Opinion
NO. 5:10-CR-9-FL-1
2021-10-07
UNITED STATES of America, v. Melvin Earl BATTLE, Defendant.
Cindy Bembry Johnson, Halerie M. Costello, Kyana K. Givens, Laura S. Wasco, Federal Public Defender's Office, Raleigh, NC, Walter Hoytt Paramore, III, Jacksonville, NC, for Defendant. John David Koesters, John Alfred Parris, Lucy Partain Brown, United States Attorney's Office, Raleigh, NC, for United States of America.
Cindy Bembry Johnson, Halerie M. Costello, Kyana K. Givens, Laura S. Wasco, Federal Public Defender's Office, Raleigh, NC, Walter Hoytt Paramore, III, Jacksonville, NC, for Defendant.
John David Koesters, John Alfred Parris, Lucy Partain Brown, United States Attorney's Office, Raleigh, NC, for United States of America.
ORDER
The court's analysis relies, in part, on documents filed under seal. Within 14 days, the parties jointly shall return to the court by U.S. Mail, addressed to the case manager, a copy of this order marked to reflect any perceived necessary redactions. Upon the court's inspection and approval, a redacted copy of this sealed order will be made a part of the public record. If the court determines proposed redactions of any portion of this order not subject to sealing, further notice will follow.
LOUISE W. FLANAGAN, United States District Judge
This matter came before the court for sentencing following revocation of supervised release and on defendant's motion for reduction of sentence pursuant to § 404 of the First Step Act of 2018 (DE 97, 134), at hearing October 4, 2021. The court memorializes herein reasons for granting the First Step Act motion, and reiterates its denial of defendant's requests for a downward variance and to run the revocation sentence concurrent to defendant's sentence in United States v. Battle, No. 5:20-CR-148-FL (E.D.N.C. July 27, 2021), for the reasons stated herein and additionally at hearing.
BACKGROUND
On March 4, 2010, defendant pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. According to the presentence investigation report ("PSR"), defendant distributed approximately 82 grams of cocaine base in Wilson, North Carolina, from August 2009 to January 6, 2010. (PSR (DE 127)¶¶ 1, 6–8).
The court held defendant's sentencing hearing on September 26, 2011. At the time, defendant qualified for the career offender enhancement pursuant to U.S.S.G. § 4B1.1 based on the instant federal drug conviction and three prior state convictions for distributing controlled substances. (Id. ¶¶ 14–16, 22, 51). The career offender designation increased defendant's base offense level to 37 and his criminal history category to VI. (Id. ) After applying reduction for acceptance of responsibility, the corresponding advisory Guidelines range was 262 to 327 months’ imprisonment. (Id. ¶ 56). The court, however, departed downwardly from the range [redacted] and sentenced defendant to 188 months’ imprisonment and five years’ supervised release.
[redacted]
On or about November 8, 2018, defendant was released from custody and began his supervision. Defendant's performance on supervision was poor. Urinalysis testing established defendant used controlled substances on four separate occasions between January 25 and December 9, 2019. (Am. Mot. Revocation (DE 125) at 1). Based on the foregoing violations, United States Probation moved for revocation of supervised release on December 13, 2019.
Defendant filed the instant motion for reduction of sentence pursuant to the First Step Act on January 13, 2020, arguing that his term of supervised release should be reduced to four years. The government responded in opposition on January 24, 2020, and the court held the motion in abeyance pending resolution of the motion for revocation of supervised release.
On March 25, 2020, defendant was charged by indictment with two counts of distributing a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1). See United States v. Battle, No. 5:20-CR-148-FL (E.D.N.C. Mar. 25, 2020). Defendant pleaded guilty to these new charges on February 23, 2021. The court set defendant's sentencing in No. 5:20-CR-148-FL and the revocation hearing in the instant case for July 27, 2021. In addition, probation filed amended motion for revocation of supervised release on July 15, 2021, based on defendant's new charges.
On July 27, 2021, the court sentenced defendant to concurrent terms of 16 months’ imprisonment on the two counts of distributing a quantity of heroin in No. 5:20-CR-148-FL. Turning to the motion for revocation of supervised release, the court raised the issue of whether application of the First Step Act would reduce the statutory maximum sentence available on revocation. The parties, however, were not prepared to address this issue. The court therefore continued the revocation hearing and directed further briefing on the First Step Act motion.
