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recognizing the severity of the defendant's conduct, but also emphasizing that a majority of his sentence was required by the § 924(c) stacking provisions that were eliminated by the First Step Act
Summary of this case from United States v. OgunOpinion
CRIMINAL NO. 4:07cr49
2021-08-27
UNITED STATES of America, v. Billy R. MCCULLERS, Defendant.
Brian James Samuels, Assistant United States Attorneys, Fountain Plaza Three, Suite 300, Newport News, VA 23606, for United States. Billy R. McCullers, Pro Se.
Brian James Samuels, Assistant United States Attorneys, Fountain Plaza Three, Suite 300, Newport News, VA 23606, for United States.
Billy R. McCullers, Pro Se.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendant's "Motion for Reduction of Sentence Pursuant to the First Step Act of 2018 and the Retroactive Fair Sentencing Act Amendment" ("Motion"), filed pro se on February 8, 2019. ECF No. 359.
I. Procedural History
Following an eight-day jury trial, the Defendant was found guilty on Counts One through Fifteen of the Third Superseding Indictment. ECF No. 159. Counts One, Two, Three, Five, Six, Eight, Nine, Eleven, Twelve, and Thirteen ("drug trafficking counts") charged the Defendant with various drug conspiracy, distribution, and manufacturing crimes, all in violation of 21 U.S.C. §§ 841 and/or 846. ECF No. 129. Counts Four, Seven, and Ten ("firearms counts") charged the Defendant with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1). Id. Counts Fourteen and Fifteen ("witness tampering counts") charged the Defendant with Tampering with a Witness, in violation of 18 U.S.C. § 1512(b)(2)(A), (b)(2)(D). Id. On April 29, 2009, the court sentenced the Defendant to a term of imprisonment of one thousand twenty (1,020) months. ECF No. 172. In an Order dated December 18, 2014, the court reduced the Defendant's sentences on Counts One, Two, Three, Five, Six, Eight, Nine, Eleven, Twelve, and Thirteen to two hundred thirty-five (235) months on each count, to be served concurrently. ECF No. 306; see 18 U.S.C. § 3582(c)(2). As a result of this reduction, the Defendant's total sentence was reduced to eight hundred ninety-five (895) months.
This was the Defendant's second trial after his first ended in a hung jury on all counts. ECF No. 122.
This sentence consisted of three hundred sixty (360) months on each of Counts One, Three, Eight, Twelve, and Thirteen; two hundred forty (240) months on each of Counts Two, Five, Six, Nine, and Eleven; and one hundred twenty (120) months on each of Counts Fourteen and Fifteen, all to run concurrently; plus sixty (60) months on Count Four and three hundred (300) months on each of Counts Seven and Ten, to run consecutively with each other and the sentences imposed on all other counts. ECF No. 172.
The Defendant filed the instant Motion on February 8, 2019. ECF No. 359. The court denied the Motion in an Order dated May 16, 2019. ECF Nos. 374, 375. The Defendant appealed, and the Fourth Circuit reversed and remanded "for consideration of [the Defendant's] motion on the merits." ECF No. 380. Thereafter, the court denied the Motion on the merits on April 2, 2020, ECF Nos. 383, 383-1, 384, and the Defendant appealed again, ECF No. 385. On March 31, 2021, the Fourth Circuit remanded for further consideration in light of its recent decision in United States v. McDonald, 986 F.3d 402 (4th Cir. 2021). ECF No. 390.
McDonald instructs district courts considering motions under § 404 of the First Step Act to "explicitly weigh" any evidence that a defendant submits regarding his post-sentencing rehabilitation. 986 F.3d at 412.
On April 12, 2021, the Defendant filed the "Motion to Supplement the Record," requesting that the court consider certain exhibits in ruling on the First Step Act Motion. ECF No. 392. The court granted the Motion to Supplement the Record and offered the United States an opportunity to respond to the new materials. ECF No. 393. The United State did not file a brief.
