Summary
rejecting the government's arguments in support of a conduct-based approach and noting, among other things, that such an approach "would restrict § 404 relief to a minuscule subset of cocaine base defendants"—namely, those "whose judicially-found relevant conduct fell within the small gaps (between 5 and 28 grams or between 50 and 280 grams) of the pre-and post-First Step Act statutory thresholds—rendering § 404 "virtually meaningless"
Summary of this case from United States v. MothersillOpinion
No. 2:02-CR-032
10-28-2019
UNITED STATES OF AMERICA v. NATHAN HOLT
MEMORANDUM AND ORDER
This criminal case is before the Court on the defendant's motion for sentence reduction. [Doc. 616]. Through counsel, the defendant asks the Court to reduce his sentence pursuant to Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, which retroactively applies certain provisions of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372. The government has responded in full opposition to the motion [doc. 617], and the defendant has submitted a reply. [Doc. 618]. For the reasons that follow, the defendant's motion will be granted.
I. Defendant's Eligibility for First Step Act Relief.
"Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but the rule of finality is subject to a few narrow exceptions." Freeman v. United States, 564 U.S. 522, 526 (2011) (internal citation and quotation marks omitted). One of those narrow exceptions is 18 U.S.C. § 3582(c)(1)(B), which provides that "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . ." The First Step Act, which was enacted on December 21, 2018, is one such statute.
Section 404(b) of the First Step Act instructs that the "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 of 2010 . . . were in effect at the time the covered offense was committed." A covered offense is "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010." First Step Act, § 404(a).
Section 404(c) of the First Step Act imposes additional limitations, none of which apply in this case.
Prior to the Fair Sentencing Act, 21 U.S.C. § 841 (as applied to the present defendant) mandated an enhanced sentence of life imprisonment for violations of section 841(a)(1) involving 50 grams or more of cocaine base. See 21 U.S.C. § 841(b)(1)(A)(iii) (2003). For 841(a)(1) violations involving five grams or more (but less than 50 grams) of cocaine base, the enhanced statutory penalty was ten years to life. See id. § 841(b)(1)(B)(iii). Since the enactment of the Fair Sentencing Act, the 841(b)(1)(A)(iii) penalties now apply only to offenses involving 280 grams or more of cocaine base, and the 841(b)(1)(B)(iii) penalties apply only to offenses involving 28 grams or more (but less than 280 grams) of cocaine base. See 21 U.S.C. § 841(b) (2019); Dorsey v. United States, 567 U.S. 260, 269 (2012).
The present defendant pled guilty to conspiring to distribute and possess with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count One). His Presentence Investigation Report ("PSR") deemed him responsible for a drug quantity of at least 2.4 kilograms.
The United States opposes the instant motion on multiple grounds. Primarily, it presents various arguments that the defendant is not eligible for First Step Act relief because he was not sentenced for a "covered offense" as defined by that legislation. Further, it is the United States' position that granting the instant motion (and those of similarly situated defendants) would result in "mass disparity" which would "defeat[] the plain Congressional intent in the First Step Act of assuring like treatment of like offenders." [Doc. 617, p. 3, 6].
As noted, the First Step Act defines a "covered offense" 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 of 2010 . . . ," First Step Act, § 404(a). The United States argues that the limitation "the statutory penalties for which were modified by" in fact describes the word "violation" rather than the immediately preceding words "a Federal criminal statute." In turn, the United States submits that the word "violation" means the entirety of a defendant's conduct—such as the drug quantity found in a PSR or the factual basis of a plea agreement—rather than the drug quantity threshold of the statute of conviction. Therefore, according to the government, a court can still find a § 404 movant responsible (for statutory sentencing purposes) for the higher drug quantity from, for example, his PSR. That is so, says the government, because the Constitutional safeguards of Alleyne were not "in effect at the time the covered offense was committed," First Step Act, § 404(b), and the holdings of those cases are not to be applied retroactively. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (With the exception of prior convictions, facts that increase a crime's penalty beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.); Alleyne v. United States, 570 U.S. 99, 114-16 (2013) (extending Apprendi's holding to facts that increase statutory minimums).
