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granting relief where mandatory sentence would now be 15 years rather than life
Summary of this case from United States v. GomezOpinion
Case No. 1:05-cr-460-AJT-1
2020-07-23
UNITED STATES of America, v. George Cornelius DAY, Defendant.
Lawrence J. Leiser, LeDora Knight, James Ryan, United States Attorney's Office, Alexandria, VA, for USA.
Lawrence J. Leiser, LeDora Knight, James Ryan, United States Attorney's Office, Alexandria, VA, for USA.
By Order dated July 23, 2020 [Doc. 258], this Court vacated its prior Memorandum Opinion and Order [Doc. 257].
Anthony J. Trenga, United State District Judge
On June 29, 2006, Defendant George Cornelius Day was found guilty of (1) conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) and 5 kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count 1); (2) conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count 4); and (3) seven counts of money laundering, in violation of 18 U.S.C. § 1957 (Counts 5-11). On September 13, 2006, he was sentenced to a mandatory term of Life imprisonment on Count 1; 240 months' imprisonment on Count 4, to run concurrently with Count 1; and 120 months' imprisonment on each of Counts 5 through 11, to run concurrently with each other and with Count 1.
Currently pending before the Court are Defendant's Motion to Reduce Sentence Pursuant to § 404 of the First Step Act of 2018 [Doc. 243] (the "First Step Act Motion") and Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) [Doc. 246] (the "Compassionate Release Motion") (collectively, the "Motions"). In these Motions, Defendant seeks (1) a reduction of his Life sentence on Count 1 to 180 months pursuant to § 404 of the FIRST STEP Act of 2018 (the "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194; (2) a reduction to his entire sentence to time served pursuant to 18 U.S.C. § 3582(c)(1)(A), based on "extraordinary and compelling reasons," specifically his particular vulnerabilities to COVID-19; and (3) a reduction of his Life sentence on Count 1 to 180 months pursuant to 18 U.S.C. § 3582(c)(1)(A), based on "extraordinary and compelling reasons," specifically, the gross disparity between the mandatory Life sentence Defendant received and the mandatory minimum 180-month sentence now applicable for the same offense today. The United States objects to the Motions on the grounds that the relief Defendant seeks under § 404 of the First Step Act is neither authorized nor warranted under the circumstances; Defendant has not properly exhausted his administrative remedies under 18 U.S.C. § 3582(c)(1)(A) ; and Defendant cannot demonstrate "extraordinary and compelling" reasons to warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).
By Order dated March 28, 2019 [Doc. 245], this Court appointed the Office of the Federal Public Defender to represent Defendant with respect to the Motions. On May 26, 2020, that Office filed a Supplemental Motion to Reduce Sentence Pursuant to § 404 of the First Step Act of 2018 [Doc. 252] and Memorandum in Support of Defendant's Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) [Doc. 253], which will be deemed incorporated into the First Step Act Motion and the Compassionate Release Motion respectively.
For the reasons discussed below, the Motions are GRANTED to the extent the Court will impose a reduced sentence on Count 1, to be determined following the submissions as directed herein.
I. BACKGROUND
In 2001, federal law enforcement began to investigate a group of individuals alleged to be distributing crack cocaine within the Eastern District of Virginia. [Doc. 206] Presentence Investigation Report ("PSR") ¶ 12. In 2004, as part of that investigation, law enforcement learned that Defendant, who had been a street-level crack dealer from around 1996 until 2000, became a drug supplier beginning in or around 2000, importing large amounts of cocaine from the Bahamas into the United States for redistribution. Id. ¶¶ 13, 15,16. Ultimately, Defendant was connected to approximately 100 kilograms of powder cocaine and 10 kilograms of crack cocaine and through these activities, had earned approximately three to four million dollars in drug proceeds over the course of the conspiracy, of which approximately 2.3 million dollars were confirmed as drug proceeds by the Internal Revenue Service. Id. ¶¶ 26-43.
On November 17, 2005, a grand jury in the Eastern District of Virginia returned an eleven-count superseding indictment against Defendant, charging him with conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) and 5 kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count 1); conspiracy to import 5 kilograms or more of cocaine into the United States, in violation of 21 U.S.C. § 963 (Count 2); possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c) (Count 3); conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count 4); and money laundering, in violation of 18 U.S.C. § 1957 (Counts 5-11). [Doc. 9].
On February 14, 2006, prior to trial, the government filed a criminal information pursuant to 21 U.S.C. § 851 [Doc. 48], thereby providing the required notice to Defendant that if convicted on Count 1, Defendant would be sentenced to an enhanced mandatory Life sentence. Id. ; PSR ¶¶ 52-53. That § 851 information was based on Defendant's 1995 and 1997 Maryland state court convictions for possession with intent to distribute cocaine. For his 1995 conviction, Defendant was given a three-year suspended sentence and for his 1997 conviction, a four-year sentence, of which he appears to have served approximately 17 months. PSR ¶¶ 52-53.
Defendant's first trial ended in a mistrial; and the government proceeded to a second trial on June 12, 2006. After a two-week trial, the government voluntarily dismissed before jury deliberations Count 3 (the § 924(c) charge); and the jury found Defendant guilty as to Counts 1, 4, and 5-11 and not guilty as to Count 2. [Doc. 95].
On September 13, 2006, Defendant appeared for sentencing. Under the then-applicable United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), Defendant's Guidelines sentencing was 360 months to Life. See PSR Worksheets A, C. However, because the government filed a § 851 information based upon two § 851 predicate offenses, the restricted Guidelines range became Life imprisonment. See PSR Worksheet D. Defendant did not receive a Guidelines enhancement for possession of a firearm, see PSR ¶¶ 12-43, and the government has acknowledged in response to the Motions that "there is no evidence [that Defendant] himself was violent." [Doc. 255] at 11. As required, the Court sentenced Defendant to the mandatory Life sentence on Count 1. It also sentenced Defendant to 20 years as to Count 4, to run concurrently with Count 1; and 10 years as to each of Counts 5-11, all to run concurrently with each other and concurrently with Count 1. [Doc. 113].
