd sentenced Movant on October 14, 1999 to a term of imprisonment of 240 months. Judgment was entered December 10, 1999. (Entry 148)
On August 13, 2001, Movant filed a motion to modify term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). (Entry 170) The motion was refiled on October 3, 2001. (Entry 181) It appears that the motion erroneously was terminated on May 14, 2002. Judge Shedd was appointed to the Court of Appeals for the Fourth Circuit on November 26, 2002.
Movant filed a petition for writ of mandamus with the Fourth Circuit, seeking an order directing the district court to rule on his § 3582(c)(2) motion. On September 30, 2005, the Fourth Circuit granted the petition for writ of mandamus and ordered the district court to act on the § 3582(c)(2) motion within sixty days of the date of its opinion. see In re Whitaker, 144 Fed. Appx. 336 (4th Cir. 2005). The case was reassigned from Judge Shedd to the undersigned on October 3, 2005.
I. FACTS
Movant was indicted on October 20, 1998. A superseding indictment was filed on May 5, 1999 charging Movant with conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base (count 1); conspiracy to commit money laundering (count 2); and possession with intent to distribute a quantity of cocaine base (count 3). Movant proceeded to a jury trial. On May 14, 1999, the jury returned a verdict of not guilty as to counts 1 and 3, and guilty as to count 2.On October 13, 1999, the government filed a motion for upward departure pursuant to U.S.S.G. § 5K2.0. (Entry 143). The matter came before Judge Shedd for a sentencing hearing on October 14, 1999. Judge Shedd overruled Movant's objections to the presentence report, which objections contended that (1) the government failed to show he laundered $60,000 in the purchasing of several automobiles; (2) he had no knowledge the funds being laundered were from illegal drug sales; (3) he was not an organizer or leader of any criminal activity; (4) a two level enhancement for obstruction of justice was erroneous. Transcript of Sentencing Hearing, pp. 5-35. (Entry 159) Based on the 1998 Sentencing Guidelines, Judge Shedd determined the total offense level to be 32, the criminal history category to be I, and the guideline range to be 121 to 151 months. Id., pp. 35-36.
Judge Shedd next heard argument with respect to the government's motion for an upward departure. The government argued that, although the guideline for money laundering did take into consideration whether Movant knew that the funds laundered were drug proceeds, the guideline did not adequately consider Movant's actual involvement in the drug trafficking. Judge Shedd granted the government's motion, finding that Movant's involvement was "extraordinary." Id., p. 53. Judge Shedd determined that Movant was a "major player" in obtaining the drug proceeds. Id., p. 54. Judge Shedd noted that, had Movant been convicted on the conspiracy count, he would have been at a total offense level of 43, which would have carried a mandatory life sentence. Id., p. 56. This determination was based on credible testimony at trial involving the sale of at least 1.5 kilograms of crack cocaine. Id., pp. 52-56. Accordingly, Judge Shedd departed upwards by five levels to a total offense level of 37, which carried sentencing guideline range of 210-262 months. The range was capped by the statutory provision of twenty years, so that the effective guideline range was 210 to 240 months. Id., pp. 57-58. Judge Shedd sentenced Movant to the statutory maximum of 240 months imprisonment.Id., p. 77.
II. DISCUSSION
Movant brings this motion under 18 U.S.C. § 3582(c)(2), which provides:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
A motion under § 3582(c)(2) is a post-conviction remedy for an improperly computed sentence. United States v. Goines, 357 F.3d 469, 476 (4th Cir. 2004). A sentencing court may reduce a defendant's term of imprisonment if his sentence was based on a guideline range subsequently lowered by the Sentencing Commission, and the amendment is listed in U.S.S.G. § 1B1.10C as retroactive. U.S.S.G. § 1B1.10(a).
In this case, Movant contends that in November 2000 the Sentencing Commission "retroactively ratified Amendment One (1) of the Sentencing Guidelines stating the following:
`That the guideline contains a statutory index for determining which offense guideline section applies to the defendant's offense most courts apply the index based on the offense of conviction, but some look to underlying conduct. This amendment requires that Sentencing Courts stick to the offense of conviction.'"
Motion to Modify Term of Imprisonment, p. 11.
The United States Sentencing Commission Guidelines Manual for 2000 incorporates guideline amendments effective November 1, 2000. The amendments made retroactive are 126 (concerning drug quantity table), 130 (same), 156 (concerning fraud guidelines), 176 (concerning impersonating a federal officer), 269 (concerning definition of "engaged in as a livelihood"), 329 (concerning guideline levels for failure to appear), 341(concerning guideline ranges for escape), 371 (concerning additional guidelines for violations involving chemicals), 379 (concerning amendments to money laundering, 380 (concerning harboring a fugitive), 433 (concerning definition of crimes of violence), 454 (concerning vulnerable victim adjustment), 461 (concerning definition of "sustaining a conviction"), 484 (concerning definition of "mixture or substance"), 488 (concerning LSD), 490 (consolidating guidelines for failure to report monetary transactions), 499 (concerning PCE), 505 (concerning drug quantity table), 506 (concerning definition of "offense statutory maximum"), 516 (concerning marijuana), 591 (concerning drug trafficking), 599 (concerning weapons enhancements), and 606 (concerning chemical quantity table). U.S.S.G. § 1B1.10(c). Only Amendments 591, 599, and 606 were made effective and retroactive as of November 2000; the remaining amendments had been enacted and made retroactive beginning with Amendment 126 in 1989. None of the amendments made retroactive by § 1B1.10(c) of the November 2000 Sentencing Guidelines contains the language cited by Movant. However, it appears that Movant is referencing Amendment 591. Amendment 591 made changes to the language of U.S.S.G. §§ 1B1.1(a) and 1B1.2(a); Appendix A; and the commentary to §§ 1B1.2, 2D1.2, and 2H1.1. The Commission noted that:
The amendment modifies §§ 1B1.1(a), 1B1.2(a) and the Statutory Index's introductory commentary to clarify the inter-relationship among these provisions. The clarification is intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction unless the case falls within the limited "stipulation" exception set forth in § 1B1.2(a). Therefore, in order for the enhanced penalties in § 2D1.2 to apply, the defendant must be convicted of an offense referenced in § 2D1.2, rather than simply to have engaged in conduct described by that guideline. Furthermore, the amendment deletes Application Note 3 of § 1B1.2 (Applicable Guidelines), which provided that in many instances it would be appropriate for the court to consider the actual conduct of the offender, even if such conduct did not constitute an element of the offense. This application note describes a consideration that is more appropriate when applying § 1B1.3 (Relevant Conduct), and its current placement in § 1B1.2 apparently has caused confusion in applying that guideline's principles to determine the offense conduct guideline in Chapter Two most appropriate for the offense of conviction. In particular, the note has been used by some courts to permit a court to decline to use the offense guideline referenced in the Statutory Index in cases that were allegedly "atypical" or "outside the heartland." See United States v. Smith, [ 186 F.2d 290 (3d Cir. 1999)].
