Opinion
6:06-CR-06105 EAW
2020-11-23
UNITED STATES of America, v. Calvin CAMPBELL, Defendant.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Pending before the Court are the motions of defendant Calvin Campbell ("Campbell") pursuant to section 404 of the First Step Act of 2018 (hereinafter "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194 (2018), to reduce the sentence imposed for violating the terms and conditions of supervised release. (Dkt. 118; Dkt. 122; Dkt. 130; Dkt. 133). For the reasons set forth below, Campbell's motions are denied.
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2007, Campbell was charged by superseding indictment with four counts of distribution of cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1). (Dkt. 36). Because of Campbell's prior state court conviction for criminal possession of a controlled substance in the third degree, the government filed an information pursuant to 21 U.S.C. § 851. (Dkt. 38). This increased Campbell's statutory exposure from five to 40 years in prison, to 10 years to life in prison. (See Dkt. 130 at 2-3). Shortly after return of the superseding indictment, on February 12, 2007, Campbell pleaded guilty to count three charging distribution of five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Dkt. 40). This was considered a Class A felony because of the statutory maximum of life in prison. (See Dkt. 130 at 3; see also Dkt. 46 at 1).
The offense of conviction called for a mandatory minimum sentence of 120 months. (Dkt. 46 at 1). However, the government sought to depart downward from the Sentencing Guidelines and below the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, and requested a sentence of 90 months incarceration. (Dkt. 42 at 3-4). On February 13, 2008, United States District Judge David G. Larimer sentenced Campbell to 90 months incarceration followed by an eight-year period of supervised release. (Dkt. 43; Dkt. 45).
Following his sentencing, Campbell filed various motions for sentence reductions (Dkt. 48; Dkt. 50; Dkt. 53; Dkt. 56; Dkt. 58), all of which were denied by Judge Larimer (Dkt. 49; Dkt. 52; Dkt. 54; Dkt. 57; Dkt. 59). Campbell was released to supervision on March 29, 2013. (See Dkt. 60 at 1). On March 27, 2015, a petition was filed alleging that Campbell violated certain terms and conditions of supervised release (Dkt. 65), and the case was then transferred to the undersigned (Dkt. 66).
On December 1, 2015, Campbell pleaded guilty to violating the terms and conditions of supervised release, admitting to the following:
On March 25, 2015, the defendant was arrested by the Monroe County Sheriff's Office and charged with Assault 3rd, in violation of New York Penal Law § 120.00, Subdivision 1, a class A misdemeanor. It is alleged that on November 30, 2014, the defendant was involved in a hit and run car accident, after which he attempted to flee the scene. It is further alleged that after the accident, the defendant was involved in an altercation with the other driver where he struck the 53 year old wom[a]n, resulting in significant physical injuries that required an eleven day hospital stay.
(Dkt. 88 at 1; Dkt. 89). The undersigned revoked Campbell's supervised release and sentenced him to 12 months incarceration to be followed by 51 months of supervised release. (Dkt. 90).
Campbell commenced his 51-month supervised release term on November 4, 2016. (See Dkt. 91 at 1). Less than two years into that term, on August 3, 2018, a petition was filed alleging that Campbell violated the terms and conditions of supervised release. (Dkt. 91). The underlying charges related to an incident occurring on August 2, 2018, when Campbell was stopped by New York State Troopers in the City of Rochester for a traffic violation, and a quantity of heroin, cocaine and marijuana, all packaged for sale, were discovered in his vehicle. (Id. ). A revocation hearing was held before the undersigned on October 31, 2018 (Dkt. 98), and by Decision and Order entered November 30, 2018, this Court found that the government established by a preponderance of the evidence that Campbell was guilty of each of the charged violations as set forth in the petition. (Dkt. 101). On December 27, 2018, the Court sentenced Campbell to 54 months incarceration followed by five years supervised release. (Dkt. 106). Campbell is scheduled to be released from custody on June 8, 2022. (Dkt. 130 at 5).
Campbell filed a notice of appeal (Dkt. 107), but he subsequently moved to withdraw that appeal and the motion was granted by the Second Circuit Court of Appeals. (Dkt. 128). While that appeal was still pending, Campbell filed several pro se motions before the undersigned. Specifically, on July 29, 2019, Campbell filed a motion to reduce his sentence pursuant to section 404 of the First Step Act. (Dkt. 118). Then, on March 13, 2020, Campbell filed a motion asking that the undersigned render a decision with respect to his previously-filed motion under the First Step Act. (Dkt. 122). On April 6, 2020, Campbell filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), asking to be released from custody because of the COVID-19 pandemic (Dkt. 123), and he filed a similar motion a few days later, on April 9, 2020 (Dkt. 125).
