Opinion
Case No. 2:08-CR-00018
02-03-2014
UNITED STATES OF AMERICA, Plaintiff, v. RONNIE W. HALL, Defendant.
JUDGE ALGENON L. MARBLEY
OPINION & ORDER
This matter is before the Court on Defendant Ronnie Hall's Motion to Reduce Sentence (Doc. 57). Defendant asks the Court to apply the new Sentencing Guidelines to reduce retroactively his sentence under 18 U.S.C. § 3582, on account of the November 1, 2010, changes to the Sentencing Guidelines regarding the penalties for possession with intent to distribute cocaine base, also known as "crack cocaine." The United States opposes, on the grounds that the Sixth Circuit's recent decision in United States v. Blewett, No. 12-5226, 2013 WL 6231727 (6th Cir. Dec. 3, 2013) (en banc) forecloses relief. (Doc. 59). For the reasons set forth herein, Defendant's motion is DENIED.
I. BACKGROUND
On January 9, 2009, Defendant pleaded guilty to one count of possession with intent to distribute more than 5 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and one count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Doc. 29). On July 10, Defendant was sentenced to 60 months incarceration on both counts, to be served consecutively, as well as five years supervised release on each count, to run concurrently. (Doc. 49). Judgment was entered on July 14, 2009. (Doc. 49, 51).
On July 24, 2013, Defendant filed his Motion to Reduce Sentence. (Doc. 57). Defendant argues that at sentencing, the Sentencing Guidelines calculation determined a sentencing range of 77 to 96 months' incarceration. (Id. at 2). Defendant acknowledges that he was sentenced below the Guidelines range, to the statutory mandatory minimum of 60 months on the crack cocaine charge. (Id.). Defendant asserts, however, that after the November 1, 2010, amendments to the Sentencing Guidelines are applied, pursuant to 18 U.S.C. § 3582, his base offense level is reduced, and the Guidelines range is therefore 41 to 51 months. (Id.). Accordingly, Defendant asks for his sentence to be reduced to 41 months' incarceration. (Id.).
The United States responds that the requested relief is barred by the Sixth Circuit's recent decision in United States v. Blewett, No. 12-5226, 2013 WL 6231727 (6th Cir. Dec. 3, 2013) (en banc). The United States characterizes Defendant's Motion as seeking relief pursuant to the Fair Sentencing Act of 2010, which Defendant does not reference. (Doc. 59 at 1). It assumes that Defendant must be seeking relief pursuant to United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), where a panel of the Sixth Circuit held that mandatory minimum sentences reduced by the Fair Sentencing Act apply retroactively. (Id.). According to the United States, the Sixth Circuit's en banc decision last month made clear that the Fair Sentencing Act does not apply retroactively to defendants whose sentences became final before the effective date of the Act. (Id.). Since Defendant's sentence was final in 2009, the United States concludes, the Act does not apply to him. (Id. at 2).
II. LAW AND ANALYSIS
While Defendant frames his argument in terms of the retroactive application of the Sentencing Guidelines, the United States argues instead only with regard to the Fair Sentence Act of 2010. Neither party succeeds in presenting the entire picture.
The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat 3207 (October 27, 1986) ("the 1986 Act"), established mandatory minimum sentences for possession with intent to distribute cocaine base. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). On August 3, 2010, Congress amended the 1986 Act by enacting the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010) ("the Act"). The Act increased the amount of crack cocaine needed to activate the same mandatory minima set in the 1986 Act. See id. § 2. Pursuant to the Act, the United States Sentencing Commission was directed to "promulgate the guidelines, policy statements, or amendments provided for in this Act." Id. at § 8. Accordingly, on October 27, 2010, the Sentencing Commission promulgated its "Cocaine Base Amendment," 75 Fed. Reg. 66188 (Oct. 27, 2010), which, among other things, amended § 2D1.1 of the United States Sentencing Guidelines by increasing the amount of cocaine base necessary to trigger an increased offense level. Id. at 66189.
In general, the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide." 1 U.S.C. § 109. As used in § 109, "repeal" includes re-enactments with different penalties, "whether the re-enacted legislation increased or decreased the penalties." Warden v. Marrero, 417 U.S. 653, 660 (1974). Thus, there is a presumption that a law which reduces statutory penalties does not apply to penalties incurred before the new law takes effect. Blewett, 2013 WL 6231727, at *2.
