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United States v. Simmons

United States District Court, M.D. Pennsylvania

September 5, 2017

UNITED STATES OF AMERICA,
v.
KENNETH O. SIMMONS, JR., Defendant

          MEMORANDUM

          William W. Caldwell, United States District Judge.

         I. Introduction

         Before the court is Defendant Kenneth O. Simmons, Jr.'s supplemental motion (Doc. 343) to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 of the United States Sentencing Guidelines Manual (“USSG” or “Guidelines”). After careful consideration, we will grant Simmons' motion.

         II. Background

         In February of 2000, Simmons and co-defendants James Loner, Jr. (“Loner”) and Thomas Clayborn (“Clayborn”) were charged in a superseding indictment with drug distribution, conspiracy, and weapons offenses. (Docs. 1, 5). After a jury trial, Clayborn was acquitted, but Simmons and Loner were found guilty of crack cocaine distribution, conspiracy, and 18 U.S.C. § 924(c) and § 922(g) charges. (Docs. 120, 121, 124).

         Simmons and Loner were sentenced on the same day. (Docs. 157, 162). The Presentence Investigation Report (“PSR”) for both defendants contained an identical offense conduct section. (Compare Loner PSR ¶¶ 9-20 with Simmons PSR ¶¶ 9-20). Each defendant's base offense level was determined to be 38 based on USSG § 2D1.1 “for offenses involving 1.5 kilograms or more of cocaine base [i.e., crack cocaine].” (Loner PSR ¶ 26; Simmons PSR ¶ 26).[1] Loner was found to be a career offender under USSG § 4B1.1. (Loner PSR ¶ 34). Simmons was not. (Simmons PSR ¶ 34). Because Loner's offense level under the career offender guideline was lower than that imposed under § 2D1.1, however, § 2D1.1 was found to control his base offense level determination. (Loner PSR ¶ 34). Loner had a criminal history category of 6, (Loner PSR ¶ 46), while Simmons' criminal history category was 5, (Simmons PSR ¶ 43).

         Simmons and Loner received identical sentences: 360 months' imprisonment plus an additional 60-month mandatory consecutive term of imprisonment for the § 924(c) charge, resulting in an aggregate of 420 months for each defendant. (Docs. 157, 162). These sentences were at the bottom of the range provided by the Guidelines, which were mandatory[2] at that time. Simmons' § 924(c) charge was vacated in 2003, leaving him with a sentence of 360 months' imprisonment. (Doc. 257).

         In November 2007, the United States Sentencing Commission passed Amendment 706, which reduced the Guidelines' base offense levels for crack cocaine offenses by two levels. See USSG app. C, amend. 706 (Nov. 1, 2007). The Sentencing Commission made Amendment 706 retroactive. USSG app. C, amend. 713 (Supp. May 1, 2008).

         Both Loner and Simmons moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706. (Docs. 275, 293, 314). The Government did not oppose Loner's motion, and the portion of his sentence that did not stem from the § 924(c) count was reduced from 360 months to 324 months. (Doc. 320).

         The Government initially concurred in Simmons' Amendment 706 motion, (Doc. 279), but subsequently opposed a sentence reduction for him, (Doc. 280). In its response in opposition, the Government contended that because Simmons “was found at his sentencing hearing to be responsible for in excess of 40 kilograms of crack cocaine, ” his base offense level of 38 would remain unchanged by Amendment 706, [3] thereby making him ineligible for a sentence reduction. (Doc. 280 at 2).

         The Federal Public Defender, who had been appointed under a standing order to represent Simmons on his Amendment 706 motion, summarily agreed with the Government's assessment and offered no briefing or argument in opposition. (Doc. 281 at 2). On April 1, 2008, the Public Defender moved to withdraw from Simmons' case for the reasons provided in the Government's response in opposition to Simmons' Amendment 706 motion. (Doc. 281).

         On April 25, 2008, this court entered an abbreviated order with background denying Simmons' Amendment 706 motion. (Doc. 284). In that opinion, relying primarily on the parties' agreed-upon position regarding Simmons' drug weight, we determined that because Simmons' sentence “was based in part on [our] determination that Simmons was responsible for more than 40 kilograms of crack cocaine, ” his base offense level would remain unchanged under Amendment 706. (Doc. 284 at 2). Accordingly, we held that a sentence reduction for Simmons was not authorized due to the constraints of USSG § 1B1.10(a)(2)(B), as Amendment 706 did “not have the effect of lowering the defendant's applicable guideline range.” (Doc. 284 at 3 (quoting USSG § 1B1.10(a)(2)(B))).

         In 2014, the Sentencing Commission passed Amendment 782, which reduced the Guidelines' base offense levels for many drug offenses-including crack cocaine-by two levels. See USSG app. C, amend. 782 (Supp. Nov. 1, 2014). The Sentencing Commission made Amendment 782 retroactive as well. USSG app. C, amend. 788 (Supp. Nov. 1, 2014). Under this latest revision of the Guidelines' drug weight table, in order to implicate the highest base offense level-38-the required weight of crack cocaine is at least 25.2 kilograms. USSG § 2D1.1(c)(1) (2014).[4]

         Again, both Loner and Simmons filed motions to reduce their sentences under 18 U.S.C. § 3582(c)(2), citing Amendment 782. (Docs. 324, 326). Loner's motion again went unopposed by the Government, and his sentence on the non-§ 924(c) counts was reduced from 324 months to 262 months. (Doc. 329). Loner's amended Guideline range-and probably his revised sentence on the non-§ 924(c) counts-would have been lower but ...


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