On June 21, 2021, the Defendant submitted a "Reply in Absence of Government Response." ECF No. 398. In that brief, the Defendant argued for the first time that the court should reduce his sentences on the firearms counts under § 403 and § 404 of the First Step Act. Id. at 5-7. According to the Defendant, § 403 of the First Step Act limited the practice of "sentence stacking" for multiple convictions under 18 U.S.C. § 924(c). Id. Therefore, he requests that his consecutive twenty-five (25) year mandatory sentences on Counts Seven and Ten be reduced to consecutive five (5) year sentences. Id.
In an Order dated July 2, 2021, the court determined that it could not reduce the Defendant's sentences on Counts Seven and Ten pursuant to § 403 and § 404 of the First Step Act. ECF No. 399. The court did, however, construe the Defendant's argument as a request for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i) in light of the Fourth Circuit's decision in United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). Id. The court directed the United States to file a response to the Defendant's new argument. Id. The United States filed a response in opposition on August 5, 2021. ECF No. 403. The Defendant filed a reply on August 24, 2021. ECF No. 407.
II. Motion for Compassionate Release Under § 3582(c)(1)(A)(i)
The court first considers the Defendant's request for reductions in sentence on Counts Seven and Ten in light of McCoy. A. Exhaustion of Administrative Remedies
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the court may modify a term of imprisonment, if it finds that "extraordinary and compelling reasons warrant such a reduction." Before the court may consider such a motion, however, the defendant must have "fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf," or there must have been a "lapse of 30 days from the receipt of such a request by the warden of the defendant's facility." Id. § 3582(c)(1)(A).
In the court's Order dated July 2, 2021, the court stated that:
compliance with th[e] exhaustion requirement is futile where the defendant wishes to raise an argument under McCoy, given the Bureau of Prisons’ ("BOP's") ‘institutionalized refusal to consider any nonmedical justification for compassionate release,’ including arguments under McCoy. Requiring the Defendant to raise his McCoy argument to the BOP prior to pursuing it in this court would serve no purpose other than to delay the proceedings because the BOP would not consider the argument on the merits.
ECF No. 399 at 5 n.4 (quoting United States v. Tyndall, No. 2:10cr200, slip op. at 3 (June 9, 2021)). Accordingly, the court will proceed to the merits of the Defendant's request for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i).
B. Merits
The court now considers whether the Defendant has shown "extraordinary and compelling reasons" that justify a reduction in his sentence. Any reduction under § 3582(c)(1)(A) must be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A) ; see United States v. McCoy, 981 F.3d 271, 276 (4th Cir. 2020). In McCoy, the Fourth Circuit held that "there currently exists no ‘applicable policy statement’ " because the Commission has not issued a policy statement since the passage of the First Step Act. 981 F.3d at 281. Therefore, until the Sentencing Commission issues an updated policy statement, "district courts are ‘empowered to consider any extraordinary and compelling reason for release that a defendant might raise.’ " Id. at 284 (alteration omitted) (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020) ). In particular, the Fourth Circuit held that "courts may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself now views as dramatically longer than necessary or fair." Id. at 285-86.
Although the policy statement in U.S.S.G. § 1B1.13 is no longer binding on this court after the Fourth Circuit's decision in McCoy, the court finds certain of its provisions useful in addressing the instant Motion. For example, the court will still consider "the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable," U.S.S.G. § 1B1.13, and whether "[t]he defendant is ... a danger to the safety of any other person or to the community," id. § 1B1.13(2), because these considerations remain highly relevant to whether a reduction in sentence is warranted in this case.
1. Extraordinary and Compelling Reasons
The Defendant requests that the court reduce his sentences on Counts Seven and Ten in light of the First Step Act's elimination of "sentence stacking" for multiple § 924(c) offenses in the same indictment. ECF No. 398. The court begins its consideration of the Defendant's argument with a discussion of the Fourth Circuit's McCoy decision. a. General Effect of McCoy
In McCoy, the defendants were each convicted of and sentenced on multiple offenses under 18 U.S.C. § 924(c) prior to the passage of the First Step Act. 981 F.3d at 277-79. At the time of their sentencing hearings, § 924(c)(1)(C) required a so-called "stacked" sentence for a "second or successive conviction" under § 924(c) -- that is, an enhanced mandatory minimum sentence of twenty-five (25) years for a second or successive § 924(c) conviction. See id. Pursuant to then-applicable law, "a conviction was treated as ‘second or successive,’ triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case." Id. at 275. The First Step Act "ended this practice ... by clarifying that the 25-year mandatory minimum applies only when a prior § 924(c) conviction arises from a separate case and already has become final." Id. (emphasis added).