The Court imposed the current sentence that Campbell is serving less than one week after the First Step Act was signed into law. Although Campbell did not raise the First Step Act at his sentencing hearing on December 27, 2018, the government has not argued that Campbell waived his arguments in this regard.
On April 21, 2020, this Court issued a Decision and Order denying Campbell's motions for compassionate release pursuant to Federal Rule of Criminal Procedure 37(a), and deferring consideration of his motions made under section 404 of the First Step Act until such time that the Second Circuit remanded the case to this Court. (Dkt. 127).
After Campbell withdrew his appeal, the Federal Public Defender's Office appeared in this case on his behalf and filed a supplemental motion under the First Step Act. (Dkt. 130). In accordance with the schedule set by the Court, the government filed a response in opposition to Campbell's requests for relief under the First Step Act. (Dkt. 132). Campbell then filed a pro se supplement to the pending motions on August 20, 2020. (Dkt. 133).
On September 9, 2020, the Court held a remote oral argument on the pending motions. (Dkt. 136). That same day, after oral argument, the government filed a letter clarifying that it was withdrawing its opposition in another case to application of the First Step Act to a supervised release violation. (Dkt. 135). Thereafter, the Court received several letters from Campbell and family members of his fiancée. (Dkt. 137; Dkt. 138; Dkt. 139; Dkt. 140).
ANALYSIS
In 2010, the Fair Sentencing Act was enacted in an attempt to address the "crack-to-powder cocaine disparity." Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) ; see Pub. L. No. 111-220, §§ 2–3, 124 Stat. 2372, 2372 (amending 21 U.S.C. § 841(b)(1) ). However, the Fair Sentencing Act was not retroactive to defendants who, like Campbell, had been sentenced before its passage. United States v. Davis , 961 F.3d 181, 183 (2d Cir. 2020). In 2018, Congress passed the First Step Act, promulgating various criminal justice reforms, including allowing for the Fair Sentencing Act to be applied retroactively under certain circumstances.
Specifically, section 404(b) of the First Step Act permits a district court to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." United States v. Martin , 974 F.3d 124, 131 (2d Cir. 2020). In order to be eligible for a sentence reduction under the First Step Act, a defendant: (1) must have previously been sentenced on a "covered offense," which 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 ... that was committed before August 3, 2010," Pub. L. No. 115-391, § 404(a); and (2) cannot have had his sentence previously reduced in accordance with the amendments of the Fair Sentencing Act or previously had a motion under section 404 denied after a complete review of the motion on the merits, id. at § 404(c).
Here, the parties agree that Campbell was previously sentenced on a "covered offense," he has not previously received a sentence reduction under the Fair Sentencing Act, and he has not previously had a motion denied under section 404 of the First Step Act. (Dkt. 130 at 8-9; Dkt. 132 at ¶ 10). Moreover, although the Second Circuit has not ruled on the issue, the parties agree that sentences for supervised release violations are eligible for sentence reductions, where the underlying offense that ultimately led to the supervised release term is a "covered offense" under the First Step Act. (Dkt. 130 at 9-10; Dkt. 132 at ¶ 10). See United States v. Woods , 949 F.3d 934, 937 (6th Cir. 2020) (explaining that post-revocation penalties relate to the original offense, and therefore a defendant is eligible for resentencing under the First Step Act on a violation of supervised release); United States v. Venable , 943 F.3d 187, 194 (4th Cir. 2019) ("And given that [the defendant's] revocation sentence is part of the penalty for his initial offense, he is still serving his sentence for a ‘covered offense’ for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction, just as if he were still serving the original custodial sentence.").
However, Campbell's eligibility for relief under the First Step Act is where the parties’ agreements end. The parties disagree whether the Court should exercise its discretion and grant Campbell a sentence reduction. A defendant's eligibility for relief under the First Step Act does not necessarily entitle him to relief. Pub. L. No. 115-391, § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section."); United States v. Holloway , 956 F.3d 660, 666 (2d Cir. 2020) ("[W]hile Holloway is plainly eligible for relief, he is not necessarily entitled to relief. The First Step Act is clear that it does not require a court to reduce any sentence.... Whether Holloway's remaining term of supervised release should be reduced is a matter left to the district court's sound discretion." (internal citation omitted)).
In Holloway , the Second Circuit did not elaborate as to what factors the district court should consider on a motion for a sentence reduction. See id. at 666 ("[W]e do not decide the procedural requirements for consideration of a sentence reduction under the Act once eligibility has been determined, nor do we decide—except as noted above—what factors the district court may (or must) consider in weighing whether and to what extent a sentence reduction is warranted."). However, the court did note that when determining whether to reduce a defendant's period of supervised release, the court "may factor in how much (if at all) it would have reduced [the defendant's] prison term." Id. at 664. More recently, in United States v. Thomas , 827 F. App'x 63, 65 (2d Cir. 2020), the court appeared to endorse the notion that a district court's exercise of discretion should be based on a consideration of the factors set forth at 18 U.S.C. § 3553(a). Thomas cited with approval the decision of United States District Judge Valerie Caproni in United States v. Rose , 379 F. Supp. 3d 223 (S.D.N.Y. 2019), where she concluded that "the First Step Act authorizes the Court to re-evaluate § 3553(a) factors in light of post-sentencing factual developments." Id. at 231. Moreover, United States v. Moore , 975 F.3d 84 (2d Cir. 2020), stands for the proposition that while "the First Step Act does not entail a plenary resentencing," it does require a district court to account for the Sentencing Guideline "changes that flow from Sections 2 and 3 of the Fair Sentencing Act of 2010, when considering as a discretionary matter whether (or by how much) to grant a sentence reduction." Id. at 92 ; see also United States v. Ortiz , No. 19-3073, 832 Fed. Appx. 715, 718 (2d Cir. Oct. 27, 2020) ("[I]n assessing motions brought under th[e First Step Act] ... district courts need not perform ‘de novo Guidelines calculations,’ nor must they consider ‘new Guidelines provisions[.]’ Instead, the First Step Act requires only that district courts ‘take into account Guidelines range changes that result directly from the retroactive application of Sections 2 and 3’ of the Fair Sentencing Act. Of course, that does not mean that a district court cannot consider additional factors. But it is left to the district court's discretion ‘what [other] factors are relevant as it determines whether and to what extent to reduce a sentence.’ " (citations omitted)).
With this guidance, the Court starts its analysis, as it does with most sentencing determinations, by considering the statutory requirements and the recommendations under the Sentencing Guidelines. At the time of Campbell's initial sentencing in 2008, the Presentence Investigation Report ("PSR") calculated a base offense level of 28 based upon 21 grams of crack cocaine. (Dkt. 46 at ¶ 29). The PSR noted that it did not include the 57 grams of powder cocaine involved in Campbell's relevant conduct, because adding that to the crack cocaine and converting the drugs to the marijuana equivalency would not have changed the base offense level. (Id. ). With a two-level reduction for acceptance of responsibility and a criminal history category of V, the recommended sentence under the Sentencing Guidelines was 110 to 137 months (although the mandatory minimum sentence was 120 months), but the PSR noted that pursuant to proposed amendments to the Sentencing Guidelines, the offense level would drop to 24 resulting in a recommended prison sentence of 92 to 115 months. (Id. at ¶¶ 44-45).
Had the Fair Sentencing Act provisions applied to Campbell's initial sentence, he would have been convicted of a Class B felony as opposed to a Class A felony, because the statutory maximum with the § 851 enhancer would have been 30 years in prison as opposed to life. (See Dkt. 130 at 5-6). This means that as opposed to a maximum of five years in prison for a supervised release violation, the maximum period of incarceration for a supervised release violation would have been reduced to three years. (Id. at 6). In addition, the recommended prison sentence for the supervised release violation that Campbell was found guilty of in 2018 would have been reduced to 30 to 36 months in prison (as opposed to the calculated range of 46 to 57 months in prison). (Id. at 6; see also Dkt. 104 at 2).
In addition, based on the current Sentencing Guidelines, Campbell's offense of conviction would have resulted in a base offense level of 22 (combining both the crack cocaine and the powder cocaine for a total converted drug weight of 86.391 kilograms of marijuana), and with a two-level decrease for acceptance of responsibility and a criminal history category of V, the recommended prison sentence would be 63-78 months.