On August 9, 2021, defendant filed the instant supplemental motion for reduction of sentence pursuant to the First Step Act, supported by memorandum of law and exhibits thereto comprising the following: 1) North Carolina judgments for two of defendant's prior convictions; 2) defendant's Federal Bureau Prisons ("FBOP") program reviews; 3) Pathways education transcript documenting courses taken in custody; and 4) character letter. Defendant argues that application of the First Step Act reduces the statutory maximum at revocation to 36 months’ imprisonment and the Guidelines range to 24 to 30 months’ imprisonment. He further contends that the court should vary downwardly based on his post-sentencing conduct and where his original sentence was significantly longer than the likely sentence he would have received under the Fair Sentencing Act. The government responded in opposition on August 12, 2021.
COURT'S DISCUSSION
A. First Step Act Motion
On August 3, 2010, Congress enacted and the President signed into law the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The Fair Sentencing Act "increased the drug amounts triggering mandatory minimums for [cocaine base] trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum." Dorsey v. United States, 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) (citing Fair Sentencing Act § 2(a), 124 Stat. at 2372). The statute also eliminated the mandatory minimum sentence for possession of a quantity of cocaine base. Fair Sentencing Act § 3, 124 Stat. at 2372. The Fair Sentencing Act, however, did not apply retroactively to defendants sentenced before August 3, 2010. See United States v. Black, 737 F.3d 280, 287 (4th Cir. 2013) ; United States v. Bullard, 645 F.3d 237, 249 (4th Cir. 2011).
The First Step Act of 2018 ("First Step Act") makes the provisions of the Fair Sentencing Act described above retroactively applicable to defendants who committed their offenses before August 3, 2010. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222; United States v. Gravatt, 953 F.3d 258, 260 (4th Cir. 2020). Section 404 of the First Step Act provides that "[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." First Step Act § 404(b). 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 ... that was committed before August 3, 2010." Id. § 404(a).
The court has discretion to deny relief under the Act even if the defendant meets the eligibility criteria. Id. § 404(c). Finally, the court may not impose a reduced sentence for defendants whose sentences previously were imposed or reduced in accordance with the Fair Sentencing Act, or if the defendant previously moved for relief under the First Step Act and the court denied the motion on the merits. Id.
The court must address three related issues when considering an eligible defendant's request for sentence reduction pursuant to § 404 of the First Step Act. "First, [the court] must accurately recalculate the Guidelines sentencing range. Second, and relatedly, [the court] must correct original Guidelines errors and apply intervening case law made retroactive to the original sentence. Third, the court must consider the § 3553(a) factors to determine what sentence is appropriate." United States v. Collington, 995 F.3d 347, 355 (4th Cir. 2021) (citations omitted). When recalculating the Guidelines range, the court must correct original Guidelines errors even where the judicial decision establishing the error is not retroactively applicable on collateral review. See United States v. Lancaster, 997 F.3d 171, 176 (4th Cir. 2021). In addition, although relief under the First Step is discretionary, "district courts abuse their discretion in letting stand a sentence of imprisonment that exceeds the statutory maximum established by the Fair Sentencing Act." Collington, 995 F.3d at 356.
Relevant to the instant motion, defendants may seek reduction of their revocation sentences under the First Step Act provided the original conviction qualifies as a "covered offense." See United States v. Venable, 943 F.3d 187, 192-93 (4th Cir. 2019). This is because a "revocation sentence is part of the penalty for [the] initial offense" and a defendant serving a revocation sentence "is still serving his sentence for a ‘covered offense’ for purposes of the First Step Act." Id. at 194.
At the revocation hearing, the court found defendant is eligible for First Step Act relief where the statutory penalties for conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base were modified by section 2 of the Fair Sentencing Act, defendant committed the offense before August 3, 2010, and he is not otherwise excluded from seeking relief under the Act. First Step Act § 404; Gravatt, 953 F.3d at 263–64. The court thus turned to whether it should exercise its discretion to reduce defendant's sentence.
The court first considered the statutory maximum term and Guidelines range at revocation. At the time of defendant's original conviction, distribution of 50 grams or more of cocaine base carried a maximum punishment of life imprisonment, making it a class A felony. See 18 U.S.C. § 3559(a)(1) ; 21 U.S.C. § 841(b)(1)(A) (2006). On revocation of supervised release, the statutory maximum term is 60 months’ imprisonment where the predicate offense is a class A felony. See 18 U.S.C. § 3583(e)(3). Thus, in the absence of First Step Act relief, defendant would have a class A felony, grade A violation for distributing heroin, and criminal history category VI, producing a revocation Guidelines range of 51 to 60 months’ imprisonment. See U.S.S.G. § 7B1.4(a) (see also USPO Mem. (DE 126)).
The court next determined that the Guidelines range and statutory maximum would be significantly reduced in the event the court granted relief under the First Step Act. Under the Fair Sentencing Act, defendant's conviction for conspiracy to distribute 50 grams or more of cocaine base carries a statutory maximum of 40 years’ imprisonment, which is a class B felony. See 18 U.S.C. § 3559(a)(2). For a class B felony, the statutory maximum sentence on revocation is 36 months’ imprisonment. 18 U.S.C. § 3583(e)(3). Turning to the Guidelines, defendant no longer qualifies for the career offender designation where his offense of conviction is a § 846 drug conspiracy. See United States v. Norman, 935 F.3d 232, 237-39 (4th Cir. 2019) (holding § 846 conspiracies do not categorically qualify as controlled substance offenses under U.S.S.G. § 4B1.2 ); see also Lancaster, 997 F.3d at 176 (holding this same Guidelines error must be corrected in a First Step Act proceeding). In addition, the Guidelines no longer provide for an additional criminal history point if the defendant committed the offense within two years following release from custody (the "recency point"). See U.S.S.G. App. C. Amend. 742 (Nov. 1, 2010). In the absence of the career offender designation and the recency point, defendant's criminal history score is 9, which corresponds to criminal history category IV. See U.S.S.G. ch. 5 pt. A. sentencing table; (PSR (DE 127) ¶ 21 (providing for nine criminal history points after elimination of recency point); see also USPO Mem. (DE 138)). With a class B felony, grade A violation, and criminal history category IV, the Guidelines range at revocation is 24 to 30 months’ imprisonment. See U.S.S.G. § 7B1.4(a) ; (USPO Mem. (DE 138)).
Notably, the government argued that the court has discretion to deny a First Step Act motion in these circumstances. As discussed above, it is reversible error to maintain a defendant's original sentence above the statutory maximum applicable under the Fair Sentencing Act where the defendant is eligible for relief under the First Step Act. See Collington, 995 F.3d at 356. And based on the unitary theory of sentencing, the original custodial sentence, any term of supervised release, and the revocation sentence are all "part of the original sentence." Venable, 943 F.3d at 194. The revocation sentence, therefore, cannot exceed the statutory maximum applicable under the Fair Sentencing Act. See Collington, 995 F.3d at 356 ; see also United States v. Lucas, 855 F. App'x 146 (4th Cir. 2021) (reversing district court's denial of First Step Act relief where defendant's revocation sentence exceeded the statutory maximum under the Fair Sentencing Act). Thus, contrary to the government's position, the court found that it lacked authority to sentence defendant above the revised statutory penalty under the Fair Sentencing Act. And where the court is required to reduce the statutory maximum punishment, the First Step Act motion necessarily must be granted, and the Guidelines range recalculated in accordance with existing law. See Collington, 995 F.3d at 355–56.
Having considered the foregoing changes to the statutory maximum punishment and the Guideline range, along with the pertinent factors under 18 U.S.C. § 3553(a), the court granted the First Step Act motion. Applying the First Step Act, the court found the Guidelines range was 24 to 30 months’ imprisonment, and the statutory maximum the court could impose on revocation was 36 months’ imprisonment.
B. Revocation Sentence
The court also sentenced defendant to the low end of the Guidelines range in consideration of the overserved time on the original conviction - relative to the likely sentence under the Fair Sentencing Act - and the additional § 3553(a) factors addressed at hearing and in defendant's memorandum. The court denied defendant's request for a downward variance and for a concurrent sentence with United States v. Battle, No. 5:20-CR-148-FL, however, based on defendant's serious breach of the court's trust. In considering these requests, the court found the circumstances of the instant violations outweighed defendant's post-sentencing conduct and his overserved time on the predicate offense.
Probation and defendant estimate that the likely sentence defendant would have received under the Fair Sentencing Act, after all reductions, was between 26 and 21 months. (USPO Mem. (DE 138); Def's Mem. (DE 135) at 6–7). The government does not contest that defendant significantly overserved the likely sentence under the Fair Sentencing Act.
Having fully considered defendant's arguments and the relevant § 3553(a) factors, the court found a sentence of 24 months’ imprisonment was necessary to reflect the nature and circumstances of the violations, defendant's extensive history of distributing controlled substances, to provide general and specific deterrence to criminal conduct, and to protect the public from further crimes by defendant.
CONCLUSION
Based on the foregoing, the court GRANTED defendant's motion for reduction of sentence pursuant to the First Step Act (DE 97, 134), revoked defendant's supervised release, and sentenced him to 24 months’ imprisonment, consecutive to the sentence in United States v. Battle, No. 5:20-CR-148-FL.
SO ORDERED, this the 7th day of October, 2021.