Defendant's total offense level for Count 1 was 42, based on a base level of 38 (U.S.S.G. § 2D1.1(a)(3)(c)(1) ), plus a four-point enhancement for Defendant's aggravating role as the organizer or leader of the criminal activity. Defendant's criminal history category was IV based on his 1995 and 1997 drug convictions for possession and a related conviction for transporting a handgun. Because Defendant qualified as a career offender under the Guidelines, it appears that Defendant's criminal history category was elevated to criminal history category VI pursuant to U.S.S.G. § 4B1.1(a). See PSR ¶ 61; Worksheet D. However, the corresponding sentencing range (360 months to Life) was restricted to Life based on his two qualifying § 851 predicate offenses.
Defendant had three co-defendants, two charged in this case, and one, his then-wife, in Case No. 1:05-cr-460-2 (E.D. Va.). His two co-defendants in this case pled guilty to certain of the charges against them and received sentences of 188 and 228 months, respectively. Defendant's then-wife proceeded to a jury trial, at which she was found not guilty to as to Counts 4-11, the only charges against her. PSR ¶¶ 9-11.
To date, Defendant has served nearly 15 years of his sentence and is currently incarcerated at FCI Fort Dix, a low security federal prison. He is ineligible for parole, see Sentencing Reform Act of 1984, Title II, ch. II of Pub. L. 98-473, § 218(a)(5), 98 Stat. 1837, 2027 (abolishing parole system for federal offenses committed after November 1, 1987); and has no scheduled release date.
See Bureau of Prisons, Find an Inmate, available at: https://www.bop.gov/mobile/find_inmate/byname.jsp (last accessed July 23, 2020).
On February 11, 2019, Defendant, proceeding pro se , filed the First Step Act Motion [Doc. 243], in which he requests pursuant to § 404 of the First Step Act a sentence reduction as to Count 1. On May 4, 2020, Defendant, again proceeding pro se , filed the Compassionate Release Motion [Doc. 246], in which he also requests a reduction in his Life sentence under 18 U.S.C. § 3582(c)(1)(A) based on the "extraordinary and compelling" reasons related to his underlying health issues that places him in the "at-risk" demographic for mortality from COVID-19. On May 26, 2020, Defendant, through counsel, requested relief under 18 U.S.C. § 3582(c)(1)(A) based on the gross disparity that now exists between his Life sentence and the now-reduced penalties under 21 U.S.C. § 851 enacted in § 401 of the First Step Act. [Docs. 252, 253]
On May 15, 2020, the government filed its opposition to the Compassionate Release Motion [Doc. 246]; on June 6, 2020, the government, as ordered, responded to Defendant's supplemental motion [Doc. 255]; and on June 8, 2020, the Defendant filed a reply [Doc. 256]. Accordingly, the Motions are ripe for adjudication.
II. ANALYSIS
A. First Step Act Motion [Doc. 243]
1. Legal Background
In August 2010, Congress passed, and the President signed into law, the Fair Sentencing Act of 2010 (the "Fair Sentencing Act"), Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the Fair Sentencing Act reduced the statutory penalties for certain crack cocaine offenses by increasing the threshold drug quantities required to trigger the applicable mandatory minimum sentences. Id. § 2. In that regard, the Fair Sentencing Act made the mandatory 10 years-to-life sentencing range, previously applicable to an offense involving 50 grams or more of crack cocaine, applicable only to an offense involving 280 grams or more of crack cocaine. 21 U.S.C. § 841(b)(1). This change, however, did not apply retroactively.
Section 3 of the Fair Sentencing Act, not relevant here, eliminated any mandatory minimum sentences for simple possession of crack cocaine. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 3, 124 Stat. 2372, (Elimination of Mandatory Minimum Sentence for Simple Possession).
On December 21, 2018, Congress passed, and the President signed into law, the First Step Act. Section 404 of the First Step Act retroactively applied § 2 and § 3 of the Fair Sentencing Act to certain qualifying offenders who were sentenced on or before August 3, 2010. Section 404 does not guarantee a sentence reduction for every eligible defendant. Id. , § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section."). Rather, "a court that imposed a sentence for a covered offense may, on motion of the defendant, ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act 2010 ... were in effect at the time the covered offense was committed." Id. , § 404(b). In determining whether to reduce a sentence pursuant to § 404(b), the court should consider the factors set forth in 18 U.S.C. § 3553(a), as well as a defendant's post-sentencing conduct. See United States v. Wirsing , 943 F.3d 175, 180 (4th Cir. 2019).
The First Step Act also modified § 851 in two ways that are central to Defendant's request for relief. First , § 401 changed what qualifies as a predicate offense triggering a recidivist enhancement under 21 U.S.C. § 841(b)(1)(A). Specifically, under § 401, only a "serious drug felony" or "serious violent felony, defined as an offense for which an offender actually served a term imprisonment of more than one year, now qualifies as a § 851 predicate offense, rather than the previously included "felony drug offense," defined as an offense that is punishable by imprisonment of more than one year. See 21 U.S.C. § 851 (as amended by the First Step Act, § 401(a)); see also 21 U.S.C. §§ 802(57)(A) and (58)(A) (defining "serious drug felony" and "serious violent felony," respectively). And second , § 401 reduced the mandatory enhanced minimum penalties, triggered by a § 851 information, applicable to offenders with one or more prior predicate offenses. See First Step Act § 401(a)(2). Specifically, § 401 reduced the mandatory minimum penalty from 20 years to 15 years for defendants convicted under § 841 with one prior qualifying offense; and from Life imprisonment to 25 years for defendants with two prior qualifying offenses. Id. These statutory changes apply to conduct that occurred before the First Step Act's enactment, i.e. , December 21, 2018, "if a sentence for the offense has not been imposed as of [December 21, 2018]." See id. , § 401(c).