In Blewett, the Court of Appeals concluded that the new mandatory minima under the Fair Sentencing Act did not apply retroactively to sentences that were final before the passage of the Act. Id. The defendants in that case had been convicted for possession with intent to distribute crack cocaine and sentenced to the mandatory minimum of five years' incarceration. Id. After the passage of the Act, the defendants moved for a sentence reduction, on the grounds that the quantities of crack cocaine in their possession fell short of the new thresholds set by the Act, and thus they should benefit from the newly reduced penalties, despite the fact that they were sentenced before the Act took effect. Id. at *2. A three-judge panel of the Court of Appeals agreed, finding that the racially disparate impact of the pre- and post-Act crack cocaine mandatory minima violated the Fourteenth Amendment's guarantee of Equal Protection, and that the operation of 18 U.S.C. § 3582(c)(2) applied the Act retroactively. 719 F.3d at 487, 491.
Sitting en banc, the Court of Appeals reversed. The en banc majority held that, "consistent with the decisions of every other court of appeals in the country," the Act does not "retroactively undo final sentences." Id. at *1. The Court of Appeals looked to the six factors identified in Dorsey v. United States, 132 S. Ct. 2321 (2012), to conclude that the Act does not have retroactive application to sentences that became final before the effective date of the Act. The court reasoned that the Act does not overcome Section 109's presumption of non-retroactivity, since the Act does not have a "clear statement or clear implication" to that effect, and since a defendant's sentence normally depends on the rules "in effect on the date the defendant was sentenced." 2013 WL 6231727, at *2 (quoting Dorsey, 132 S.Ct. at 2332). According to the Court in Dorsey, the language of the Fair Sentencing Act implied that Congress intended that the relevant sentencing law in effect on the date of initial sentencing should apply. Id. Furthermore, the Court of Appeals noted that the problem of "disparate treatments" would not be an issue here, since "[t]he new minimums apply to everybody sentenced after the Act, and the old minimums apply to everybody sentenced before it." Id. at *3. The majority found support for its conclusion in the "principle of finality," as well as in the fact that Congress required the Sentencing Commission to draft new sentencing guidelines and apply them to "all future sentences," but not to past sentences. Id.
A sentence is "final" when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). In this case, judgment was entered on July 14, 2009. (Doc. 51). The time for appeal lapsed 14 days later, on July 28, 2009. See Fed. R. App. P. 4(b)(1)(A).
Although Defendant did not raise this argument, the Court notes that the majority in Blewett went on to conclude that its holding did not violate Equal Protection. The court reasoned that "[n]o evidence shows that Congress acted with the purpose to discriminate when it refused to apply the Fair Sentencing Act to defendants—all defendants, white or black—sentenced before the Act took effect." 2013 WL 6231727 at *11 (emphasis in original).
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The en banc majority also rejected the proposition that 18 U.S.C. § 3582(c)(2) caused the Fair Sentencing Act to apply retroactively. Because it was Congress, not the Sentencing Commission, which "lowered these mandatory minimum penalties" by passing the Act, § 3582(c)(2) is inapplicable; that provision applies only to sentencing ranges decreased by the Commission. 2013 WL 6231727, at *8. Moreover, the majority held that although the Guidelines range applicable to the defendants had been decreased by the Sentencing Commission, and that this decrease was retroactively applied under § 3582(c)(2), nevertheless the defendants could not use the new Guidelines range to escape the statutory mandatory minimum under which they were sentenced. Id. at *9. To do so would be to transform impermissibly "a prospective law into a retroactive one." Id. Instead, § 3582(c)(2) "allows consideration only of retroactive amendments to the sentencing guidelines, with other sentencing elements—mandatory minimums—held constant." Id. The court found support in U.S.S.G. § 1B1.10 cmt. 1, which notes that a reduction in a defendant's term of imprisonment is not authorized under § 3582(c)(2) if "the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of [a] . . . statutory provision (e.g. a statutory mandatory minimum term of imprisonment)."
For the same reasons, Defendant's Motion in this case must also be denied. Defendant argues that, under the amended Sentencing Guidelines, his Guidelines range is 41 to 51 months incarceration. (Doc. 57 at 2). Defendant is correct that the new Sentencing Guidelines reduce his base offense level and his Guidelines range. Like the defendants in Blewett, however, a new Guidelines range cannot operate to undo the statutory mandatory minimum applicable to his sentence. Because Defendant's sentence was final well before effective date of the Fair Sentencing Act, his sentence is governed by the mandatory minimum which was in place at the time he was sentenced—that is, a mandatory minimum of five years imprisonment. A reduction in his Guidelines sentencing range which results in a sentence below the mandatory minimum is irrelevant. If the Court were to apply the lower sentence, it would transform the Act into a retroactive law, in direct conflict with the majority's conclusion in Blewett.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion to Reduce Sentence (Doc. 57) is hereby DENIED.
IT IS SO ORDERED.
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ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE