Opinion
4:92cr4013-WS
2019-11-13
UNITED STATES of America, v. Norris MOTHERSILL, Defendant.
Terry J. Flynn, Thomas F. Kirwin, Andrew Jabus Grogan, Corey J. Smith, Herbert Stanley Lindsey, James Michael Ustynoski, Karen E. Rhew-Miller, Michael J. Harwin, US Attorney Northern District of Florida, Tallahassee, FL, Steven Butler, Pensacola, FL, for United States of America. Gwendolyn Spivey, Federal Public Defender Office, Tallahassee FL, for Defendant.
Terry J. Flynn, Thomas F. Kirwin, Andrew Jabus Grogan, Corey J. Smith, Herbert Stanley Lindsey, James Michael Ustynoski, Karen E. Rhew-Miller, Michael J. Harwin, US Attorney Northern District of Florida, Tallahassee, FL, Steven Butler, Pensacola, FL, for United States of America.
Gwendolyn Spivey, Federal Public Defender Office, Tallahassee FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR RESENTENCING UNDER § 404 OF THE FIRST STEP ACT AND 18 U.S.C. § 3582(c)(1)(B)
WILLIAM STAFFORD, SENIOR UNITED STATES DISTRICT JUDGE
Before the court is Norris Mothersill's counseled motion (ECF No. 2288) for resentencing under § 404 of the First Step Act of 2018 and 18 U.S.C. § 3582(c)(1)(B). The government has responded (ECF No. 2311) in opposition to Mothersill's motion.
I.
In October 1992, Mothersill was one of seventeen individuals charged in a superseding indictment with offenses stemming from a large crack cocaine conspiracy. Eight of the codefendants, including Mothersill, went to trial and were convicted by a jury of multiple counts. I was the trial judge assigned to the case.
Mothersill is currently serving a life sentence in the Bureau of Prisons ("BOP"), having been found guilty of eight offenses, namely (1) conspiracy to commit racketeering (Count I); (2) racketeering (Count II); (3) conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base (commonly known as crack cocaine), and marijuana (Count III); (4) money laundering (Counts VIII and XVI); (5) malicious destruction of property used in interstate commerce by means of fire and explosives resulting in the death of a public safety officer (Count XXVIII); (6) witness tampering (Count XXX); and use of a firearm during and in relation to a drug trafficking offense (Count XXXI). With regard to the racketeering offense charged in Count II, the jury found that Mothersill committed five racketeering acts, namely (1) conspiracy to distribute cocaine, crack cocaine, and marijuana (Racketeering Act One "A"); (2) money laundering (Racketeering Acts Ten and Twenty); witness tampering (Racketeering Act Forty-One); and felony murder (Racketeering Act Forty-Two). Mothersill had no prior criminal convictions.
The court takes judicial notice of state court records in Jackson County, Case No. 92–190CF, which reveal that, on February 26, 1992, Mothersill, Willie Garrett, and four other men went to a crack house to carry out a planned robbery of persons at that residence. Following the robbery or attempted robbery, Willie Garrett and his companions, including Norris Mothersill, fled the scene in their automobile, during which flight Willie Garrett was shot to death by some person other than Mothersill. Mothersill was charged in Jackson County with felony murder, second degree, in violation of § 782.04(3), Florida Statutes. The state court charges were dismissed after Mothersill was sentenced in this court to life imprisonment.
It was alleged in the superseding indictment—in a section entitled "Introduction to All Counts"—that the "primary objective" of the conspirators was "to obtain money through ... the trafficking of illegal drugs and the theft of illegal drugs and/or illegal drug proceeds through the actual and threatened use of force and violence, including murder." ECF No. 245 at ¶ 1. "The primary drug of choice for the Enterprise was crack cocaine, and most of the cocaine obtained by the Enterprise was converted or ‘cooked’ into crack cocaine prior to distribution." Id. at ¶ 3. In Count III, the seventeen alleged coconspirators were charged with a drug conspiracy "in violation of Title 21, United States Code, Sections 841 and 841(b)(1)(A)(iii)." Id. at ¶ 67. The latter section— § 841(b)(1)(A)(iii) —set forth the applicable penalties for offenses involving fifty (50) grams or more of crack cocaine. The indictment thus made clear, as did the evidence at trial, that this case was—at its core—about a conspiracy to distribute crack cocaine.
No reference was made in Count III—or anywhere else in the superseding indictment—to the applicable penalty sections for cocaine and marijuana.
Mothersill faced a statutory maximum term of life imprisonment on Counts I, II, III, and XXVIII. While racketeering charges typically carry a maximum prison sentence of twenty (20) years, the maximum term is life in prison where "the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment." 18 U.S.C. § 1963(a). Mothersill's racketeering acts involving drugs and felony murder (Racketeering Acts One A and Forty-Two) increased the maximum statutory penalty on the racketeering ("RICO") offenses (Counts I and II) to life imprisonment.
Pursuant to the Sentencing Guidelines, Mothersill faced a term of life in prison on Counts I, II, III, and XXVIII based on a total offense level of 51 and a criminal history category I. On May 11, 1993, I sentenced Mothersill to concurrent terms of life imprisonment on Counts I, II, and III as required under the then-mandatory Guidelines. I sentenced Mothersill to the statutory maximum of twenty (20) years on the money laundering counts (Counts VIII and XVI), to the statutory maximum of ten (10) years on the witness tampering count (Count XXX), and to the statutorily required five (5) year sentence on the firearms count (Count XXXI). As to Count XXVIII (for malicious destruction of property), I departed downward, sentencing Mothersill to a term of 288 months. With the exception of the mandatory five-year sentence on the firearms count, all sentences were to be served concurrently. Because Mothersill is deemed—under Eleventh Circuit law—to have served his five-year sentence on Count XXXI first, he has now completed service of all sentences except the life sentences on Counts I, II, and III.
In regard to the firearms count, 18 U.S.C. § 924(c) (1992) provided that "the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment, including that imposed for the ... drug trafficking crime in which the firearm was used or carried."
See United States v. Briscoe , 724 F. App'x 796, 798–99 (11th Cir. 2018) (recognizing that a mandatory sentence under § 924(c) must be served before any other sentence, including any term of imprisonment for the underlying drug trafficking crime, citing Jackson v. United States , 976 F.2d 679, 682 (11th Cir. 1992) (emphasis added)); see also United States v. Player , 484 F. App'x 409, 411 (11th Cir. 2012) (same). Consistent with the Eleventh Circuit's first-sentence-to-be-served interpretation of § 924(c), as set forth in Briscoe, Jackson , and Player , Mothersill has already served his Count XXXI sentence.
II.
Through counsel, Mothersill seeks a reduction in his life sentences pursuant to the First Step Act of 2018, Pub. L. No. 115–391, § 404, 132 Stat. 5194 (enacted Dec. 21, 2018) (the "First Step Act"). The First Step Act made the Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372 (2010) (the "Fair Sentencing Act" or the "2010 Act"), retroactive to defendants who committed crack cocaine offenses prior to August 3, 2010. Section 404 of the First Step Act permits—but does not require—district courts to reduce the sentence of a defendant "as if sections 2 and 3 of the Fair Sentencing Act of 2010 ... were in effect at the time the covered offense was committed." First Step Act, § 404(b). "Covered offense" is defined in the First Step Act to mean "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." Id. § 404(a). Thus, under the First Step Act, the authority to reduce a sentence applies to (1) "covered offenses," namely, federal crack cocaine offenses, (2) committed before August 3, 2010, (3) for which the Fair Sentencing Act modified the statutory penalty range. Section 2 of the 2010 Act modified the statutory penalties for crack cocaine offenses by increasing the quantity of crack required to trigger the penalties of 21 U.S.C. § 841(b)(1). Specifically, the 2010 Act raised from 50 grams to 280 grams the amount of crack cocaine needed to trigger the penalties set forth in subsection (b)(1)(A), and it raised from 5 grams to 28 grams the amount of crack cocaine needed to trigger the penalties set forth in subsection (b)(1)(B). Because Congress in 2010 did not make these revised thresholds retroactive, defendants who had previously been sentenced could not obtain a sentence reduction based on the revised thresholds. That changed on December 21, 2018, when the First Step Act made the 2010 Act's revised drug-weight thresholds retroactive.
III.
Mothersill contends that he is eligible for a sentence reduction under § 404 of the First Step Act as to Counts I, II, and III. The government disagrees. Among other things, the government contends that Mothersill is not eligible for sentencing relief under the First Step Act because he was held responsible for fifteen (15) kilograms or more of crack cocaine, considerably more than the 280 gram threshold established by the Fair Sentencing Act of 2010. In other words, the government contends that eligibility for a sentence reduction under the First Step Act turns on the defendant's actual conduct as determined by the judge at sentencing. I have previously rejected this argument, and I do so again here.
See, e.g., United States v. Davis , No. 4:92cr4013–WS/CAS (ECF No. 2245); United States v. James , 4:90cr4051–WS/CAS (ECF No. 823); United States v. Robinson , No. 4:89cr4006–WS/CAS (ECF No. 852); United States v. Biggins , No. 4:93cr4028–WS/CAS (ECF No. 1148); United States v. Frazier , No. 94cr4071–WS/CAS (ECF No. 221); United States v. Clark , No. 4:95cr4034–WS/ CAS (ECF No. 213); United States v. Clarke , No. 4:92cr4013–WS/CAS (ECF No. 2282); United States v. Johnson , No. 4:92cr4013–WS/CAS (ECF No. 2322).