In effect, the First Step Act amended the statutory penalties associated with Defendant's § 841(a) conviction as follows:
§ 401(c) reads in full:
(c) Applicability to Pending Cases.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.
2. Defendant's Eligibility Under the § 404 of the First Step Act
To be eligible for a discretionary sentence reduction under § 404 of the First Step Act, a defendant must meet three requirements: (1) he was convicted of a "covered offense" committed before August 3, 2010; (2) he was sentenced pursuant to the statutory penalties for the "covered offense" in effect before August 3, 2010; and (3) he has not previously filed a motion pursuant to § 404 that was granted or denied on its merits after a complete review. A "covered offense" is defined as a "violation of a Federal criminal statute" committed before August 3, 2010 and whose statutory penalties were modified by Section 2 or 3 of the Fair Sentencing Act. Id. , § 404(a). It is undisputed that Defendant is eligible under § 404 for a sentence reduction with respect to his conspiracy conviction on Count 1. See Opp. at 6.
Prior to August 3, 2010, Defendant committed a violation of 21 U.S.C. §§ 841(a) and 846, whose statutory penalties were modified by § 2 of the Fair Sentencing Act; he was sentenced for that offense under the statutory penalties in effect before August 3, 2010; and he has not previously filed a motion nor received a sentence reduction under § 404 of the First Step Act. Further, notwithstanding that Count 1 involved both crack and powder cocaine, the Fourth Circuit concluded in United States v. Gravatt , 953 F.3d 258, 264 (4th Cir. 2020) that a conspiracy involving both crack cocaine and another drug, as in this case, still qualifies as a "covered offense" under § 404 of the First Step Act, even though the penalties for the second drug were not modified by the Fair Sentencing Act.
3. Scope of Relief Under § 404 of the First Step Act
As discussed above, the Court may, but is not required, to impose a reduced sentence under § 404. See First Step Act, § 404(c). Central to that issue is whether the statutory changes enacted in § 401 apply at the time a court imposes pursuant to § 404 a new, reduced sentence on a covered offense for which a defendant was originally sentenced before December 21, 2018, an unsettled issue over which the parties disagree.
As far as the Court has been able to determine, neither the Fourth Circuit nor any other court has decided this issue.
In United States v. Chambers , 956 F.3d 667 (4th Cir. 2020), the Fourth Circuit considered whether, when acting pursuant to § 404, a court is permitted to apply intervening case law after the defendant's initial sentencing, under which that defendant would no longer be considered a career offender for purposes of the Guidelines. In reversing the district court, the Fourth Circuit held that a Guidelines error, corrected retroactively by intervening case law, must be corrected in a First Step Act resentencing "[b]ecause the First Step Act does not constrain courts from recognizing Guidelines errors, and because the District Court seemingly believed it could not vary from the Guidelines range to reflect post-sentencing information ...." Chambers , 956 F.3d at 668.
In Chambers , the district court had originally sentenced defendant as a career offender under U.S.S.G. § 4B1.1(a) based on a North Carolina drug offense that, at the time of defendant's original sentencing, qualified as a predicate career offender conviction. After that sentencing, however, the Fourth Circuit decided in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (en banc), applied retroactively in Miller v. United States , 735 F.3d 141, 146 (4th Cir. 2013), that if a particular defendant could not have actually received a sentence in excess of twelve months, then the government cannot use that conviction as a predicate felony conviction for federal enhancement purposes under U.S.S.G. § 4B1.1. Accordingly, based on Simmons , Chambers ' North Carolina drug offense could no longer qualify as a predicate career offender conviction under U.S.S.G. § 4B1.1.
Defendant does not contend that Simmons and Miller impact either of his § 851 predicate convictions.
Recognizing that "[i]n the context of a new statute, and with little guidance, district courts are being asked to shape what a resentencing under the First Step Act looks like[,]" the Fourth Circuit went on to "review the scope of a district court's resentencing authority under the First Step Act de novo ...." Id. at 671. In that regard, it held that First Step Act motions fall under 18 U.S.C. § 3582(c)(1)(B), not (c)(2), and that "[a]s we recently explained in Wirsing , ‘there is no reason to suppose that motions brought pursuant to section § 3582(c)(1)(B) are subject to the restrictions particular to § 3582(c)(2), which are grounded in the text of the latter statute.’ " Id. at 668 (citation omitted). For these reasons, the Fourth Circuit rejected the government's contention that § 404(b)'s "as if" clause limits a sentencing court to only those adjustments set forth in §§ 2 and 3 of the Fair Sentencing Act. The Circuit Court stressed that § 404(b) "also expressly permits the court to ‘impose a reduced sentence.’ Not ‘modify’ or ‘reduce,’ which might suggest a mechanical application of the Fair Sentencing Act, but ‘impose.’ " Id. (citing First Step Act, § 404(b)). Based on that text, the Circuit Court concluded that "when ‘imposing’ a new sentence [under § 404(b) ], a court does not simply adjust the statutory minimum; it must also recalculate the Guidelines range" and correct any Guidelines errors otherwise present in the defendant's sentence. Id.
Section 3582(c)(1)(B) provides:
The court may not modify a term of imprisonment once it has been imposed except that - (1) in any case - (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure [emphasis added].
Section 3582(c)(2) provides:
The court may not modify a term of imprisonment once it has been imposed except that 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.
Other courts have similarly concluded that a § 404 resentencing requires a sentencing court to apply even non-retroactive changes in sentencing jurisprudence. See, e.g., United States v. Springs , 2019 U.S. Dist. LEXIS 122459, at *7, 2019 WL 3310092, at *2-3 (W.D.N.C. July 23, 2019) (applying Apprendi and Alleyne to the First Step Act, even though not retroactively applicable on collateral review) (collecting cases); Wright v. United States , 425 F. Supp. 3d 588, 595-96 (E.D. Va. 2019) (in imposing a new reduced sentence under the First Step Act, a court must consider Booker and its related case law since ‘the law in effect at the time governs sentencing.’ ") (internal citations omitted); United States v. Smith , 379 F. Supp. 3d 543, 546 (W.D. Va. 2019) ("Congress, when drafting the First Step Act in 2018, surely did not intend for courts to disregard the [intervening] years of Supreme Court federal sentencing jurisprudence and this court declines to do so."); see also United States v. Bennett , No. 4:08-CR-00367-TLW-5, 2020 WL 3037199, at *3 (D.S.C. June 5, 2020) (reducing, pursuant to § 404(b), a defendant's period of supervised released from eight to five years after correcting the defendant's § 851 information, which retained an invalid predicate conviction under Simmons ).
In making those pronouncements, the Chambers court emphasized the underlying purpose of the First Step Act. In that regard, the Fourth Circuit observed that "[u]nder the First Step Act, Congress authorized the courts to provide a remedy for certain defendants," namely those sentenced for crack cocaine offenses, "who bore the brunt of a racially disparate sentencing scheme." Chambers , 956 F.3d at 674. Towards that end, Congress in the First Step Act gave retroactive effect to §§ 2 and 3 of the Fair Sentencing Act in order to give relief to those offenders who had received excessively harsh sentences before the Fair Sentencing Act's passage. As the Court observed in Wirsing , and again in Chambers , "defendants sentenced as career offenders were ‘automatically excluded’ from relief under Amendments 750 and 782 [addressing the disparities in sentences for crack cocaine and powder cocaine], which retroactively lowered the relevant base offense levels after the Fair Sentencing Act ... [and] [i]t was ‘[a]gainst this background’ that Congress enacted the First Step Act and attempted to fill such ‘gaps left by the Fair Sentencing Act.’ " Chambers , 956 F.3d at 673. Given these purposes and the words Congress used to effectuate that purpose, the Circuit Court recognized "the resulting absurdity" of construing § 404 of the First Step Act in a way that does nothing more than authorize the reduction of a sentence that would be "effectively irreducible." Id. at 673.
With heavy reliance on Chambers , Defendant contends that in determining whether to reduce a sentence under § 404, the Court should consider him under § 851 with only one, not two, predicate offenses, since his 1995 conviction, for which he received a suspended sentence, no longer qualifies as a § 851 predicate offense. Based on that position, Defendant requests that his enhanced mandatory Life sentence, imposed on Count 1, be reduced to 15 years, the now-applicable statutory mandatory minimum associated with a § 851 enhancement based on one predicate offense. [Doc. 253] at 15-18.
The government, which does not dispute that Defendant's 1995 Maryland state conviction no longer qualifies as a § 851 predicate offense, essentially seeks to limit Chambers ' application to its facts and repeats, in substance, the same contentions rejected in Chambers with respect to a Guidelines error. Specifically, the government contends that the Court is authorized to modify Defendant's sentence only to the extent "expressly permitted" by § 404 and therefore, can reduce Defendant's sentence only to the extent his sentence "would have been different if Section 2 or 3 of the Fair Sentencing Act of 2010 had applied at the initial sentence." [Doc. 255] at 7-10. Based on that construction of § 404, the government continues, this Court is not authorized to apply § 401 in connection with Defendant's resentencing, for which he is eligible under § 404. Id. ; see also First Step Act, § 401(c).
As restated by the government, Chambers reached the following "two basic conclusions," both of which pertain to the Guidelines and neither of which provides any relief to the Defendant: (1) the "First Step Act does not constrain courts from recognizing Guidelines errors;" and (2) any "Guidelines error deemed retroactive ... must be corrected in a First Step Act resentencing." [Doc. 255] at 9 (citing Chambers , 956 F.3d at 668 ).
The issue presented reduces to whether for purposes of imposing a reduced sentence under § 404, the intervening legislative changes in § 401 should be treated the same as the judicially-corrected Guidelines error in Chambers. The Court concludes that they should in light of Chambers , Wirsing , and the text and structure of the First Step Act.
First , as Chambers and Wirsing decided, § 3582(c)(1)(B), which authorizes the application of § 404, does not impose limitations on what may be considered in connection with a § 404 resentencing. Rather, any such limitations must come from § 404 itself. See Chambers , 956 F.3d at 668 ("[T]here is no reason to suppose that motions brought pursuant to section § 3582(c)(1)(B) are subject to the restrictions particular to § 3582(c)(2), which are grounded in the text of the latter statute.") (citation omitted); Wirsing , 943 F.3d at 185 ( Section 3582(c)(1)(B) imposes no limit on a court's exercise of its discretion in resentencing and "courts must look to the applicable statute to determine ‘the extent’ to which modification is ‘expressly permitted by [that] statute[,]’ ") (quoting 18 U.S.C. § 3582(c)(1)(B) ); see also Jones v. United States , 431 F. Supp. 3d 740, 747 (E.D. Va. Jan. 6, 2020) (" Section 3582(c)(1)(B) leaves the door wide open for Congress to grant whatever relief is necessary, which may or may not extend beyond the traditional scope of § 3582 motions."); United States v. Rose , 379 F. Supp. 3d 223, 232 (S.D.N.Y. 2019) ("Unlike the other three sentence modification provisions, however, § 3582(c)(1)(B) merely redirects courts to Rule 35 and any other sources of authority that may exist, without providing any substantive standard of its own.").
Second , § 404 does not limit what a court may consider in connection with a resentencing authorized by that statute, including specifically the reduced penalties in § 401. As Chambers recognized, § 404 satisfies § 3582(c)(1)(B)'s "expressly permitted" requirement; and § 404's "as if" reference to the retroactive application of § 2 or § 3 of the Fair Sentencing Act does not limit the Court's consideration to those statutory changes. 956 F.3d at 671-72. Thus, just as there is under § 404 "no limiting language to preclude the court from applying intervening case law," id. at 672, there is no limiting language to preclude the application of intervening legislative changes from which Defendant can benefit. This conclusion also squares with the general principle that "the law in effect at the time governs sentencing." United States v. Schaefer , 120 F.3d 505, 507 (4th Cir. 1997) (citing Hughey v. United States , 495 U.S. 411, 413 n.1, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ); see also 18 U.S.C. § 3553(a)(4)(A)(ii) (at sentencing, the Court must consider "the kinds of sentence and the sentencing range establish for—the applicable category of offenses committed ... as set forth in the guidelines—that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced"); U.S.S.G. § 1B1.11 ("The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced."). It also finds support in the Court's mandate under § 3553(a) to consider, in determining the particular sentence to be imposed, "the need ... to provide just punishment for the offense," 18 U.S.C. § 3553(a)(2)(A) ; "the kinds of sentences available [at the time of sentencing]," 18 U.S.C. § 3553(a)(3) ; and "the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6).
Third , the limitation expressed in § 401(c) do not preclude the Court from applying the reduced penalties in that section at the time of Defendant's resentencing under § 404.
As stated above, § 401 "shall apply to any offense that was committed before the date of enactment of this Act [December 21, 2018], if a sentence for the offense has not been imposed as of such date of enactment." First Step Act, § 401(c). Section 401(c) clearly contemplates the application of the the reduced penalties under § 851 in connection with "a sentence" "imposed" after December 21, 2018. Here, Defendant was originally sentenced in 2006; and the government contends that the limitation in § 401(c) independently precludes the Defendant from benefiting from the reduced penalties under § 851 when he is resentenced under § 404 because he had received "a sentence for the offense" as of December 21, 2018, and having once been sentenced for his offense as of December 21, 2018, he cannot benefit from the reduced penalties at a resentencing for the same offense that takes place after December 21, 2018. But the Court concludes otherwise from the text and structure of the First Step Act.
Section 401 is not self-executing; it confers no right to be resentenced based on its reduced penalties. Instead, a defendant must find some other statute, if one exists, that confers the right to be re-sentenced with the benefit of those reduced penalties. For the Defendant, that statute is § 404; and its authorization to apply the reduced penalties in § 401 at a resentencing issues out of the nature of the resentencing that occurs under § 404.
Indeed, there appears to be potentially many defendants who are unable to benefit from § 401 because they will not be eligible for a resentencing after the enactment of the First Step Act under any statute. For example, by its terms, § 404(c) provides no possibility for a reduced sentence (based on § 404(b), § 401(a), § 401(b), or otherwise) to a defendant (1) who was convicted of a "covered offense" committed after August 3, 2010; (2) who was sentenced (or previously-received a sentence reduction) pursuant to the statutory penalties for the "covered offense" in effect after August 3, 2010; or (3) who had already filed, after August 3, 2010, a motion pursuant to § 404 of the First Step Act that was denied on its merits after a complete review. First Step Act, §§ 404(a), (c).
Section 404(b) authorizes a court to "impose" a reduced sentence. As Chambers emphasized, the use of the word "impose" signifies that § 404 is not predicated on a pre-existing sentence that is simply modified; rather, the word "impose" contemplates a sentencing process that begins essentially ab initio , without any carry-over effect from the original sentence and with the full range of considerations typically at play during a sentencing, including the law in effect at the time of the sentencing and the sentencing factors under 18 U.S.C. § 3553(a). See Chambers , 956 F.3d at 674 (explaining that a sentencing court should apply "the § 3553(a) factors" and should "consider the movants' post-sentencing conduct" when exercising its discretion under § 404). For that reason, a reduced sentence imposed under § 404 is not in any sense a continuation of Defendant's original pre-First Step Act sentence, but rather the imposition of a new, never-before-imposed sentence. Defendant therefore will receive "a sentence for [a covered] offense" that "has not been imposed as of December 21, 2018" and the penalties to be applied are those that exist at the time of resentencing, including any reduced penalties enacted as part of the First Step Act. The Court's construction also reflects Congressional intent as best can be discerned from the text of the First Step Act. Section 404's retroactivity covers certain convictions that occurred before August 3, 2010; and § 401 applies to certain pre-First Step Act conduct. Had Congress intended to preclude someone in Defendant's position from obtaining the benefits of § 401 when resentenced under § 404 for a pre-Act offense, it could have easily stated that § 401 does not apply to anyone who had been originally sentenced on or before December 21, 2018; or it could have, as it did in § 404(c) or § 402(b), framed § 401's non-applicability in terms of when a defendant was convicted. Therefore, given the text and structure of the First Step Act, the imposition of a new sentence under § 404 without the benefit of the intervening changes in § 401 would reduce § 404, as the Fourth Circuit recognized in Chambers , to the "absurdity" of authorizing a reduction in a sentence that is "irreducible." Chambers , 956 F.3d at 673. For these reasons, the text of § 401(c) itself provides no sanctuary for the government's position.
Stated differently, Defendant's sentence no longer "has been imposed" as of December 21, 2018, but rather "had been imposed" as of that date, reflecting the essential difference between an act completed in the past, but with continuing effect, the present perfect tense ("has been imposed"), and one completed in the past with no current effect, the past perfect tense ("had been imposed"). See Meriam-Webster's Learners Dictionary, Past Perfect and Present Perfect Tenses , available at https://www.learnersdictionary.com/qa/Past-Perfect-and-Present-Perfect-Tenses (last updated Jan. 8, 2020) ("The present perfect tense says that an action was completed at a time before the present , and the results or consequences of the action are relevant now .... The past perfect tense says that an action was completed at a time before another action happened in the past .") (emphasis added); see also Carr v. United States , 560 U.S. 438, 448, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010) ("Consistent with normal usage, we have frequently looked to Congress' choice of verb tense to ascertain a statute's temporal reach."); United States v. Wilson , 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ("Congress' use of a verb tense is significant in construing statutes.").
Any reasonable debate on this issue would reflect at most an ambiguity within the First Step Act concerning whether a defendant eligible to receive a reduced sentence under § 404 benefits from the amendments enacted in § 401, which resolves in favor of the Defendant under the rule of lenity. See United States v. Santos , 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (holding that where one possible interpretation of criminal statute is more "defendant-friendly" than the other, the "rule of lenity dictates that [the defendant-friendly option] should be adopted."); see also United States v. Cutler , 36 F.3d 406, 408 (4th Cir. 1994) (holding that rule of lenity may apply to ambiguities found in the Sentencing Guidelines); United States v. Martin , 2019 U.S. Dist. LEXIS 103559, at *5, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019) (applying rule of lenity to § 404 of the First Step Act) (citing United States v. Fields , 113 F.3d 313, 325 (2d Cir. 1997) ("Simply put, the rule of lenity requires a sentencing court—when faced with an actual ambiguity over which of two penalties should apply—to select the lesser penalty.")).
It is worth noting in this regard that the lead authors and sponsors of the First Step Act, Sens. Dick Durbin (D-Ill.), Chuck Grassley (R-Iowa), and Cory Booker (D-N.J.), submitted an amicus brief in United States v. Mapuatuli , No. 19-10233, 2020 WL 2598024 [Doc. 22] (May 12, 2020), in which they endorsed the view, albeit in a case, unlike here, where the defendant's original pre-First Step Act sentence was vacated and the case remanded to the district court for a de novo resentencing after the passage of the First Step Act, "that courts resentencing pre-Act offenders must do so in conformity with Section 401[,]" id. at 25, and that "Congress intended for Section 401 to apply to both pre-Act offenders who have never been sentenced and those whose sentences are vacated, as both stand before the district court in an identical posture," id. at 15, since "had it intended to legislate contrary to settled law [i.e. , that the law at the time of sentencing applies] ... Congress could have limited the application of Section 401 to pre-Act offenders facing an ‘initial’ or ‘original’ sentencing proceeding simply by adding to Section 401(c) words to that effect," id. at 14-15.
For the foregoing reasons, the legislative changes enacted in § 401 of the First Step Act apply in connection with any resentencing that Defendant may receive under § 404(b).
4. Whether Relief is Warranted under § 404 of the First Step Act
Having determined that Defendant is eligible for the imposition of a reduced sentence under § 404, the Court must decide whether such a reduction is appropriate. To do so, the Court considers the factors set forth in 18 U.S.C. § 3553(a), see Chambers , 956 F.3d at 674, as well as the recidivist enhancement under 21 U.S.C. § 851, as applied both at the time of Defendant's 2006 sentencing and today.
a. Section 3553(a) Factors
Based on the § 3553(a) factors, the Court has considered the record pertaining to (1) Defendant's sentence relative to the nature and seriousness of his offense; (2) his personal history and characteristics; (3) the need for a sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (4) the need to afford adequate deterrence; (5) the need to protect the public from further crimes of the defendant; (6) the need to provide rehabilitative services; (7) the kind of sentences available; and (8) the need to avoid unwarranted sentencing disparities among defendants with similar records found guilty of similar conduct. See 18 U.S.C. § 3553(a)(1)-(6). Importantly, these considerations are to be assessed against the overarching principle that a sentence is to be sufficient, but no greater than necessary, for these purposes, 18 U.S.C. § 3553(a). In making that decision, the Court has, as permitted, particularly considered Defendant's conduct in custody, which "provides the most up-to-date picture of [his] ‘history and characteristics,’ " Pepper v. United States , 562 U.S. 476, 492, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (citing 18 U.S.C. § 3553(a)(1) ); see also Chambers , 956 F.3d at 675 (appropriate to consider post-sentencing conduct under § 404 resentencing).
As to the nature and seriousness of his offenses relative to his sentence, Defendant's offenses were undoubtedly serious, involving large quantities of drugs, and must be considered in connection with his prospects for recidivism and his level of dangerousness to the public, were he released. But that underlying offense conduct must also be considered relative to the sentence he received, the time he has already served, and any reduced sentence he would receive today, including the currently applicable statutory mandatory minimums, and the other § 3553(a) factors. For that purpose, the Court has also considered his post-incarceration rehabilitation, as discussed below, his age at which he was convicted, the nature of his prior criminal history, and the age when he would complete any particular sentence.
As to Defendant's personal characteristics, Defendant qualified as a recidivist offender based on comparatively low-level drug offenses committed when he was in his early twenties. PSR ¶¶ 52-53. Defendant, having served more than 14 years in BOP custody, is now 46 and as discussed below, has demonstrated a commitment to lawful behavior. He has a minimal disciplinary record while incarcerated, with a lone disciplinary infraction for mail abuse in 2012. [Doc. 256-1] at 1-2. Indeed, according to Defendant's May 2020 Progress Report, Defendant "displays independent living skills commensurate with institution or community opportunities ... engages in purposeful activity, develops abilities useful in the acquisition and maintenance of post-release employment and pursuit of career goals." Id. at 1. In addition, Defendant has earned his G.E.D. diploma, see [Doc. 243] at 20 (Maine High School Equivalency Diploma), earning well above-average scores in language arts-reading (99th percentile) and social studies (93rd percentile), id. at 21, and has engaged in adult education classes in sports biography, Sherlock Holmes, Last of the Mohicans, Ivanhoe, anger management, communication, leadership, and stock market investing, among others, id. at 26-30. Defendant has served as a successful mentor to other inmates, participating in the Challenge Program, a cognitive behavioral treatment program designed to reduce antisocial behavior among male inmates at prisons. In fact, the Challenge Program coordinator at USP McCreary, where Defendant was previously incarcerated, commended Defendant for his "hard work and dedication," noting that "[y]ou [Defendant] have gone above our expectations" and "much of the program's success can be attributed to you and your thoughts, ideas and dedication to the program and positive change ...." Id. at 17-19.
Based on the above, and the § 3553(a) factors, as well as what sentence would promote respect for the law, avoid disparate sentencing results, provide just punishment for Defendant's offenses, and overall be "sufficient, but not greater than necessary," the Court concludes that Defendant is entitled to a reduction in his Life sentence under Court 1 and will impose a reduced sentence, to be determined after it obtains the benefits of a supplemental Pre-Sentence Report from the Pre-Trial Services and Probation Office and supplemental sentencing memoranda from counsel.
