Opinion
Crim. 3:02-cr-00072 (AWT)
12-05-2023
UNITED STATES OF AMERICA v. JERKENO WALLACE
ORDER DENYING MOTION FOR RESENTENCING UNDER SECTION 404 OF THE FIRST STEP ACT
ALVIN W. THOMPSON, UNITED STATES DISTRICT JUDGE
Defendant Jerkeno Wallace has moved for resentencing pursuant to Section 404 of the First Step Act, based on application of the Fair Sentencing Act of 2010. For the reasons set forth below, his Motion for Resentencing Under Section 404 of the First Step Act (ECF No. 718) is hereby DENIED.
I
On May 13, 2003, after a two-week trial, defendant Jerkeno Wallace and co-defendant Negus Thomas were convicted on charges related to a crack cocaine conspiracy lasting from May 16, 2001 until March 11, 2002 and the related murder of Gil Torres on May 16, 2001. As reflected in the Judgment, Wallace was found guilty of the following offenses charged in the Superseding Indictment:
Count 1: Conspiracy to Possess with Intent to Distribute, and to Distribute, 50 Grams or More of Cocaine Base, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii).
Count 5: Possession with Intent to Distribute, and Distribution of, Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
Count 11: Conspiracy to Use a Firearm During a Drug Trafficking Offense and During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(o).
Count 12: Drive-by Shooting, Murder, and Aiding and Abetting, in violation of 18 U.S.C. §§ 36(b)(2)(A), 1111(a), and 2. (The jury found that Wallace was guilty of First Degree Murder.)
Counts 13 and 14: Use of Firearm During and in Relation to a Drug Trafficking Offense and During and in Relation to a Crime of Violence, and Aiding and Abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(j)(1), and 2. (The conviction on Count 13 was vacated following the determination on appeal that Counts 13 and 14 were multiple convictions for a single unit of prosecution.)
“The United States Attorney General did not authorize the Government to seek the death penalty in this case. Thus the maximum penalty [was] life imprisonment.” Presentence Report (“PSR”) (ECF No. 719-1) n.2. Wallace was sentenced on December 12, 2003, as follows:
Count 1, life imprisonment
Count 5, 240 months
Count 11, 240 months
Count 12, life imprisonment
Counts 13 and 14, 120 months (consecutive)
As reflected by the fact that the beginning date for the conspiracy charged in Count 1 was the date on which Gil Torres was murdered, that murder was impetus for the investigation of people involved in the narcotics conspiracy. See PSR at 8-9 ¶ 35. The evidence presented by the government at trial concerning the murder of Gil Torres included the following:
On May 16, 2001, shortly before 3:00 p.m., as Millicent Bartney stepped from her residence at 68 Edgewood Street to greet her son at the bus stop near the intersection of Albany Avenue and Edgewood Street, she looked across the street and saw that two Puerto Rican males were robbing Negus Thomas. Bartney testified that Thomas was on the ground as his assailants pointed a gun at him. Bartney also saw that Thomas' long-time friend, Jerkeno Wallace, came to the area of the robbery with his pit bull in an attempt to help Thomas. Bartney saw Wallace stop when one of the assailants pointed the gun at Wallace and his dog. Bartney then saw Thomas get up from the ground and run up Edgewood Street toward Albany Avenue and 81-83 Edgewood Street.
Bartney has known Thomas for most of his life, and on May 16, 2001, Thomas and Wallace lived upstairs from her at 68 Edgewood Street.
Bartney quickly retreated into her apartment and called 911. The HPD recorded the call at 2:59:55 p.m. . . . Bartney testified that at no point did she hear Jerkeno Wallace go up the stairs to his residence after the robbery ....
Ms. Bartney's testimony about the robbery was corroborated by Lorenzo Martinez and Josie Torres, each of whom admitted that on May 16, 2001, they used a gun to rob a drug dealer on Edgewood Street. More specifically, Martinez explained that he stole approximately 5 grams of crack cocaine from a diminutive drug dealer while his cousin, Gil Torres, waited in their car (a Honda Prelude) and his other cousin, Josie Torres, protected them from a second person who had a pit bull. . . .