The Court also notes that it incorrectly stated at the time of Campbell's sentencing in December 2018 that it was required to impose a mandatory minimum term of five years supervised release to follow any prison sentence. (See Dkt. 130 at 10-11; Dkt. 104 at 2). In fact, there was no minimum term of supervised release required—instead, the Court could impose anywhere up to the maximum of life less any revocation sentence. (See Dkt. 130 at 11).
Thus, there is no question that had Campbell been convicted of the same crime today as he was back in 2008, his initial sentencing exposure would have been significantly less than it was in 2008, and he also would have faced less severe penalties for the supervised release violation for which he was sentenced in 2018. As opposed to the 54-month prison sentence that was imposed in December 2018, the maximum that the Court would have been able to impose for the supervised release violation would have been 36 months. Campbell makes a compelling argument that this results in a disparity in sentencing among defendants with similar records who have been sentenced for similar conduct. In other words, a defendant convicted of the same offense as Campbell after enactment of the Fair Sentencing Act, who then violated the terms and conditions of supervised release in the same manner as Campbell, would have not only faced significantly less penalties initially, but he also would have been subject to a maximum prison sentence for the supervised release violation that was 18 months less than the sentence that this Court imposed in December 2018.
Yet, the Court's analysis does not end here. In other words, this Court recognizes the disparity described above, as well as the remedial purposes of the changes in the law pursuant to the Fair Sentencing Act and the First Step Act. Consideration of those factors favors granting Campbell the relief that he seeks. However, based on its consideration of other applicable § 3553(a) factors, the Court concludes that Campbell's motion must be denied. See United States v. Spells , No. 19-3205-CR, 833 Fed. Appx. 890, 893 (2d Cir. Nov. 6, 2020) ("It follows that, in some cases, a district court may properly deny a Section 404 motion because of a defendant's particular circumstances, even though that means leaving in place a sentencing disparity of the type Section 404 authorizes district courts to address."). In other words, a disparity in sentencing like the one described by Campbell does not automatically entitle a defendant to relief—otherwise, the provisions of the First Step Act would be mandatory, and they are not.
Campbell, who is 45 years old, has demonstrated a persistent and consistent pattern of unlawful conduct that is dangerous to others and the community. His criminal history dates back over 25 years, to December 1994, when at the age of 19, he was arrested and charged in state court with criminal possession of a controlled substance in the third degree and criminal possession of a narcotic drug in the fourth degree—both felonies—along with a related misdemeanor. (Dkt. 46 at ¶ 37). He was convicted in October 1995, upon verdict after trial and sentenced to prison. (Id. ). He was paroled in August 1997, and received various parole violations until his parole was discharged in August 2001. (Id. ). During the time he was serving on parole for the October 1995 conviction, Campbell was arrested for felony and misdemeanor state drug crimes and pleaded guilty to a misdemeanor crime of criminal possession of a controlled substance in the seventh degree, receiving a one-year jail sentence. (Id. at ¶ 38). Then, again before his parole was discharged in August 2001, he was arrested and charged in state court with two counts of criminal possession of a controlled substance in the third degree (both felonies) and a related misdemeanor. (Id. at ¶ 39). Campbell pleaded guilty to one felony count in July 2002, and he was sentenced to parole supervision. (Id. ). However, it appears as though he was ultimately sentenced to prison later that year, and once released in 2004, his parole was revoked one year later and again, when conditionally released, he violated parole. (Id. ). Campbell was arrested for the federal offense that led to his 2008 sentence on June 29, 2006, just one month after his parole ended for the 2002 conviction. (Id. at ¶¶ 25, 39). Although initially released when charged in federal court, Campbell's bail was revoked in a matter of months due to an incident where he allegedly physically assaulted and threatened to kill his then-girlfriend. (Dkt. 6; Dkt. 8; Dkt. 11; Dkt. 14).
Campbell's unlawful conduct has continued since being released from federal prison on March 29, 2013, after serving his 90-month sentence. On August 19, 2014, a petition was filed alleging that Campbell violated the terms and conditions of supervised release, but that petition was dismissed without prejudice based on an agreement between the parties. (Dkt. 60; Dkt. 64). Then, on March 27, 2015, another petition was filed alleging that Campbell violated the terms and conditions of supervised release, related to the aforementioned road rage incident involving a 53-year old woman who was hospitalized for 11 days as a result of Campbell's physical assault. (Dkt. 65). Additional charges were filed as that petition was pending (Dkt. 88), and ultimately pursuant to an agreement between the parties, Campbell pleaded guilty to the assault and he was sentenced to 12 months in prison to be followed by 51 months of supervised release. (Dkt. 89; Dkt. 90).
That 51-month supervised release term commenced on November 4, 2016, and less than two years into that term, on August 3, 2018, a petition was filed alleging that Campbell violated the terms and conditions of supervised release related to drug trafficking evidence discovered during a traffic stop. (Dkt. 91). After a revocation hearing, the Court found Campbell guilty of all charges in the petition. (Dkt. 101). At sentencing, Campbell did not accept responsibility for his conduct that led to the instant violation of supervised release. (Dkt. 117 at 7-9). The Court sentenced Campbell on December 27, 2018, to 54 months incarceration followed by five years supervised release. (Dkt. 105; Dkt. 106). Campbell filed a notice of appeal (Dkt. 107), but ultimately withdrew that appeal (Dkt. 128).
The underlying offense conduct resulting in Campbell's current incarceration demonstrated that he was once again involved in drug trafficking. Specifically, a search of the vehicle that Campbell was operating on August 2, 2018, revealed five plastic bags containing marijuana, nine clear Ziplock bags containing a rock-like substance that tested positive for cocaine, two green wax envelopes with gray powder that tested positive for fentanyl, heroin and tramadol, along with multiple cell phones—only one of which had been reported to his probation officer. (See Dkt. 101 at 10-12, 25). Campbell was irate and belligerent during the interaction with law enforcement and his probation officer, ultimately resulting in him being placed in the back of a police vehicle in handcuffs. (Id. at 10, 25).
As noted, Campbell's prior criminal conduct not only involves repeated instances of drug trafficking activity, but it also involves acts of violence. Moreover, there is nothing in the record before the Court suggesting that Campbell's drug-trafficking history has been driven by any addiction-related issues. (See Dkt. 46 at ¶ 60). The Court notes that Campbell has no history of disciplinary infractions while in prison during his current incarceration (nor for that matter is the Court aware of any such disciplinary infractions during any prison sentence). In addition, the Court acknowledges that Campbell's fiancée was recently shot and suffered injuries, and this has placed particular strain on his family. (See Dkt. 138; Dkt. 139; Dkt. 140). The Court also acknowledges Campbell's continued concerns about the threat of COVID-19 and the challenges in managing the spread of that disease in a prison sentencing. (See , e.g. , Dkt. 137).
The Court has considered all of the applicable § 3553(a) factors, including the disparity in sentencing as noted by Campbell and the remedial purposes of the Fair Sentencing Act and First Step Act; Campbell's history and characteristics; the nature and circumstances of his offense conduct; the need to afford adequate deterrence to criminal conduct; and the need to protect the public from any further crimes that Campbell might commit. Based on its careful consideration of all these factors, the Court declines to grant Campbell the relief he seeks. The Court concludes that the 54-month prison sentence to be followed by a five-year period of supervised release is appropriate under the circumstances. The Court reaches this conclusion while acknowledging its mistake in its original statement at the sentencing in December 2018, that a five-year period of supervised release was mandatory. Nonetheless, based on all of the foregoing, the Court continues to believe that, while not mandatory, a five-year supervised release term is appropriate and necessary in this case.
Campbell claims that his current prison sentence has served as the "wake-up call that he needed to see a successful path forward." (Dkt. 130 at 12). At the oral argument on the pending motions on September 9, 2020, Campbell stated to the Court that he accepted responsibility for his criminal conduct and that he no longer had a criminal mindset. Time will tell whether this proves to be true. But to date, Campbell's conduct demonstrates otherwise. If, in fact, Campbell has truly reformed and leads a law-abiding life after being released from prison—something that he has failed to do over the past several decades—then Campbell may potentially seek relief consistent with 18 U.S.C. § 3583(e)(1) to terminate his supervised release term prior to the expiration of the five years imposed by the Court. However, at this point and based on the foregoing, the Court concludes that the current prison sentence and supervised release term are appropriate and necessary, and accordingly it declines to exercise its discretion to grant relief under the First Step Act.
CONCLUSION
For the foregoing reasons, the Court denies Campbell's motions under section 404 of the First Step Act. (Dkt. 118; Dkt. 122; Dkt. 130; Dkt. 133).
SO ORDERED.