Although the First Step Act did not make this reform retroactive to cases in which defendants had already been sentenced, the defendants in McCoy filed motions for compassionate release, requesting that the court take into consideration the fact that their sentences would be much shorter, if they were sentenced under the First Step Act. Id. at 274. The district courts granted the motions. Id. The United States appealed, and the Fourth Circuit affirmed, holding that district courts considering motions for compassionate release may properly consider "the length of the defendant[’s] sentence[ ] and the fact that th[e] sentence[ ] would be dramatically shorter today." Id. at 285.
b. Specific Effect of McCoy on the Defendant
Turning to this case, the Defendant was convicted of violating 18 U.S.C. § 924(c) in Counts Four, Seven, and Ten of the Third Superseding Indictment. Because the Defendant was convicted and sentenced prior to the passage of the First Step Act, the court was required to impose a sentence of at least five (5) years consecutive on Count Four and at least twenty-five (25) years consecutive on each of Counts Seven and Ten. However, the Defendant would face sentences of only five (5) years consecutive on Counts Seven and Ten, if he were sentenced today for the same crimes. Hence, the Defendant was sentenced to a total term of imprisonment that is forty (40) years longer than "the sentence[ ] Congress now believes to be an appropriate penalty for the [Defendant's] conduct." McCoy, 981 F.3d at 285. The Defendant's sentences on Counts Seven and Ten are also each twenty (20) years longer than the Guideline sentences that would apply to those counts, if he were sentenced today. On this basis, the court finds that the Defendant has shown an extraordinary and compelling reason for a reduction in his sentences on Counts Seven and Ten.
Even after the passage of the First Step Act, the Defendant's statutory minimum sentence on Count Four would still be five (5) years.
The applicable Guideline sentence for Counts Seven and Ten would change as a result of the First Step Act's reduced statutory minimum sentence on those counts because "the guideline sentence [for a violation of § 924(c) ] is the minimum term of imprisonment required by statute." U.S.S.G. § 2K2.4(b).
2. Section 3553(a) Factors
This conclusion does not automatically entitle the Defendant to a reduction in his sentence, however, because "a district court may not grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) without ‘considering the factors set forth in section 3553(a) to the extent that they are applicable.’ " United States v. Kibble, 992 F.3d 326, 331 (4th Cir. 2021) (quoting 18 U.S.C. § 3582(c)(1)(A) ).
The court begins its consideration of the § 3553(a) factors by considering "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). As explained above, the Defendant is currently serving a sentence that is forty (40) years longer than the sentence that an identical defendant would receive today. See supra Section II.B.1. The Defendant's sentence is also forty (40) years longer than the applicable Guideline sentencing range following the passage of the First Step Act. The facts of this case simply do not justify a sentence that is more than twice as long as the sentence that Congress now deems appropriate for the Defendant's criminal conduct. See McCoy, 981 F.3d at 287. The Defendant's argument as to this sentencing factor is particularly compelling because, like some of the defendants in McCoy, the Defendant has three (3) convictions under § 924(c), which means that the court was required to impose a total sentence of at least fifty-five (55) years on those counts, to run consecutively with all other sentences imposed. 981 F.3d at 278.
See supra note 5 & accompanying text.
Furthermore, a reduction in sentence on Counts Seven and Ten would bring the Defendant's sentence in line with the sentences that his coconspirators received:
Defendant Offense Criminal sentence Level7 History Category Billy McCullers 41 II 895 months Tracy Antonio Speller 29 IV 120 months James Edward Frink 35 IV 312 months Ricky Lamont Frink 37 V 444 months Dustin Deon Walker 35 IV 300 months Donovan Bradley 33 V 600 months8 Jamarr Deon Williams 29 I 180 months Devon Alexander 34 VI 280 months Antoine Haggar 27 III 180 months
[Editor's Note: The preceding image contains the reference for footnotes , ].
The offense levels were determined at the times of the defendants’ respective sentencing hearings and do not account for any reductions in offense level in light of retroactive Guideline amendments.
Bradley's sentence was subsequently reduced, see United States v. Bradley, 4:04cr76, ECF Nos. 62, 87, and he was released from prison and began supervision on December 4, 2015, see id., ECF No. 121. Thus, Bradley served approximately eleven (11) years of his original fifty (50) year sentence.
Except where otherwise indicated, the sentences in the table above are the sentences that were originally imposed on the defendants. The Defendant in the instant case is plainly an outlier among his coconspirators who were charged and sentenced in this court. Although the court finds that the Defendant is among the most culpable coconspirators -- as reflected by the facts in the PSR and that he received the highest offense level -- the disparity between his sentence and those of the coconspirators is not warranted in light of McCoy and the First Step Act's elimination of sentence stacking for § 924(c) convictions. The court concludes that reducing the Defendant's sentences on Counts Seven and Ten to eliminate the effect of his stacked sentences would more accurately reflect the Defendant's culpability relative to his coconspirators.
It bears mentioning, however, that several of the Defendant's coconspirators later received substantial reductions in sentence. See, e.g., supra note 8; United States v. Walker, 4:07cr99, ECF Nos. 44, 51 (reducing the defendant's total sentence from three hundred (300) months to one hundred twenty-six (126) months).
Eliminating the Defendant's stacked sentences results in a total sentence of four hundred fifteen (415) months: two hundred thirty-five (235) months on the drug trafficking counts, plus sixty (60) months each on Counts Four, Seven, and Ten, all to be served consecutively with each other and the sentences on the drug trafficking counts.
The other § 3553(a) factors that the court must consider also weigh in favor of a reduced sentence of four hundred fifteen (415) months. First, the court must stress that the Defendant's offense conduct in this case was extremely serious, both in the abstract and relative to his coconspirators. The Defendant was involved in a cocaine and crack cocaine conspiracy from approximately 2000 until November of 2007. PSR ¶ 21. At sentencing, he was attributed with 6.8345 kilograms of cocaine and 2.40365 kilograms of crack cocaine. Id. ¶ 79. The Defendant was a manager or supervisor of the conspiracy, and he possessed a firearm in connection with his drug trafficking activities. Id. ¶¶ 77-78. The Defendant also received a two-point offense level enhancement for obstruction of justice because he threatened an unindicted coconspirator who was cooperating with law enforcement. Id. ¶ 80; see U.S.S.G. § 3C1.1. Concerningly, the PSR states that the Defendant "distributed cocaine and cocaine base to juveniles." PSR ¶ 78.
The Defendant's offense conduct, as summarized above, requires a very substantial prison sentence to provide just punishment, to deter others from engaging in similar conduct, and to protect the public from further crimes of the Defendant. See 18 U.S.C. § 3553(a)(2)(B)-(C). Additionally, the Defendant's involvement in a criminal conspiracy for a long period of time reflects a lack of respect for the law. Id. § 3553(a)(2)(A). Still, the court is cognizant that § 3582(c)(1)(A)(i) "permits a district court to reduce a sentence in ‘any case’ -- not just cases where a sentence has been substantially served; not just in cases involving low-level or non-violent offenses." Kibble, 992 F.3d at 334 (Gregory, C.J., concurring). In reducing the Defendant's sentence, the court by no means minimizes or denies the seriousness of the Defendant's crimes. But the Defendant's current sentence of eight hundred ninety-five (895) months -- a large majority of which was mandated by the sentence stacking provisions in § 924(c) that Congress eliminated in the First Step Act -- is simply "disproportionate to the severity of his offenses" in light of McCoy and the First Step Act. United States v. Tyndall, 2:10cr200, slip op. at 11-12 (Aug. 10, 2021) (Smith, J.); see also United States v. Decator, 452 F. Supp. 3d 320, 326 n.9 (D. Md. 2020) (stating that "the national average sentence [in federal court] for murder was 291 months, and the Fourth Circuit average was 327 months").
Furthermore, the Defendant has served approximately one hundred seventy-two (172) months of his sentence as of the date of this Memorandum Order. However, in light of the Defendant's offense conduct over a long period of time, the court fully agrees with the United States when it argues that "there exists a further need to protect the public from danger." ECF No. 403 at 15. The Defendant will be specifically deterred from committing further crimes for a lengthy period of time while he serves the remainder of his four hundred fifteen (415) month sentence. The court also finds that a sentence of four hundred fifteen (415) months is sufficient but not greater than necessary to provide general deterrence to those who would commit crimes similar to the Defendant's. See 18 U.S.C. § 3553(a)(2)(B).
The Defendant has been detained since May 1, 2007. PSR at 1.
Finally, the court notes that the Defendant has submitted evidence and argument regarding his rehabilitation while incarcerated. ECF Nos. 359-1, 362, 372-1, 392-1, 392-2, 392-3, 392-4, 400, 400-1, 407. The Defendant's evidence shows, among other things, that (1) he has completed his GED; (2) he has taken many educational courses and programs while incarcerated; (3) the BOP at this juncture considers him to be a "low" risk inmate; and (4) that he has worked while incarcerated and developed skills that he could use to find employment, when he is released. Id. Additionally, the Defendant submitted several character letters and letters of recommendation, as well as a letter he wrote to the court. ECF Nos. 392-3, 392-4. The Defendant's rehabilitative efforts to this point certainly "demonstrate that he has matured since his involvement in these crimes." McCoy v. United States, No. 2:03cr197, 2020 WL 2738225, at *3 (E.D. Va. May 26, 2020) (Jackson, J.). Accordingly, the Defendant's efforts at rehabilitation weigh in favor of a reduction in sentence to four hundred fifteen (415) months. However, the court finds that the Defendant's rehabilitation does not warrant a more substantial reduction in sentence, when weighed against the seriousness of the offense and the other § 3553(a) factors for the reasons stated in this Memorandum Order.
The Defendant's efforts at continuing his education and developing employable skills are notable because, as the Defendant points out, absent a reduction in sentence, he may well not be able fully to utilize these assets outside of prison. Simply put, the Defendant's decision to better himself while incarcerated is commendable in light of his very long prison sentence.
For the foregoing reasons, and having considered the factors under § 3553(a), McCoy and its effect on the Defendant's sentence, and the Defendant's history and characteristics, offense conduct, and rehabilitation, the court will REDUCE the Defendant's sentence on Count Seven from three hundred (300) months to sixty (60) months, and REDUCE the Defendant's sentence on Count Ten from three hundred (300) months to sixty (60) months. As a result of these reductions in sentence, the Defendant's sentence will be reduced from eight hundred ninety-five (895) months to four hundred fifteen (415) months.
The Defendant's four hundred fifteen (415) month sentence consists of two hundred thirty-five (235) months on Counts One, Two, Three, Five, Six, Eight, Nine, Eleven, Twelve, and Thirteen, to run concurrently with one hundred twenty (120) month sentences on Counts Fourteen and Fifteen, plus sixty (60) months consecutive on each of Counts Four, Seven, and Ten, all to run consecutively with each other and with the sentences imposed on all other counts.
III. First Step Act Motion
The court now considers the Defendant's request for a reduction in sentence on the drug trafficking counts under § 404 of the First Step Act of 2018. The drug trafficking counts are Counts One, Two, Three, Five, Six, Eight, Nine, Eleven, Twelve, and Thirteen.
A. Eligibility
A criminal defendant who has been convicted of a "covered offense" is eligible for a sentence reduction under § 404 of the First Step Act. Pub. L. No. 115-391, § 404(a), 132 Stat. 5220. 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 ...." Id.; see Terry v. United States, ––– U.S. ––––, 141 S.Ct. 1858, 1862-64, 210 L.Ed.2d 108 (2021) ("[W]e hold that § 2(a) of the Fair Sentencing Act modified the statutory penalties only for [ § 841(b)(1)(A) and (b)(1)(B) ] crack offense[.]"). The Defendant was convicted of covered offenses in Counts One, Two, Three, Five, Twelve, and Thirteen of the Third Superseding Indictment. The Defendant is therefore eligible for a reduction in sentence.
Counts Six, Eight, Nine, and Eleven are not covered offenses because those offenses involved powder cocaine and not crack cocaine.