Josie Torres confirmed that he and Martinez committed the robbery. In addition, Torres identified Negus Thomas as the drug dealer and Jerkeno Wallace as the dealer's associate who had the pit bull. Torres also estimated that the shooting occurred within minutes of the incident on Edgewood Street.
With respect to the murder of Gil Torres, Martinez and his cousin, Josie Torres, both explained that after they drove from Edgewood Street, they were unaware of any danger. They traveled a short distance and stopped at a red light on Farmington Avenue near the Mark Twain House and Hartford Public High School. Suddenly, their Honda Prelude came under fire: the rear window of the Prelude was blown out; at least two bullets entered the vehicle and lodged in the car; and Gil Torres was shot. He slumped over the steering wheel and the Prelude careened forward, violently colliding with a school bus on the other side of the street. The Medical Examiner, Dr. Carver, testified that Torres was hit by two bullets. One of these bullets lodged in Torres' spine at the base of his neck, paralyzing him instantly and ultimately killing him.
....
Kimberly Cruze and Peter Pitter also testified at trial. In addition to explaining their knowledge of the crack distribution occurring on Edgewood Street (discussed below), each testified as to the events of May 16, 2001. Cruze testified that she lived on the first floor apartment of 81-83 Edgewood Street ....
With respect to the events of May 16, 2001, Cruze testified that shortly before 3:00 p.m., she was in the front yard area of 81 Edgewood Street. She recalled seeing a blue Buick that she associated with Thomas parked in her driveway. Cruze went into her first floor residence . . . . A few minutes later her daughter, age 16, came into the residence and told her that Thomas had been robbed. Cruze recalled that she went outside a few minutes later.
She did not see Thomas. She also noticed that the Buick was gone from the driveway. Sometime later, Cruze saw Thomas and Wallace in front of her house. Cruze asked Thomas what had happened, and he responded, "watch the news."
Peter Pitter also testified about the events of May 16, 2001. . . . Pitter explained that as he stood on the front lawn of 81 Edgewood Street, he saw Thomas flag down a small car and approach the vehicle in order to make a crack cocaine sale. Pitter then went upstairs to the second floor porch at 81 Edgewood Street. At that point he saw two large Puerto Rican males leave the car and point a gun at Thomas, who was forced to the ground.
As Pitter observed this incident, he initially thought that undercover police officers were arresting Thomas. Pitter realized his mistake, however, when he saw Thomas run from the robbers, who in turn sped off in their small car. As Thomas ran into the front porch area of 81 Edgewood Street, he shouted to Pitter, "did you see them rob me?" By Pitter's estimate, Thomas remained inside the residence for about twenty seconds. Pitter then saw Thomas hurry over to the Buick that was parked in the driveway; Thomas was clutching an item in his pant pocket that had not been there when he ran from his assailants.
Approximately twenty-five minutes later, Pitter observed the Buick return and park across the street. Thomas was driving. Wallace exited the passenger side of the car and, from Pitter's perspective, appeared to have something in his hands, which was concealed under the front of his shirt. Wallace went into 81 Edgewood Street for a few minutes before returning to the front of the house. When Pitter asked what had happened, Wallace ultimately stated that "we caught up to them over by the high school."
PSR at 5-8 ¶¶ 15-20, 28-32 (footnotes omitted).
As to the victim of the first degree murder, as summarized in the government's sentencing memorandum:
Gil Torres was paralyzed instantly from the bullet that ripped into his spine. He expired the next day, after his respiratory system failed. Wallace's response? “Good for homes, he shouldn't have robbed you.”
United States' Mem. in Aid of Sentencing (ECF No. 522) at 3. At the time of his death, Gil Torres was married to the mother of his two children. Victim impact letters were sent to his wife and his mother.
The government also presented extensive evidence concerning crack cocaine trafficking at 81-83 Edgewood Street, which is also summarized in the Presentence Report. See PSR at 8-10, ¶¶ 34-41.
II
Under Section 404 of the First Step Act, “[a] court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, 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.” First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. at 5222.
III
Wallace is currently serving concurrent life sentences for Counts 1 and 12, the crack cocaine conspiracy and the first-degree murder. He contends that the court “should exercise its discretion to resentence Mr. Wallace because his life sentence is far greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).” Mot. For Resentencing (ECF No. 718) at 3.
The parties are in agreement that Count 1 is a “covered offense.” They disagree about whether Wallace is eligible for resentencing on Count 12. The government maintains that
[b]ecause Wallace is serving concurrent life sentences for the crack conspiracy and first degree murder (Counts 1 and 12), the relief he's eligible for is entirely illusory unless that eligibility extends to resentencing on the first degree murder conviction, a non-covered offense.
Gov't's Opposition (ECF No. 741) at 10. Count 12 of the Superseding Indictment charged that the first-degree murder was committed “in furtherance of a major drug offense.” Superseding Indictment (ECF No. 186) at 7. That major drug offense was the offense charged in Count 1.
In United States v. Reed, 7 F.4th 105 (2d Cir. 2021), the court held that
a sentence arising from a multi-object conspiracy conviction involving a crack cocaine object, with a statutory penalty provision under 21 U.S.C. § 841(b)(1)(A)(iii) or 21 U.S.C. § 841(b)(1)(B)(iii), is a
“covered offense” under Section 404 that is eligible for a sentencing reduction.Id. at 110. As part of the explanation of its holding, the court stated:
Put simply, under the text of the First Step Act, a multiobject conspiracy offense is a “covered offense” if either 21 U.S.C. § 841(b)(1)(A)(iii) or 841(b)(1)(B)(iii) was triggered by the drug-quantity element of an object of that conspiracy offense.Id. at 113.
Following the reasoning in Reed, the court in United States v. Sumler, No. 95-154-2 (BAH), 2021 WL 6134594 (D.D.C. Dec. 28, 2021), concluded that a defendant's conviction for RICO conspiracy is “covered offense.” The court stated:
Thus, the fact that defendant would have been subject to life imprisonment on the RICO conspiracy offense-regardless of any changes implemented by the Fair Sentencing Act and even absent the predicate crack offenses-because of the CCE murder conviction, has no bearing on the determination of whether the conspiracy offense is “covered” within the meaning of Section 404(a).Sumler, 2021 WL 6134594, at *12.
However, in United States v. Allen, the court analyzed “whether Defendant's conviction for a RICO conspiracy, in violation of 18 U.S.C. § 1962(d), constitutes a covered offense under the First Step Act.” No. 3:03CR394 (DJN), 2022 WL 2124495, at 5 (E.D. Va. June 13, 2022), aff'd sub nom. United States v. Allen, No. 22-6746, 2023 WL 3050985. One of the underlying predicates in that case involved the distribution of crack cocaine. The court concluded that the RICO count was not a covered offense. It stated:
[T]he Fair Sentencing Act did not change the statutory penalty range for an aggravated RICO conspiracy. That a covered offense could have formed the predicate for the fourth element does not change the analysis. ....
To the extent that drug offenses form the predicate of a RICO conspiracy, the RICO charge does not “turn on the punishment” for the drug offenses. Rather, the RICO charge turns on the conduct underlying the drug offenses - the commission of a drug offense....The element that includes the racketeering activity does not turn on the type or quantity of drug like the elements of the drug offenses do. Instead, 18 U.S.C. § 1963 controls the punishment, not 21 U.S.C. § 841(b). And, although the Fair Sentencing Act modified the statutory penalties for 21 U.S.C. § 841(b), it left the statutory penalties for 18 U.S.C. § 1963 unaltered.Id. at *8. See also United States v. Randolph, No. 3:01CR304-11, 2022 WL 17170850 (E.D. Va. Nov. 22, 2022).
Of course, Reed is not directly on point, and neither is Sumler or Allen, because a different offense is at issue here. However, the court finds the analysis in the concurring opinion in Reed to be helpful, and it is unclear to the court whether the reasoning in that concurring opinion should be extended by analogy to Count 12. Because the court's ultimate conclusion in this case is that, on balance, the § 3553(a) factors weigh decisively against resentencing the defendant, the court assumes for purposes of the instant motion that Count 12 is a “covered offense.”
The defendant notes that “[n]ever before has the Court had the opportunity to consider whether a life sentence is greater than necessary to serve the purposes of sentencing for Mr. Wallace, taking into account Mr. Wallace's post-sentencing conduct and the person he is today.” Def.'s Mem. in Support (ECF No. 724) at 1. His reasoning as to why resentencing is appropriate in his case is as follows:
Jerkeno Wallace was sentenced to life in prison at age 24 for his role in a crack cocaine conspiracy and his role in the murder of Gil Torres. Today, he is 41 years old and has been incarcerated for approximately 219 months, or more than 18 years. With good time credit, he has served the equivalent of approximately 254 months, or more than 21 years. Over the last two decades in prison, he has completed more than 5,000 hours of vocational training, education, and programming, and has held numerous jobs. Despite a very low IQ and learning disabilities, he achieved his goal of earning a high school equivalency diploma, thanks to his tireless efforts, which included over 2,000 hours of GED coursework and five attempts at the test. He has incurred only two disciplinary violations over his entire time in custody, and none in the last 11 years. He has worked his way down from the notoriously violent maximum-security penitentiary Big Sandy to the medium security FCI Otisville. He has maintained strong bonds with his family and has built a relationship with his adult daughter. Mr. Wallace has changed and matured dramatically since he stood before this Court for sentencing, as evidenced by his record and accomplishments in prison, the letters of support submitted by his family and friends, and his own heartfelt letter to the Court.Id.
With respect to the defendant's efforts in terms of rehabilitation, he has, as reflected in documentation submitted in support of his motion, “completed a significant amount of programming and education over the last 18 years.” Id. at 7. Also, it is impressive that “despite having an extremely limited education and a documented IQ of 60, Jerkeno earned his high school equivalency diploma while incarcerated.” Id. It is noteworthy that the defendant persevered even though it took him five attempts to pass the test. It is also noteworthy that Wallace has been a positive influence on his sister and other inmates and that “he has been employed consistently at the BOP”. Id. at 9. Wallace has not received a disciplinary citation since 2009, and it is also noteworthy that he “earned a transfer to FCI Otisville, a medium-security institution, in 2018.” Id. at 7.
The foregoing, in combination with the defendant's own lengthy statement, which includes his expressions of remorse, and the letters of support submitted by his siblings, aunts and other relatives, and other supporters show that the defendant has evolved since he was sentenced in 2003. The defendant states that “the goal of rehabilitation would be best served by releasing Mr. Wallace to begin his five-year term of supervised release . . . .” Id. at 26.
The defendant also contends that a reduced sentence is appropriate based on “a psychological evaluation indicating that Mr. Wallace had a full-scale IQ of 60.” Id. at 30. At sentencing, the court stated that, because of the need to protect society, “even if there is an argument that this defendant meets standards for a downward departure, I choose not to exercise my discretion to depart downward in this case.” Id. Because the need to protect society was the dominant purpose of sentencing that needed to be served as the court analyzed the relevant factors at that time, the court did not explain then that it also found persuasive the argument made by counsel for the government with respect to the defendant's request for a departure pursuant to Guidelines § 5H1.3.
That argument was as follows:
With respect to the two specific grounds that Mr. Cramer argued on behalf of Mr. Wallace, again beginning with 5Hl.3, the record is clear that Mr. Wallace operates under certain limitations. The record, as developed during trial, however, shows that at least during the period of February and March of 2002, Mr. Wallace was able to engage in his narcotics trafficking activity with absolutely no disabilities. The Court saw videotape of Mr. Wallace breaking off portions of crack cocaine, receiving money, I think there were even instances -- and the Court will recall better than I -him making change for some of his customers. Mr. Wallace was as able to function on the streets, he was able to function in the conspiracy that he joined and perhaps even formed with Mr. Thomas, and was certainly able to appreciate his conduct. Furthermore on that score, although Mr. Wallace may operate at a somewhat limited cognitive level, there is no evidence in this record to explain how it is that that limitation somehow mitigates his decision to pursue Gil Torres and the two
other robbers and execute Gil Torres on Farmington Avenue at 3 o'clock in the afternoon on a crowded street with other people being endangered by his actions.
12/12/03 Tr. (ECF No. 550) at 85 l.12 to 86 l.10.
The defendant notes that at sentencing “the Court was most focused on the goals of public safety and general deterrence.” Def.'s Mem. in Support at 27. He maintains that given the person that he is today, there is no need for the court to place significant weight on the need to protect the public from further crimes committed by him. The government disagrees. The government acknowledges that “Wallace's rehabilitation efforts and the attitudes expressed in his letter are admirable, as is the support from his family and friends.” Gov't's Opposition at 15. It maintains, however, that
[w]eighing against these data points . . . is Wallace's conduct outside of prison....Wallace's history shows him engaged in repeated criminal activity from his early teens into adulthood-even after multiple run-ins with law enforcement-until he was incarcerated at age 23 for a major crack conspiracy and murder. His pattern of behavior outside of prison weighs strongly against the notion that he poses no threat to the public, as he contends.Id. at 15-16.
The court need not resolve this question. It is sufficient to say that had the defendant been the person he is today when the court imposed sentence in 2003, it would not have placed weight on the need to protect society to the extent it did. Rather, the court would have placed more significant weight on the need for the sentence imposed to reflect the seriousness of the offense, which as discussed below, it does now. The reason the court did not do so at the time of sentencing was because, at that time, the court concluded that the dominant need was to protect society.
The defendant notes that his childhood experiences and his age at the time of the offenses, which was 22 to 23 years old, provides a context for his crimes. The court has considered that context.
While the defendant's efforts in terms of rehabilitation, his support network of family and friends, and the fact that the goal of rehabilitation would be best served by reducing his sentence do all weigh in favor of his motion, the court must consider all of the § 3553(a) factors. Here, the most significant § 3553(a) factor and the one that, in the court's view, should be given the greatest weight is the need for the sentence imposed to reflect the seriousness of the offense. As the government emphasizes, quite properly, “Wallace's gravest offense . . . was first degree murder. Wallace and Thomas executed Gil Torres via drive-by shooting near a school as class was letting out for the day.” Gov't's Opposition at 11. As the government further emphasizes, “Wallace committed an extremely serious violent crime. He also continued a brazen and prolific crack trafficking operation for nearly a year after that violent crime.” Id. at 15. The court agrees with the government that it is appropriate “that the most serious offenses receive the most serious punishment.” Id. at 14.
While the defendant argues that “there is a growing consensus that rehabilitation should principally replace incarceration as a tool for addressing crime,” the sources cited in the footnote refer specifically to “non-violent justice-involved individuals” and “for nonviolent offenses.” Def.'s Mem. in Support at 29 and n.14. As the government notes, the defendant “cites no declining public support for severe punishment of premeditated murder.” Gov't's Opposition at 17.
The defendant maintains that the sentence of life imprisonment is too punitive. It is sobering to contemplate that “[a]bsent relief, he will die in prison,” and to contemplate the impact on Wallace's family members of his life sentence, as reflected in their letters. Def.'s Mem. in Support at 40. But it is even more sobering to take note of the consequences of the defendant's offense conduct for, among others, Gil Torres, his widow (as reflected in her victim impact statement, see (ECF No. 723-4)), and his children and other family members. But the key question here is not whether we should feel compassion for Wallace (and in the court's view, we should feel compassion for him too), but rather whether a lesser sentence would be sufficient to reflect the seriousness of his offense conduct, namely, first degree murder in furtherance of a major drug offense - it was not simply committing a major drug offense. Consequently, the court does not agree that the sentence in this particular case is too punitive. It is proportionate to the crime of First Degree Murder and, under § 3553(a), most appropriate based on the defendant's offense conduct. In the court's view, under the circumstances here, a lesser sentence would not be sufficient.
Accordingly, the court is denying the defendant's motion for resentencing.
It is so ordered.