The Court does not decide, and does not need to decide at this point, whether Defendant is entitled to a "plenary" sentencing hearing under § 404, at which the Defendant has a right to appear, address the Court before being sentenced, raise arguments with respect to the resentencing, and/or present evidence and witnesses. See Fed. R. Crim. P. 32(i) ; 43(a)(3). Rather, after it receives the supplemental Pre-Sentence Report and briefing, it will consider what reduced sentence to impose, including whether any additional hearings or information are necessary.
B. Compassionate Release Motion [Doc. 246]
Defendant separately seeks a reduction of his Life his sentence on Count 1 pursuant to 18 U.S.C. § 3582(c)(1)(A) based on "extraordinary and compelling reasons."
The First Step Act also empowered courts to reduce a term of imprisonment if "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). Specifically, a court may now review a defendant's sentence "upon motion of the defendant," as opposed to a motion by the Bureau of Prisons ("BOP"), provided the defendant has exhausted all administrative remedies to appeal the BOP's failure to bring a motion, or if 30 days has lapsed "from the receipt of such a request by the warden of the defendant's facility," whichever is earlier. Id. Once a defendant has satisfied this exhaustion requirement, a court may modify a defendant's sentence if it finds that "extraordinary and compelling reasons warrant such a reduction," "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission," and if the applicable 18 U.S.C. § 3553(a) factors merit a reduction. 18 U.S.C. § 3582(c)(1)(A).
1. Exhaustion
First , the Court finds that Defendant has exhausted his statutory exhaustion requirement. A defendant exhausts his administrative remedies with the BOP if the BOP fails to bring a motion for compassionate release on his behalf and the defendant has finally appealed that decision or there has been "the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier[.]" 18 U.S.C. § 3582(c)(1)(A). Here, more than thirty days have elapsed since Defendant filed an internal request on March 27, 2020, seeking compassionate release. The Court therefore finds that Defendant has exhausted his administrative remedies and the Court may consider the Compassionate Release Motion on its merits.
2. "Extraordinary and Compelling" Reasons
A defendant seeking release under § 3582(c)(1)(A) must demonstrate "extraordinary and compelling reasons" that merit a sentence reduction. Here, Defendant contends that such reasons are demonstrated by way of the current COVID-19 pandemic and also the gross disparity between his mandatory Life sentence he received and the mandatory sentence he would be subject to today for the same offense.
Under 28 U.S.C. § 994(t), the United States Sentencing Commission is responsible for defining "what should be considered extraordinary and compelling reasons for sentence reduction" under § 3582(c)(1)(A). To that end, the relevant policy statement, propounded by the Commissions, defines "extraordinary and compelling reasons" to exist where (A) the defendant is suffering from a terminal or serious medical condition; (B) the defendant is over 65 years old, has failing health, and has served at least ten years or 75 percent of his sentence, whichever is less; (C) the caregiver of the defendant's minor child dies or becomes incapacitated, or the defendant's spouse or partner becomes incapacitated and the defendant is the only available caregiver; or (D) "other reasons," as determined by the BOP. U.S.S.G. § 1B1.13 cmt. n.1(A)-(D) (emphasis added).
Defendant does not fall into any of the specific categories listed above and relies, instead, on "other reasons," which under the current policy statement may only be "determined by the BOP." But that policy statement is, at least partially, inconsistent with the First Step Act. In particular, the statement indicates that review under § 3582(c)(1)(A)(i) is available only upon motion of the BOP, which is no longer the case. See U.S.S.G. § 1B1.13. Indeed, Congress amended § 3582 with the express goal of "increasing the use and transparency of compassionate release," First Step Act § 603(b), presumably because before the amendment—when § 3582(c)(1)(A)(i) exclusively depended on a BOP motion—the compassionate release statute was under-utilized. See United States v. Beck , 425 F. Supp. 3d 573, 587 (M.D.N.C. 2019) (the First Step Act amendments to § 3582(c)(1)(A)(i) "establish[ ] that Congress wants courts to take a de novo look at compassionate release motions"). As such, § 3582(c)(1)(A)(i), as this Court has previously concluded, vests courts with independent discretion to determine whether there are "other reasons" constituting "extraordinary and compelling reasons" to reduce a sentence, notwithstanding the Commission's specific criteria or any determination made (or not made) by the BOP. See United States v. Redd , No. 1:96-cr-6 (AJT), 2020 U.S. Dist. LEXIS 45977, 444 F.Supp.3d 717, 724–27 (E.D. Va. Mar. 16, 2020) ; see also United States v. Haynes , No. 93-cr-1043 (RJD), 2020 U.S. Dist. LEXIS 71021, 456 F.Supp.3d 496, 511–13 (E.D.N.Y. Apr. 22, 2020) (collecting cases).
Here, Defendant proffers two "extraordinary and compelling reasons" which, according to him, independently justify a reduction to his sentence. First , Defendant, citing his underlying health conditions, argues he remains at an elevated risk of infection and death from COVID-19 if he remains in custody. Second , Defendant argues that extraordinary and compelling reasons exist because "there is a gross disparity between the sentence [he] received and the sentence he would have received after the First Step Act." [Doc. 253] at 12-13 (citing Redd , 444 F.Supp.3d at 723 and United States v. Arey , No. 5:05-cr-00029, 2020 U.S. Dist. Lexis 83785, 461 F.Supp.3d 343, 350–51 (W.D. Va. May 13, 2020) ). The Court discusses each reason in turn.
a. COVID-19
Unquestionably, the COVID-19 pandemic is serious. It has debilitated civil society in unprecedented ways. At the same time, prison populations are particularly vulnerable to the disease. Nevertheless, while the global health crisis is no doubt extraordinary, it affects all prisoners; and the risk of being infected by COVID-19, standing alone, fails to justify an inmate's compassionate release. Instead, to prevail here, Defendant must demonstrate "both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility." United States v. White , No. 2:07-cr-150, ––– F.Supp.3d ––––, ––––, 2020 WL 1906845, at *1 (E.D. Va. Apr. 17, 2020) (quoting United States v. Feiling , No. 3:19-cv-112, 453 F.Supp.3d 832, 840–41 (E.D. Va. Apr. 10, 2020) ).
In that regard, Defendant is a 46-years old with, according to BOP medical records, morbid obesity, hypertension, varicose veins, painful blood clots, and asthma. [Doc. 253] at 13. And while much is still unknown about the disease, the Centers for Disease Control and Prevention has stated that "obesity, defined as a body mass index (BMI) of 30 or above, increases [the] risk of severe illness from COVID-19," as does hypertension. See People of Any Age with Underlying Medical Conditions, Centers for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#serious-heart-conditions (last updated July 20, 2020). As such, Defendant is particularly vulnerable to contracting COVID-19.
Nevertheless, Defendant has not established that there is "particularized risk of contracting the disease at his facility." White , ––– F.Supp.3d at ––––, 2020 WL 1906845, at *1. The number of COVID-19 cases at FCI Fort Dix, Defendant's place of incarceration, has steadily declined since Defendant filed his motion; and over the past month, the number of positive cases among all inmates (2,713) has decreased from 19 (as of June 10) to 2 (as of July 23), with no deaths and 37 inmates recovered. See also United States v. Guardian , Case No. 1:17-cr-27 (LMB), [Doc. 107] (June 23, 2020) (denying motion for compassionate release from inmate a FCI Fort Dix due to failure to show particularized risk of contraction at facility). These figures indicate that the situation at FCI Fort Dix is improving, not deteriorating. As such, Defendant is unable to convincingly allege a "particularized risk" of contracting COVID-19 at this time.
See Federal Bureau of Prisons, COVID-19 Tracker, available at: https://www.bop.gov/coronavirus/ (last accessed July 23, 2020).
For these reasons, the Court denies Defendant's motion for compassionate release based on his underlying medical reasons. The Court does so, however, without prejudice to Defendant's filing a renewed motion should his health or the conditions at FCI Fort Dix deteriorate.
b. Sentence Disparity
Separately, Defendant argues that his circumstances are "extraordinary and compelling" because of the dramatic disparity between his sentence and the sentence he would have received for the same conduct under the First Step Act. [Doc. 253] at 12.
There is no doubt that there is a gross disparity between the sentence Defendant received and the sentence he would have received after the First Step Act. See United States v. Urkevich , 2019 U.S. Dist. LEXIS 197408, at *8, 2019 WL 6037391, at *4 (D. Neb. Nov. 14, 2019) ("A reduction in [defendant's] sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed."). In that regard, the Court notes that, were Defendant sentenced today, his sentence with respect to Count 1 would be dramatically different. Instead of a mandatory Life sentence (predicated on two qualifying § 851 offenses), Defendant would today face a mandatory minimum sentence of 15 years (predicated on a single qualifying § 851 offense), with a substantially lower than Life Guidelines sentence. These changes are extraordinary and compelling developments that constitute extraordinary and compelling reasons justifying a reduction in Defendant's Life sentence. See Redd , 444 F.Supp.3d at 724–26 (finding as extraordinary and compelling the disparity between defendant's sentence at the time of his initial sentencing (603 months) and the sentence he would have received under today's sentencing regime (243 months) for the same offense conduct, a difference that was premised on Congress' repudiation of "stacked" 18 U.S.C. § 924(c) charges arising from a single indictment).
3. Other Factors
Having found that there exists an extraordinary and compelling reason that warrants a sentence reduction, the Court must next "consider[ ] the factors set forth in section 3553(a) to the extent they are applicable" to determine whether a reduced sentence is appropriate and if so, what that sentence should be. As discussed above, the Court has considered those factors and concludes that they weigh in favor of a sentence reduction in light of the present information available to the Court. In that regard, the underlying criminal conduct, while serious, did not involve any firearm or allegations of violence and his conduct during his nearly 15 years in prison is overwhelmingly positive and reflective of substantial rehabilitation. Moreover, Defendant has demonstrated, despite facing a Life sentence, a commitment to self-improvement and the improvement of others, receiving a commendation for his work with the Challenge program. Finally, it also appears, as evidenced by representations made by counsel, that Defendant has stable family ties, and employment opportunities. [Doc. 253] at 24-25.
For the above reasons, the Court alternatively concludes that there also exist extraordinary and compelling reasons warranting a reduction in Defendant's Life sentence on Count 1, to be determined following the submissions as directed herein.
III. CONCLUSION
Accordingly, it is hereby
ORDERED that Defendant's First Step Act Motion [Doc. 243] and Defendant's Compassionate Release Motion [Doc. 246] be, and the same hereby are, GRANTED to the extent the Court will impose a reduced sentence as to Count 1, to be determined, following the issuance of a supplemental Pre-Sentence Report, which Pre-Trial Services and Probation Office is directed to prepare and issue within forty-five (45) days of the date of this Memorandum Opinion and Order, and the filing of supplemental sentencing memoranda by counsel, to be filed within fifteen (15) days following the issuance of a supplemental Pre-Sentence Report; and are otherwise DENIED.
Statutory Sentencing Statutory Enhanced Penalty BEFORE Enhanced Penalty AFTER Provisions Penalty the First Step Act the First Step Act 21 U.S.C. 10-year 20-year mandatory minimum 15-year mandatory minimum §§ 841(a) & mandatory (if offense committed after one (if offense committed after 841(b)(1)(A) minimum prior conviction for a felony one prior conviction for a drug offense) serious drug felony or a serious violent felony) Life mandatory penalty (if offense committed after two or 25-year mandatory minimum more prior convictions for a (if offense committed after felony drug offense) two or more prior convictions for a serious drug felony or a serious violent felony)