I have instead concluded that the offense charged in the indictment, and not a defendant's actual conduct, controls the question of eligibility for a sentence reduction under the First Step Act. Many district courts around the country have reached the same conclusion. See, e.g. , United States v. Holt , No. 2:02-CR-032, 2019 WL 5568906, at *3 (E.D. Tenn. Oct. 28, 2019) (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"); United States v. Williams , 402 F.Supp.3d 442, 448 (N.D. Ill. 2019) (rejecting the government's arguments, concluding that "the straightforward reading of ‘offense’ is that it refers to the offense of conviction, not the defendant's related conduct."); United States v. Askins , No. CR-02-00645-001-PHX-SRB, 2019 WL 3800227, at *5 (D. Ariz. Aug. 6, 2019) (adopting a "statute-focused" approach, finding no merit to the government's arguments in favor of a conduct-based approach); United States v. White , No. 99-CR-628-04, 2019 WL 3228335, at *2 n.1 (S.D. Tex. July 17, 2019) (listing forty-two (42) cases finding that the statute of conviction controls eligibility for § 404 relief); United States v. Booker , No. 07cr843–7, 2019 WL 2544247, at *2 (N.D. Ill. June 20, 2019) (noting that "nearly every court to address the issue agrees ... [that] eligibility for relief under the First Step Act is determined by the amount charged in the indictment"); United States v. Martinez , No. 04cr48–20 (JSR), 2019 WL 2433660, at *2 (S.D.N.Y. June 11, 2019) ("[T]he phrase ‘violation of a Federal criminal statute’ refers to the amount charged in the indictment ..., not the amount attributed to [a defendant] by judicial finding."); United States v. Boulding , 379 F. Supp. 3d 646, 651 (W.D. Mich. 2019) (explaining that "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.").
IV.
In this case, Count III of the superseding indictment alleged that the drug conspiracy was "in violation of Title 21, United States Code, Sections 841 and 841(b)(1)(A)(iii)." ECF No. 245 at ¶ 67. Mothersill committed his Count III offense at a time when § 841(b)(1)(A)(iii) set forth a ten-years-to-life penalty range for offenses involving fifty (50) grams or more of crack cocaine. The 2010 Fair Sentencing Act modified § 841(b)(1)(A)(iii) by raising the crack threshold from fifty (50) grams to 280 grams. Under that 2010 Act, the penalty range for an offense involving fifty (50) grams of crack cocaine is now five (5) to forty (40) years, as set forth in § 841(b)(1)(B)(iii). Because the penalty range for Mothersill's crack conspiracy offense was modified by the 2010 Fair Sentencing Act, I find that Mothersill is eligible for a sentence reduction as to Count III.
Whether I may also impose a reduced sentence on Counts I and II—i.e., the RICO counts—is less clear. The government opposes a reduction on the RICO counts, largely because Mothersill's underlying racketeering acts included felony murder, which drove the guideline scoring of the RICO counts. In response to a codefendant's similar First-Step-Act request for a reduced sentence on the RICO counts, the government phrased the key question as: "When, if ever, does the 2018 [First Step Act] authorize a court to reduce a concurrent sentence for a non-crack offense when the defendant is eligible for relief on a covered crack offense?" ECF No. 2308 at 3. The government answered its own question as follows:
[T]he government's position is that if a defendant received a sentence for a covered offense that is concurrent to sentences for a non-crack offense, the court may impose a new sentence that has the effect of reducing the terms of imprisonment for the non-crack offenses if (and only if) the sentences for those offenses would have been different had §§ 2 and 3 of the 2010 [First Step Act] been in effect at the time of the original sentencing. But if, by contrast, the defendant received a concurrent sentence for a non-crack offense, and there is no indication that the statutory penalties for the crack count had any role in determining
the sentence for the non-crack offense, that is a valid reason for denial of relief, even if the defendant is eligible for a lower sentence on the crack count.
Id. at 5–6. The government conceded that if the codefendant, Patricia Clarke, were deemed eligible for a sentence reduction on Count III under the indictment-controls approach, then she would also be eligible for a sentence reduction on the two RICO counts because Clarke's underlying racketeering activity—namely, the crack offenses—drove her sentences on Counts I and II. Clarke's underlying racketeering activity did not include a felony murder.
In Mothersill's case, Counts I and II were scored based on Mothersill's most serious underlying criminal activity, the felony murder. Guidelines § 2A1.1 establishes a base offense level of 43 for first degree murder; Guidelines § 2A1.2 establishes a base offense level of 33 for second degree murder. The commentary to § 2A1.1 explains that "this guideline also applies when death results from the commission of certain felonies [but] [l]ife imprisonment is not necessarily appropriate in all such situations." Application Note 1. Mothersill's RICO counts were grouped together and scored under § 2A1.1, resulting in a base offense level of 43. With adjustments for role in the offense and obstruction of justice, Mothersill's adjusted offense level for Counts I and II was a level 48.
