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United States v. Cruz

United States District Court, M.D. Pennsylvania

July 12, 2019

UNITED STATES OF AMERICA
v.
DERRICK CRUZ, Defendant

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         On May 16, 2019, defendant Derrick Cruz filed, through counsel, a motion to reduce his 135-month sentence pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (“FSA”).[1] In particular, Cruz filed a motion for a resentencing hearing pursuant to § 404 of the FSA, with a copy of his BOP Individualized Reentry Plan attached as an exhibit. (Docs. 331 & 331-3). He simultaneously filed a brief in support. (Doc. 332). The government filed its response on May 28, 2019. (Doc. 334). Cruz filed his reply on June 11, 2019, with two exhibits attached, namely a copy of a transcript from a resentencing hearing under the FSA in United States v. Potts, a Southern District of Florida case[2], and a copy of a letter Cruz sent the sentencing judge regarding his achievements in prison and his rehabilitation efforts. (Docs. 336, 336-1 & 336-2). Cruz then filed supplemental exhibits which included copies of his GED and certificates from various programs, trainings and courses he has completed in prison. (Doc. 337).

         On July 9, 2019, Cruz filed a notice of supplemental authority, namely, a copy of a July 8, 2019 Order in the case of United States v. Loner, Crim. No. 1:00-CR-50, Doc. 370 (M.D. Pa. July 8, 2019), in which Judge John E. Jones, III, granted the defendant's motion for a resentencing hearing with respect to his motion under the FSA. (Doc. 338). However, in the Order, the court specifically stated that “our decision is based upon the unusual facts and circumstances of the case sub judice, thus we make no determination as to whether every potentially eligible defendant is wholesale entitled to a resentencing hearing under the First Step Act.

         Finally, on July 11, 2019, Cruz filed letters to the court from his mother, his niece and his child, Davaysia Cruz. (Docs. 339 & 340). In the letters, Cruz's family seeks his immediate release from prison and his mother indicates that if he is released, he can live with her.

         After considering the briefs of the parties, and related materials, Cruz's motion for a resentencing hearing and for a reduction of sentence under the FSA will be GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         Cruz was found guilty by a jury of conspiracy to distribute and possess with intent to distribute more than 50 grams of a mixture or substance containing cocaine base known as crack cocaine and cocaine, in violation of 21 U.S.C. §§841(a)(1) and 846, of distribution and possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base known as crack cocaine, in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(A)(iii), and money laundering in violation of 18 U.S.C. §1956(a)(1)(A)(I). The jury did not make findings with respect to the type or quantity of controlled substances Cruz possessed and distributed. During the relevant time, the statutory penalty for a drug offense involving 50 grams of crack cocaine under 21 U.S.C. §841(b)(1)(A)(iii) was a minimum of 10 years and a maximum term of life, with a minimum term of 5 years supervised release.

         In the PSR, the Probation Office determined that Cruz should be held responsible for more than 1.5 kilograms of crack cocaine which, under the Sentencing Guidelines in effect in 1995, resulted in a base offense level of 38. The PSR also found that Cruz should be given a 2-level enhancement because dangerous weapons were possessed, a 4-level enhancement based on his role in the offense, and a 2-level enhancement for obstruction of justice. Thus, the PSR determined that Cruz's total offense level was 46, which became an offense level of 43, the highest in the Sentencing Table. Cruz's criminal history category was found to be IV and, combined with a total offense level of 43, his Guideline term was life imprisonment.

         Cruz was originally sentenced on May 1, 1996. The court found the amount of drugs involved with Cruz's offenses was between 50 grams to 150 grams of crack cocaine, resulting in a base offense level of 32. The court also eliminated the 2-level enhancement for obstruction of justice. The court included a 2-level enhancement for Cruz because dangerous weapons were possessed, and a 4-level enhancement based on his role in the offense. Cruz's total offense level was 34. Based on Cruz's offense level of 34 and with a criminal history category of IV, his guideline range was 324 to 405 months imprisonment. The court then sentenced Cruz to 324 months imprisonment on Counts 1 and 2, the drug offenses, and 240 months imprisonment on Count 6, money laundering, to run concurrently, followed by a 5-year term of supervised release.

         Subsequently, the court reduced Cruz's sentence to 262 months pursuant to Amendment 706. Cruz's sentence was further reduced to 168 months under Amendment 750. Finally, Cruz's sentence was reduced to 135 months, his current term, pursuant to Amendment 782.

         II. DISCUSSION

         In his present motion, Cruz seeks a further reduction in his sentence this time under §404 of the FSA. He states that “[b]ased on Section 404 of the First Step Act, [his] statutory range is reduced from 10 years to life, with a minimum 5-year term of supervised release, to 0 to 20 years, with a minimum 3-year term of supervised release.” Thus, he contends that he is eligible for a sentence of time served. The government states that although Cruz is eligible for a further reduction in his sentence under §404 of the FSA, since he has already received three reductions under Amendments 706, 750 and 782, an additional variance from his current guideline range of 135 to 168 is not warranted. The government also points out that “135 months is the bottom of the current guideline range applicable to this defendant in light of the changes occasioned by the [FSA].” The parties also dispute whether a hearing by the court is necessary if the court does not impose a sentence of time served.

         In United States v. Davis, 2019 WL 1054554, *1 (W.D.N.Y. March 6, 2019), the court addressed the FSA and explained:

Section 404 of the First Step Act makes retroactive Sections 2 and 3 of the Fair Sentencing Act of 2010 (“the Fair Sentencing Act”), Pub. L. 111-220, 124 Stat. 2372, 2372 (2010). Section 2 of the Fair Sentencing Act “increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum.” Dorsey v. United States, 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Section 3 of the Fair Sentencing Act eliminated the 5-year mandatory minimum sentence for simple possession of crack cocaine. See id.
The First Step Act permits a court that imposed a sentence for a “covered offense” to now “impose a reduced sentence as if sections 2 and 3 of the Fair Sentence Act of 2010” were in effect at the time the “covered offense” was committed. First Step Act, §404(b). 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, ” that was committed before August 3, 2010. First Step Act, §404(a).

         Cruz's motion falls under 18 U.S.C. §3582(c)(1)(B), “which permits modification of an imposed term of imprisonment to the extent expressly permitted by statute.” Id. at *2. See also United States v. Crews, 2019 WL 2248650, *4 (W.D.Pa. May 24, 2019) (“The court's limited authority to reduce defendant's sentence under the First Step Act is provided by 18 U.S.C. §3582(c)(1)(B).”).

         No doubt that Cruz was convicted of a “covered offense” committed before August 2, 2010, and the Fair Sentencing Act reduces his statutory penalties. See Davis, 2019 WL 1054554, *3 (“To be eligible for relief under the First Step Act, a defendant must have been convicted of a ‘covered offense' committed before August 3, 2010.”); United States v. Copple, 2019 WL 486440 (S.D.Ill. Feb. 7, 2019) (“Section 404 [of the FSA] allows the Court to reduce a defendant's sentence for a crack cocaine offense” and, the FSA “only changed the statutory penalty range for certain crack cocaine offenses.”). Thus, Cruz is eligible for relief under the FSA.

         However, §404(c) provides that, “Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” As such, it is within the court's discretion whether to grant Cruz a sentence reduction under the FSA. See United States v. Glore, - F.Supp.3d -, 2019 WL 1060838, *2 (E.D.Wis. 2019) (“The [FSA] does not mandate sentence reductions for defendants who meet these qualifications; it leaves to the court's discretion whether to reduce their sentences.”); Crews, 2019 WL 2248650, *4 (“If a district court determines that a defendant is eligible for relief under the First Step Act, the district court may exercise its discretion to reduce the defendant's sentence.”) (string citations omitted). As the court in Glore, id., also pointed out, the FSA does not “reduce the statutory penalties for [eligible] defendants; it does not retroactively subject such defendants to the lower statutory minimums and ...


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