A venture into the definitional morass of the United States' "violation" argument is unnecessary because this Court finds that the First Step Act uses the words "the statutory penalties for which were modified by" to describe the immediately preceding words "a Federal criminal statute." See, e.g., United States v. Rose, 379 F. Supp. 3d 223, 228 (S.D.N.Y. 2019) (persuasively explaining that § 404(a)'s "'penalties' clause modifies the adjacent noun phrase, 'Federal criminal statute[,]'" rather than the more distant noun, "violation."). "Here, the "penalties clause' is most naturally read as modifying 'Federal criminal statute,' the noun phrase immediately next to it." Id.
Further, this Court agrees with those cases which have rejected the United States' Alleyne argument. True, Apprendi and Alleyne do not retroactively apply on collateral review, but the majority of courts to thus far consider the issue have concluded that those cases' holdings are nonetheless applicable to § 404. See, e.g., United States v. Burke, No. 2:08-CR-63(1), 2019 WL 2863403, at *3 (E.D. Tenn. July 2, 2019) (Greer, J.) (collecting cases). "[I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar with . . . important precedents . . . and that it expected its enactment to be interpreted in conformity with them." Cannon v. Univ. of Chicago, 441 U.S. 677, 699 (1979); accord Burke, 2019 WL 2863403 at *3 (collecting cases). "The First Step Act neither directs nor implies that the Court should perpetuate the application of an unconstitutional practice when determining a new sentence that complies with the Act's directives, and many courts faced with the issue have applied the Apprendi rule in First Step Act re-sentencings." United States v. Stone, No. 1:96 CR 403, 2019 WL 2475750, *2 (N.D. Ohio June 13, 2019) (collecting cases).
In his plea agreement the instant defendant stipulated that he conspired to distribute and possess with the intent to distribute at least 2.4 kilograms of a mixture and substance containing a detectible amount of cocaine base. [Doc. 212]. It would unjust for this Court to hold the defendant statutorily accountable for that amount for purposes of First Step Act eligibility. There are lower burdens of proof at sentencing, where also the Federal Rules of Evidence do not apply. "Many things might have been different if this crime had been committed and charged years later or the Fair Sentencing Act had been passed years earlier, and the Court is unwilling to engage in a series of hypotheticals about what might have happened had aspects of the case been fundamentally altered." United States v. Dodd, 372 F. Supp. 3d 795, 799 (S.D. Iowa 2019).
Thus,
eligibility under the language of the First Step Act turns on a simple, categorical question: namely, whether a defendant's offense of conviction was a crack cocaine offense affected by the Fair Sentencing Act. If so, the defendant is categorically eligible for consideration regardless of actual quantities. The particular quantities affect only the Court's discretionary call on whether to grant a reduction in sentence.United States v. Boulding, 379 F. Supp. 3d 646, 648, 651, 654 (W.D. Mich. 2019).
. . .
. . . This is a categorial decision based on the type of prior conviction, not any particular quantity determination. The Court then determines whether to exercise its discretion to reduce the defendant's sentence. . . . Based on this information, the Court will then determine the extent of any reduction it decides in its discretion to award, consistent with statutory limits, non-binding guideline considerations, and the Section 3553 factors.
This Court is not persuaded by the United States' predictions of "an odd result" of "profoundly unfair and illogical disparities." [Doc. 1449, p. 5, 6]. An "odd result," in this Court's eyes, would flow instead from the conclusion that Congress intended for § 404 to apply only to those few pre-Fair Sentencing Act defendants whose judicially-found relevant conduct fell within the small gaps (between 5 and 28 grams or between 50 and 280 grams) of the pre- and post-First Step Act statutory thresholds. In this Court's experience, based on more than thirty years on the federal bench, the government's proposed interpretation would restrict § 404 relief to a miniscule subset of cocaine base defendants. Stated differently, § 404 would be virtually meaningless, and courts "should not lightly conclude that Congress enacted a self-defeating statute." Quarles v. United States, 139 S. Ct. 1872, 1879 (2019).