United States Sentencing Commission Guidelines Manual, Supplement to Appendix C (November 1, 1998, through November 1, 2000), pp. 31-32.
In this case, Movant was convicted of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i), and (a)(1)(B)(ii). The Statutory Index (Appendix A) to the 1998 edition of the Sentencing Guidelines makes § 2S1.1 applicable to offenses under 18 U.S.C. § 1956. Movant's base offense level is 23 under § 2S1.1, as set forth in paragraph 15 of the Presentence Report. Therefore, Judge Shedd properly applied the sentencing guideline referenced in the Statutory Index for the statute of conviction.
Movant contends that Judge Shedd erred by overruling his objections to enhancements made to his base offense level and in granting the government's motion for an upward departure. The gravamen of Movant's argument is that his guideline range was increased based upon "offenses that he, the defendant, was not found guilty for by the `fact finders' (jury)." Motion to Modify Term of Imprisonment, p. 4. The court disagrees.
The United States Supreme Court has noted that "`an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.'" United States v. Watts, 519 U.S. 148, 156 (1997) (quoting Dowling v. United States, 493 U.S. 342, 349 (1990)). At sentencing, facts relevant to sentencing are proved by a preponderance of the evidence.Id. (citing U.S.S.G. § 6A1.3). Thus, a "jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Id. at 157.
In this case, Judge Shedd approved enhancements to the base offense level as follows: (1) three points for knowing the funds laundered were proceeds of unlawful drug activity; (2) four points for being an organizer and leader or a criminal activity involving more than five participants; (3) two points for obstruction of justice by committing perjury. As to the first enhancement, Judge Shedd stated at the sentencing hearing "it's clear from the record that just — I don't think there's any doubt about it, that it was all drug proceeds money that he was laundering. I don't think there is any doubt about that, not from my perspective, from the standard of proof that has to be applied." Transcript of Sentencing Hearing, p. 13. As to the second enhancement, Judge Shedd engaged in an extensive colloquy regarding the evidence at trial and identified seven or eight people who were involved in the criminal activity under the direction of Movant. Id., pp. 14-17. As to the third enhancement, Judge Shedd noted that he had observed Movant and heard his testimony during trial. Judge Shedd "believe[d] that by the preponderance of the evidence that Mr. Martell Whitaker lied about almost everything he testified to, there's no doubt in my mind." Transcript of Sentencing Hearing, p. 34. Thus, Judge Shedd applied the proper standard of proof with respect to the evidence presented at trial to rule on Movant's objections to the presentence report. There is nothing in Amendment 591 or §§ 1B1.1(a), 1B1.2(a) that prohibits a trial judge from enhancing the appropriate base offense level based on conduct for which Movant was found not guilty at trial.
With respect to the government's motion for upward departure, Judge Shedd heard argument from counsel, id., pp. 37-52, before deciding to grant the motion. Judge Shedd noted that he was convinced by the government's "distinction between a person involved in money laundering who knew it was drug proceeds versus a person who knew it was drug proceeds and also was responsible for deriving or obtaining those proceeds." Id., p. 52. The court discerns no error in Judge Shedd's analysis. Movant's § 3582(c)(2) motion is denied.
Movant also contends that Judge Shedd went off the record to give "a fundamentally erroneous re-instruction" to the jury. Motion to Modify Term of Imprisonment, p. 5. Movant raised this issue as a grounds for ineffective assistance of counsel in a motion brought pursuant to 28 U.S.C. § 2255 on August 3, 2001. The Honorable C. Weston Houck found the claim to be without merit. The court has reviewed the original file and located the three original notes sent by the jury to Judge Shedd during its deliberations. Two notes requested clarification of counts 1, 2, and 3. (Entries 110, 111) Judge Shedd reinstructed the jury as to the elements of the crimes charged. Transcript of Trial, Vol. V, pp. 78-85. The instruction was given on the record. No objection to the charge was interposed by counsel. Id., p. 85. Movant's claim is without merit.
Movant further asserts that as a first time offender he is entitled to the safety valve protections of U.S.S.G. § 5C1.2. Movant does not meet the criteria set forth in § 5C1.2, which applies to offenses under 21 U.S.C. §§ 841, 844, 846, 960, or 963; moreover, Judge Shedd found Movant to be a organizer or leader of a criminal association or conspiracy. His claim is without merit.