"Upon determining that a sentence qualifies for review on the merits, the court is then given discretion to impose a reduced sentence as if the Fair Sentencing Act were in effect at the time the covered offense was committed." United States v. Lancaster, 997 F.3d 171, 175 (4th Cir. 2021). "To determine the sentence that the court would have imposed under the Fair Sentencing Act, the court must engage in a brief analysis that involves the recalculation of the Sentencing Guidelines in light of ‘intervening case law’ and a brief reconsideration of the factors set forth in 18 U.S.C. § 3553(a)." Id. (citations omitted); see United States v. Chambers, 956 F.3d 667, 671-75 (4th Cir. 2020).
B. Statutory and Guideline Sentences
The First Step Act and the Fair Sentencing Act reduced the statutory penalties for the Defendant's covered offenses as follows: Count One -- no change; Count Two -- reduction from five (5) to forty (40) years, to zero (0) to twenty (20) years; Count Three -- reduction from ten (10) years to life, to five (5) to forty (40) years; Count Five -- reduction from five (5) to forty (40) years, to zero (0) to twenty (20) years; Count Twelve -- reduction from ten (10) years to life, to five (5) to forty (40) years; and Count Thirteen -- reduction from ten (10) years to life, to five (5) to forty (40) years. ECF No. 365.
The Fair Sentencing Act and the First Step Act have no effect on the statutory penalties for the Defendant's non-covered drug trafficking offenses in Counts Six, Eight, Nine, and Eleven. See supra note 14. However, § 404(b) permits the court to reduce the sentences on these counts because the Defendant has at least one covered offense. See, e.g., United States v. Hudson, 967 F.3d 605, 611 (7th Cir. 2020).
As to the drug trafficking counts, the Sentencing Guidelines -- including retroactive Guideline Amendments that were not in place at the time of the Defendant's sentence -- establish a Total Offense Level of 37 and a Criminal History Category of II. Id. This calculation corresponds to a Guidelines range of imprisonment of two hundred thirty-five (235) to two hundred ninety-three (293) months. Id.
As to Counts Two and Five, this range would be restricted to a maximum of two hundred forty (240) months because of the applicable statutory maximum sentences, as well as to the non-covered offenses in Counts Six, Nine, and Eleven.
The Defendant contends that his Total Offense Level should be lower. ECF No. 372 at 12-13. The applicable drug quantity for calculating the Base Offense Level, he says, should be determined by reference to the amount of drugs described in the Third Superseding Indictment, rather than by reference to the drug weight calculation in the PSR. Id. The court does not agree. Section 404(b) permits the court to "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." Pub. L. No. 115-391, § 404(b), 132 Stat. 5194. "[I]f sections 2 and 3 of the Fair Sentencing Act of 2010 [had been] in effect at the time" of the Defendant's offenses, id., the court would have certainly relied on the facts in the PSR to determine the attributable drug weight and thereby the advisory Guideline sentencing range. To do otherwise conflates advisory Guidelines calculations with statutory mandates.
District courts must use the weights charged in an indictment to determine a defendant's eligibility for relief under § 404 of the First Step Act. Cf. Terry, 141 S.Ct. at 1862-64 (holding that a defendant's eligibility may be determined solely from the statutory penalty provision under which the defendant was charged and convicted). And courts must use the weight charged in the indictment to determine the new statutory minimum and maximum sentence because to do otherwise would violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). But using the actual drug weight calculation determined by the court in the PSR at sentencing to calculate the Guideline sentencing range does not violate Apprendi or Alleyne because the Guidelines are advisory. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; infra note 18.
In Lancaster, the defendant moved for relief under § 404, and argued that the court should, under Fourth Circuit case law issued subsequent to the Defendant's sentencing, recalculate the Guidelines sentencing range without the career offender enhancement. 997 F.3d at 173. The court declined to recalculate the Guideline sentence, and the Fourth Circuit reversed, explaining that the district court erred in failing to recalculate the Guideline range in light of "intervening case law." Id. at 176. The Fourth Circuit noted that, at the defendant's original sentencing, the court "made no findings on drug quantity" because the defendant's Guideline sentence was calculated, at the time, under the career offender provision. Id. The Fourth Circuit continued:
With no basis to apply the career-offender enhancement [in light of intervening case law] or to apply relevant drug quantities -- as those were never calculated -- the district court was left, when considering [the defendant's] First Step Act motion, with gaps that needed to be filled to calculate an appropriate Guidelines range.
Id. (emphases added); see Chambers, 956 F.3d at 672 (stating that the court "received a supplementary PSR" to help it "recalculate the Guidelines range" when deciding a motion under § 404 of the First Step Act).
The Defendant's argument that the court should use the drug weights in the Third Superseding Indictment to calculate his current Guideline range is plainly inconsistent with the analysis in Lancaster. If the district court in Lancaster were supposed to use the indictment drug weights to calculate the Guideline range, then the lack of drug weight findings at sentencing would not have affected the court's ability to calculate a current Guideline range for the defendant's First Step Act motion, and there would have been no "gaps that needed to be filled." 997 F.3d at 176. Accordingly, the court rejects the Defendant's argument as to his offense level. Therefore, the Defendant's Total Offense Level is 37, his Criminal History Category is II, and the Guideline sentencing range is two hundred thirty-five (235) to two hundred ninety-three (293) months, subject to the statutory maximum sentences on certain counts.
Although the Defendant objected to "each and every factual conclusion [in the PSR] and further object[ed] to the guidelines calculations contained therein," ECF No. 167, the court overruled the objections and "adopted the facts in the PSR," including the drug weight, which remains the final determination for the Guideline sentencing range. ECF No. 210 at 7.
See supra note 16.
C. Merits
Having determined that the Defendant is eligible for a reduction in sentence under § 404 of the First Step Act, and having determined the new statutory penalties and the recalculated Guideline sentencing range, the court now considers whether further to reduce the Defendant's four hundred fifteen (415) month sentence, taking into consideration the § 3553(a) factors, the new statutory maximum sentences, the Guidelines range, and "all the relevant evidence," including the Defendant's evidence of post-sentencing rehabilitation. McDonald, 986 F.3d at 411. Ultimately, the question the court must answer is "what sentence it would have imposed under the Fair Sentencing Act in light of intervening circumstances." Lancaster, 997 F.3d at 175.
The court has reviewed and considered all of the Defendant's many filings and attachments pertaining to the instant Motion. See ECF Nos. 359, 359-1, 362, 362-1, 372, 372-1, 392, 392-1, 392-2, 392-3, 392-4, 396, 396-1, 398, 400, 400-1, 407.
The court will not exercise its discretion to lower the Defendant's sentence under § 404. First, the Defendant's sentences on the drug trafficking counts are all below the new statutory maximum penalties and are at the bottom of the applicable Guideline sentencing range. See 18 U.S.C. § 3553(a)(3), (4). Second, the court has already weighed the § 3553(a) factors, the Defendant's efforts at post-sentencing rehabilitation, and the facts of this case, and concluded that a sentence of four hundred fifteen (415) months is warranted. For the reasons stated supra Section II.B.2, the court finds that a lower sentence would fail to reflect the seriousness of the offense, to provide just punishment, to promote respect for the law, to adequately deter criminal conduct, and to protect the public. 18 U.S.C. § 3553(a)(2). To reduce the Defendant's sentence would also create unwarranted sentence disparities between the Defendant and his coconspirators. See supra Section II.B.2; 18 U.S.C. § 3553(a)(6). Accordingly, the court does not reduce the Defendant's sentence under § 404 of the First Step Act.
For the reasons in this Memorandum Order, the court does not find that a below-Guideline sentence would be appropriate or consistent with the § 3553(a) factors. See supra Section II.B.2.
IV. Conclusion
The Defendant's Motion, ECF No. 359, is GRANTED IN PART and DENIED IN PART , such that the court REDUCES the Defendant's sentence on Count Seven to sixty (60) months, and the court REDUCES the Defendant's sentence on Count Ten to sixty (60) months. The reduced sentences on Counts Seven and Ten run consecutively to each other and to the sentences imposed on all other counts, such that the Defendant's total sentence is REDUCED from eight hundred ninety-five (895) months to four hundred fifteen (415) months. Other than this sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), the judgment entered on April 30, 2009, and modified on December 18, 2014, remains in full force and effect.