At sentencing, Mothersill's counsel objected to the scoring of the RICO counts under § 2A1.1, explaining that Mothersill did not fire the shot that killed Willie Garrett and, under state law, could not be convicted of first degree felony murder. Counsel suggested that § 2A1.2, the section applicable to second degree murder, better fit Mothersill's offense. While I was not unsympathetic with that suggestion, I overruled counsel's objection and declined to grant a downward departure, knowing that, if the RICO counts were not scored under § 2A1.1, they would be scored under § 2D1.1, based on the next most serious underlying racketeering act, which was Racketeering Act One A, involving the conspiracy to distribute fifteen kilograms or more of crack cocaine. If the RICO counts had been scored under § 2D1.1, as they were for codefendants Patricia Clarke and Egnatius Johnson, Mothersill's adjusted offense level would have been 47, requiring the same life sentences that Clarke and Johnson received on the RICO counts. In my eyes, the life sentences imposed in this case were driven by the drug charges, and it was immaterial whether Mothersill's felony murder was treated as a first or a second degree offense. It would not have been fair to impose a lesser sentence on Mothersill for RICO violations than I had imposed on his codefendants whose RICO counts were scored under the crack guidelines.
If , however, the 2010 Fair Sentencing Act had been in effect at the time, such that the crack offenses charged in this case were subject to the statutory maximum sentence of forty years under § 841(b)(1)(B)(iii) instead of the statutory maximum of life under § 841(b)(1)(A)(iii), then—more likely than not—I would have granted Mothersill's request for a departure from the guideline range of life on the RICO counts. I would have done so—more likely than not—to avoid sentencing Mothersill to life imprisonment based on a felony racketeering act when Mothersill was not the triggerman who killed his associate, and—if he had been prosecuted to completion for second degree felony murder in state court—a life sentence would have been highly unlikely. Thus, had the 2010 Fair Sentencing Act been in effect at the time of sentencing, Mothersill's sentences on Counts I and II would likely have been different.
To compare—Michael Morgan, one of Mothersill's codefendants, also committed a felony murder during the course of this conspiracy. As the triggerman who shot another drug dealer in the back of the head during a drug deal gone bad, Morgan was charged in state court with first degree murder, pleaded guilty to second degree murder, and was sentenced to twenty-two years in state prison, where he served ten (10) years before he was transferred to federal custody to begin serving his sentences in this case.
Because the crack offenses clearly affected Mothersill's sentences on Counts I and II, I find that Mothersill is eligible for a sentence reduction not just on Count III but on Counts I and II as well.
V.
Mothersill is now fifty-eight (58) years old, having served more than twenty-seven (27) years in the BOP as a first offender. During his long years in confinement, Mothersill has received only nine (9) disciplinary incident reports, all of which were for relatively minor offenses. Since May of 1997, he has received only two disciplinary reports, both for possessing an unauthorized food item (a pound of flour and an onion). As reflected in his BOP Progress Report dated September 23, 2019, Mothersill is not considered a management concern, has maintained clear conduct since August 30, 2012, has successfully completed numerous educational, vocational, and recreational programs, and has received satisfactory evaluations in his work as a Unit Orderly and Food Service Cook. ECF No. 2323.
On October 8, 2019, BOP Re-Entry Unit Manager Gary Lee authored a "Letter of Recognition of Norris Mothersill's Superior Program," based on his observations of Mothersill over the course of eighteen (18) years. ECF No. 2313, Ex. A. In that letter, Officer Lee recognized Mothersill's "efforts made toward and contributions to developing, facilitating and assisting staff and inmates in countless life-skills development and reentry preparation programs," described Mothersill as a "model inmate" of "impeccable behavior," and opined that "if given the opportunity, Mr. Mothersill will be a success and a huge asset to society." Id.
Mothersill's drug offenses were significant, involving the distribution of at least fifteen (15) kilograms of crack cocaine. For his crimes, he deserved and received a lengthy sentence and, thus far, has spent over twenty-seven (27) years in prison as punishment for those crimes. Given Mothersill's current age, the length of time he has been in prison, his commendable post-conviction rehabilitative efforts, and the positive reports from the BOP, I find that a reduction in Mothersill's sentences on Counts I, II, and III is now appropriate.
Accordingly, it is ORDERED:
1. Mothersill's motion (ECF No. 2288) for resentencing under the First Step Act is GRANTED.
2. Mothersill's sentences on all counts are REDUCED to time served.
3. Mothersill's term of supervised release is REDUCED to a term of four (4) years.
4. The Bureau of Prisons shall have up to ten (10) days to release Mothersill into the custody of Immigration and Customs Enforcement (ICE) for deportation proceedings. DONE AND ORDERED this 13th day of November, 2019.