No matter which way this or any other Court rules on the current wave of § 404 motions, one party (or, most likely, both) will be able to continue conjuring examples of resultant disparity. However, relevant conduct remains a bedrock component of the guideline range calculation, thus serving to limit discrepancies in sentencing.
As noted, the instant defendant pled guilty to conspiring to distribute and possess with the intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Section 2 of the Fair Sentencing Act of 2010 modified the statutory penalties for that federal criminal statute. See Fair Sentencing Act, 124 Stat. 2372. The defendant committed his crimes from 2001 through 2002. Thus, he was sentenced by this Court for "a covered offense" and is eligible to be considered for First Step Act relief.
II. Factual Background
In this case, by judgment dated October 14, 2003, the Court imposed a term of imprisonment of life. As was then the practice in this district, the judgment included no term of supervised release to follow the life sentence. [PSR ¶¶ 84-85].
The defendant's guideline range would have been 292 to 365 months, based on his status as a Career Offender, a total offense level of 35, and a criminal history category of VI. However, due to the statutory minimum, his guideline range was restricted to life.
III. Analysis
As noted, the defendant's motion is authorized by the First Step Act because he was sentenced in this Court for "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010." First Step Act, § 404(a). Specifically, the defendant's enhanced statutory term of imprisonment was reduced by section 2 of the Fair Sentencing Act from a mandatory term of life to a range of ten years to life.
Applying the 2018 guidelines manual, the defendant's guideline range is now 262 to 327 months. Because his Career Offender base offense level is now higher than his controlled substance base offense level, the total offense level drops from 35 to 34. The criminal history category remains VI, and the mandatory minimum as noted is now only 120 months.
The Court has considered the filings in this case, along with the relevant 3553(a) factors. The Court has also reviewed the defendant's Bureau of Prisons SENTRY Report and has refamiliarized itself with the defendant's PSR.
Disturbingly, the PSR scored a staggering 36 criminal history points, including multiple instances of violence. The defendant has also incurred three disciplinary sanctions while in Bureau of Prisons custody, but those matters have been sufficiently sanctioned administratively.
Conversely, the Court is impressed with the vocational and educational coursework that the defendant has completed while incarcerated. The Court is also pleased with the defendant's post-sentencing work history, and with his participation in the Bureau of Prisons Psychology Services' Suicide Watch Companion Team. [Doc. 616, ex. 1, 2].
Having weighed these issues, the Court is satisfied that a sentence reduction is warranted. The defendant's sentence will be reduced to 262 months.
The defendant's request for a plenary resentencing hearing will, however, be denied. The First Step Act does not expressly require such a proceeding, and the Court does not find one necessary in this case. See e.g., United States v. Hardin, Nos. 2:99-CR-36, 2:03-CR-74, 2019 WL 2519887, at *3 (E.D. Tenn. June 18, 2019); United States v. Lawson, No. 1:03CR398, 2019 WL 1959490, at *3 (N.D. Ohio May 2, 2019).
IV. Conclusion
For the reasons provided herein, the defendant's motion for sentence reduction [doc. 616] is GRANTED. The defendant's term of imprisonment is reduced to 262 months, with no term of supervised release to follow.
The Court lacks authority to undo the omission of a supervised release term in the original judgment. See generally United States v. Robinson, 368 F.3d 653 (6th Cir. 2004); United States v. Burd, 86 F.3d 285 (2d Cir. 1996). As such, the Court strongly recommends that the Bureau of Prisons afford the defendant the maximum available halfway house placement to assist in his successful reentry into the community. --------
Except as provided herein, all provisions of the judgment dated October 14, 2003, shall remain in effect.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge