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United States v. Thompson

United States District Court, W.D. Pennsylvania

August 27, 2019



          David Stewart Cercone Senior United States District Judge.

         On April 25, 2006, Jaison Ceatrix Thompsom pled guilty to the charge of possession with intent to distribute 5 grams or more of cocaine, in the form commonly known as crack, in violation of Title 21, United States Code, sections 841(a)(1) and 841(b)(1)(B)(iii). He was sentenced on October 11, 2006, to 210 months of imprisonment and 4 years of supervised release. Presently before the court is defendant's motion for reduction of sentence pursuant to Section 404 of the First Step Act of 2018. The government opposes defendant's eligibility for relief under the Act and advocates that the motion should be denied in any event. For the reasons set forth below, the motion will be granted.

         The charges against defendant arose out of a traffic stop based on the erroneous belief that defendant was another individual wanted for a parole violation. Defendant provided a Virginia identification card in the name of Victor Rhodes. The vehicle was owned by another individual. That individual was contacted and gave consent to search the car. That search revealed quantities of crack and powder cocaine, each of which was packaged in numerous small units and located in close proximity to the driver's seat. The government's factual basis proffered at the change of plea hearing indicated that 37.5 grams of crack and 24.7 grams of powder cocaine had been seized. Defendant did not dispute the government's factual basis at the time it was given. The Presentence Investigation Report ("PSIR") listed the amounts as 6.2 grams of crack and 27.4 grams of powder cocaine. Neither party objected to or disputed the amount of crack reported in the PSIR.

         The PSIR indicated defendant was subject to a minimum of 5 and a maximum of 40 years of incarceration and at least 4 years of supervised release. Defendant's sentencing range under the United States Sentencing Guidelines was based on his designation as a career offender. The predicate offenses for this designation were a 1994 conviction in the Court of Common Pleas of Allegheny County, Pennsylvania, for aggravated assault based on defendant shooting the victim in the back. He received a 5 to 10 year sentence for this offense. The second predicate offense was a 2002 conviction for possession of a controlled substance with the intent to deliver, for which defendant received a sentence of 2 years of probation.[1] Defendant's designation as a career offender produced a total base offense level of 34 and a Criminal History Category of VI. After a two level adjustment for acceptance of responsibility, an adjusted base offense level of 32 and a criminal history category of VI produced a guidelines sentencing range of 210 to 262 months.[2]

         Defendant was sentenced to 210 months and 4 years of supervised release. His sentence and conviction were affirmed on appeal. United States v. Thompson, 285 Fed.Appx. 881 (3d Cir. 2008). His motion under the Fair Sentencing Act of 2010 for a reduced sentence based on the lowering of the guidelines ranges for crack cocaine offenses was denied due to his range being controlled by his career offender status. See, e.g., United States v. Martin, 867 F.3d 428, 431-33 (3d Cir. 2017) (Defendants whose guidelines sentencing range were set by a career offender designation are outside the scope of relief provided by the Fair Sentencing Act of 2010 and the retroactive application of the downwardly adjusted guidelines ranges for crack cocaine offenses promulgated pursuant to that Act, even if the non-career offender range was referenced in a negotiated plea agreement.).

         Defendant moves for a new sentence of time served and 3 years of supervised release under the First Step Act. He contends this Act clearly was intended to make him eligible for such relief. His underlying crack cocaine offense assertedly is a "covered offense" because the statutory penalties for the amount charged in the indictment, 5 grams or more, have been lowered by the Fair Sentencing Act and are now made retroactive by the First Step Act, and his guidelines range under the applicable career offender provisions of U.S.S.G. § 4B1.3 concomitantly has been reduced. In addition, the court imposed a sentence for this covered offense prior to 2010 and he has not received relief under either the Fair Sentencing Act or the First Step Act. Given these grounds, defendant seeks to convince the court to exercise its discretion under the First step Act based on 1) the reduced sentence that could be imposed if he were charged with the same offense today, 2) the fact that he received a sentence at the low end of the guidelines range in 2006, 3) his age at the time of the predicate offenses, 4) his current age as it relates to the statistics on recidivism, [3] and 5) his post-sentencing conduct while incarcerated.[4] Accordingly, defendant requests the court "impose" a reduced sentence at the low end of the guidelines sentencing range as it now exists.

         The government challenges defendant's eligibility for relief under the First Step Act and opposes his request for a reduced sentence in any event. It counters that the structure of the First Step Act directs the court to focus on the offense conduct and consider how that conduct would be charged under the Fair Sentencing Act's statutory limits and the current, applicable sentencing guidelines. In other words, it maintains that the First Step Act "allows courts to use their own discretion and make a reasonable, if hypothetical, judgment about how the [Act] would have affected a defendant's prosecution and sentence." Government's Brief in Opposition (Doc. No. 114) at 7. And "[i]n Thompson's case, the hypothetical exercise shows that Thompson's sentence would not have changed under the [Act]," and thus his sentence would not and should not be reduced. In this regard the government maintains that "Thompson's statutory and Guidelines ranges would have been identical: both before and after 2010, a career offender with 37.5 grams of crack cocaine would have had a statutory range of five to forty years, a base offense level of 34, and (with a reduction of two levels for acceptance of responsibility) a Guidelines range of 210 to 262 months' imprisonment." Id. His term of supervised release likewise would remain unchanged. Id. Thus, the government posits that under a proper construction of the First Step Act defendant is ineligible for relief.

         The government seeks to muster further support for its position from 18 U.S.C. § 3582(c)(1)(B). It argues that this statute's limitations on modifying an existing sentence cabin any exercise of discretion here, where the record shows that defendant possessed with the intent to distribute more than the new threshold of crack cocaine needed to trigger the statutorily mandated 5 year minimum and 40 year maximum limits of incarceration. It posits that the First Step Act places no limits on the type of information a court can consider in evaluating a motion pursuant thereto and the specific facts established by the record, including the actual drug amount, which it claims is "one of the most relevant pieces of information when assessing a defendant's crime." Government's Brief in Opposition (Doc. No. 114) at 9.

         Assuming the court agrees with defendant and finds it has discretion to impose a reduced sentence, the government opposes a reduction for the same reasons. It asserts that application of the First Step Act as advocated by defendant would result in sentencing disparities between defendants sentenced before the Fair Sentencing Act of 2010 and those who were sentenced thereafter in that those defendants whose offenses involved more than 28 grams of crack can gain the benefit of resentencing whereas those who were sentenced thereafter cannot. It projects that if defendant were charged and sentenced today, the United States Attorney's Office would pursue charges against defendant for possessing 28 grams or more of crack, thereby triggering the same statutory penalties and the same guidelines sentencing range. And it argues that the sentencing judge could have imposed a lower sentence but chose not to do so. It advocates that given this state of affairs defendant's sentence should not be changed.

         Finally, the government contends that because the current review purportedly is limited by § 3582(c)(1)(B), the court may use the amount of crack attributable to defendant in formulating a new sentence without running afoul of the due process limitations established in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 299 (2013). In addition, the limitations in a § 3582(c)(1)(B) proceeding supposedly preclude a resentencing. They likewise preclude consideration of the particular circumstances highlighted by defendant, including his limited means and education at the time of the offense, his age at the time of his release and his post-sentencing efforts toward rehabilitation. And from the government's perspective this member of the court should place the same relative emphasis on the seriousness of defendant's past criminal history and recidivism that previously was given by the sentencing judge. Based on these grounds, the government contends that defendant's sentence should not be changed in any event.

         The government's position that defendant is ineligible for relief under the First Step Act is erroneous. Defendant's sentence was governed by the Sentencing Reform Act of 1984 and the applicable statutory penalties at the time defendant was sentenced were set by the Anti-Drug Abuse Act of 1986. The Anti-Drug Abuse Act of 1986 set particularly harsh statutorily mandated minimum and maximum sentences for crack cocaine offenses. Using a 100 to 1 ratio for crack verses powder cocaine offenses, the Anti-Drug Abuse Act set a mandatory minimum of 5 and a maximum of 40 years for possession with the intent to distribute 5 grams or more of crack or 500 grams or more of powder and a minimum of 10 years and a maximum of life for 50 grams of crack or 5000 grams of powder. See generally United States v. Pierre, 372 F.Supp.3d 17 (D. R.I. 2019) (Smith, C.J.). In turn, the Sentencing Commission set "the Drug Quantity Table's entire set of crack and powder cocaine offense levels by using the 1986 Drug Act's two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set proportional offense levels for other drug amounts." Dorsey v. United States, 567 U.S. 260, 267-8 (2012). It did so not because its independent assessment supported the view that such ranges reflected sound sentencing practices or fair sentences for the conduct involved, but because the Commission "believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act's basic 'proportionality' objective." Id. at 268 (citing Kimbrough v. United States, 552 U.S. 85, 97 (2007)).

         After longstanding and persistent criticism, the Fair Sentencing Act of 2010 sought to ameliorate in part the harsh treatment of crack cocaine offenses and narrow the disparity between crack and powder cocaine offenses. See Dorsey, 567 U.S. at 268 (During the two decades following the Anti-Drug Act, "the [Sentencing] Commission and others in the law enforcement community strongly criticized Congress' decision to set the crack-to-powder mandatory minimum ratio at 100-to-1.") (collecting authority). The Act raised the threshold quantities of cocaine base triggering the enhanced penalties under the Controlled Substances Act. The threshold for the 5 to 40 year penalties was raised from 5 to 28 grams and the threshold for the 10 years to life was raised to 280 grams. Compare 21 U.S.C. §§ 841(b)(1)(A)(ii) & (iii) 841(b)(1)(B)(ii) & (iii) (2009) with Pub. L. 111-220, 124 Stat. 2372, 2372 (2010) § 2, (codified at 21 U.S.C. §§ 841(b)(1)(A)(ii) & (iii), (b)(1)(B)(ii) & (iii) (2010)).

         The Guidelines were amended with the new statutory penalties created by the Fair Sentencing Act. See Dorsey, 567 U.S. at 260. The base offense levels for various quantities of crack cocaine were lowered. See U.S.S.G. § 2D1.1 (2011). These amendments were given retroactive effect. See U.S.S.G. app. C, amend. 759; U.S.S.G. § 1B1.10(c). As a result, more than 7, 700 inmates received sentence reductions by October 2014. See U.S. Sentencing Commission, Final Crack Retroactivity Data Report Fair Sentencing Act at 2-4 (Dec. 2014), Thereafter, the Commission then amended the Drug Quantity Table again, reducing in general the offense levels for all drug offenses and in doing so further reducing the base offense levels associated with different quantities of crack cocaine. See U.S.S.G. app. C, amend. 782 (commonly referenced as the "Drugs Minus Two" Amendment/motions).

         As previously alluded to, these series of statutory reforms and concomitant amendments to the guidelines did not provide relief for all offenders who had been sentenced for offenses involving crack cocaine prior to 2010. As particularly germane here, the Fair Sentencing Act and guidelines amendments that followed did not provide relief to those who were designated as career offenders and whose final offense level was dictated by the maximum statutory penalty applicable to his or her offense. See U.S.S.G. § 4B1.1; see also Martin, 867 F.3d at 431. The question thus presented here is whether the First Step Act was intended to apply to offenders like defendant who were sentenced prior to 2010 as career offenders based in whole or in part on a crack cocaine drug trafficking offense.

         A straightforward interpretation of the statute indicates defendant is within the grant of authority providing this court with the discretion to award relief in the form of a reduced sentence. Section 404 of the Act states in relevant part:

(a) Definition of Covered Offense. - In this section, the term "covered offense" means 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 (Public Law 111-220; 124 ...

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