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United States v. Smith

United States District Court, M.D. Pennsylvania

September 20, 2019

UNITED STATES OF AMERICA
v.
LEO SMITH, III Defendant

          MEMORANDUM

          Malachy E. Mannion United States District Judge

         Pending before the court are the defendant’s motions to reduce his 240-month sentence to time served pursuant to §404 the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (“FSA”).[1] (Docs. 464 & 471). Alternatively, defendant seeks a resentencing hearing pursuant of the FSA. The government opposes the motions arguing that the defendant is not eligible for relief since the FSA did not change the statutory penalties applicable under §841(b)(1)(C). Upon the court’s review of the record in this case and the parties’ briefs, the defendant’s motions will be DENIED.

         I. BACKGROUND[2]

         On May 9, 2003, the DEA arrested Leo Smith, III, a/k/a “Killah” (the “defendant”), in Wilkes-Barre, Pennsylvania via a criminal complaint charging him with distribution and possession with intent to distribute cocaine base (“crack”) in violation of 21 U.S.C. §841(a)(1). A nine-count Indictment was returned on May 13, 2003 against the defendant and various others charging him with conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base (“crack”) in violation of 21 U.S.C. §846. In Count 9 of the Indictment, the defendant was charged with possession of firearms, including handguns and an assault rifle, during and in relation to drug trafficking felonies in violation of 18 U.S.C. §924(c)(1)(A)(I).

         On January 28, 2004, the defendant pleaded guilty to conspiracy under Count 1 of the Indictment. Under the terms of a plea agreement with the defendant, Count 1 was amended to reflect no specific quantity of cocaine base. Consequently, the defendant was exposed to a 20-year maximum imprisonment term and no mandatory minimum term. Also, the plea agreement provided for the dismissal of the firearms violation contained in Count 9 of the Indictment which could have resulted in a mandatory minimum term of imprisonment of at least five years to run consecutive to the sentence for the drug violation.

         The defendant was sentenced to 240 months in prison on October 22, 2004.[3] He filed an appeal regarding his sentence. On December 5, 2005, the defendant’s case was remanded to the district court for re-sentencing based upon United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). The defendant was re-sentenced to 240 months in prison on June 29, 2006. The defendant then filed an appeal on July 7, 2006. The Third Circuit affirmed the defendant’s 240-month prison sentence. United States v. Smith, 250 Fed.Appx. 522 (3d Cir. 2007). On April 28, 2008, the United States Supreme Court denied certiorari. Smith v. United States, 553 U.S. 1027 (2008).

         On May 11, 2010, the defendant filed a motion under 18 U.S.C.§3582(c)(2) to reduce his sentence pursuant to Amendment 706 to the Sentencing Guidelines. On June 28, 2010, the motion was denied. U.S. v. Smith, 2010 WL 11432598 (M.D.Pa. June 28, 2010). The defendant appealed and the Third Circuit affirmed the district court’s order stating that it was permissible for the district court to consider the defendant’s possession of weapons as a factor to deny the motion, even though his advisory guidelines sentence was increased by two offense levels as a result of his possession of weapons. U.S. v. Smith, 419 F.App'x 241 (3d Cir. 2011). On October 3, 2011, the Supreme Court denied certiorari. Smith v. United States, 132 S.Ct. 218 (2011).

         On April 17, 2012, the defendant filed another motion to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2) based on amendments to the Guidelines enacted after the Fair Sentencing Act. On September 4, 2012, the court denied the motion. The defendant filed an appeal on September 17, 2012, and the Third Circuit affirmed the district court’s order. United States v. Smith, 539 F.App'x 54 (3d Cir. 2013).

         On November 20, 2015, the defendant filed a motion to reduce sentence, (Doc. 411), based on Amendment 782 to the Guidelines. On July 15, 2016, the court denied defendant’s motion. (Doc. 425). The defendant filed an untimely notice of appeal on April 27, 2018, (Doc. 458), and the Third Circuit denied his appeal on February 12, 2019.

         On June 25, 2019, the defendant filed a pro se motion under the FSA. (Doc. 462). The Federal Public Defender was appointed to represent the defendant and, a motion under the FSA and brief in support were filed on his behalf on August 14, 2019. (Docs. 464 & 465). The FPD then filed an unopposed motion to withdraw from the case on August 22, 2019. (Doc. 466). On August 27, 2019, the government filed its brief in opposition to defendant’s motion.[4] (Doc. 467). Subsequently, the court granted the FPD’s motion to withdraw from the case, (Doc. 468), and allowed the defendant to proceed pro se. (Doc. 470). On September 16, 2019, defendant filed a pro se amended motion to reduce his sentence to time served under the FSA. (Doc. 471).

         II. DISCUSSION

         The government contends that defendant Smith is ineligible for relief under the FSA since he pleaded guilty to distributing an unspecified amount of crack cocaine and he was sentenced under the statutory penalties for 21 U.S.C. §841(b)(1)(C) which were not modified by the FSA. The court concurs and finds that Smith is not entitled to the relief that he seeks.

         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). ...

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