377 F. Supp. 3d 1346
S.D. Fla.2019Background
- Glover was convicted in 1997 of conspiracy, possession with intent to distribute, and distribution of crack cocaine; sentenced to 360 months (career‑offender calculation) after the court adopted the PSR attributing 87.98 grams of crack and applying a §851 enhancement.
- The Government filed a §851 information before trial identifying a prior Florida sale‑of‑cocaine conviction (the information misstated the year but attached the state judgment); Glover never responded to or contested the information.
- At sentencing the court found Glover qualified as a Career Offender under U.S.S.G. §4B1.1 (based on an aggravated battery conviction and the 1992 sale conviction) and that the §851 enhancement applied, producing a life statutory maximum and offense level 37.
- Glover later sought relief under Section 404 of the First Step Act (applying the Fair Sentencing Act retroactively) to reduce his sentence, arguing he should be treated under a lower statutory bracket and entitled to de novo resentencing (invoking Apprendi).
- The Government opposed, arguing the drug‑quantity and career‑offender findings remain binding in a §3582(c)(1)(B) proceeding and that retroactive Fair Sentencing Act application would not change the guideline range because the statutory maximum remains life due to §851.
- The court denied the motion, holding (1) the First Step Act applies but does not authorize de novo resentencing or constitutional challenges in a §3582(c) proceeding, (2) the §851 information was sufficient despite the clerical year error, and (3) even under the Fair Sentencing Act Glover remains a career offender with an unchanged guideline range (360 months to life).
Issues
| Issue | Glover's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Glover is a "covered offense" under the First Step Act | Glover: Yes; convictions predate Aug 3, 2010 and Fair Sentencing Act applies | Govt: Yes the Act applies but yields no reduction | Held: Yes covered, First Step Act applies but does not authorize relief here |
| Whether Glover is entitled to full de novo resentencing and to invoke Apprendi in §3582(c)(1)(B) proceeding | Glover: He should get full resentencing and Apprendi applies, so quantity must be jury‑found; he should be sentenced under §841(b)(1)(C) | Govt: §3582(c) proceedings are narrow; Apprendi and de novo resentencings are not permitted here | Held: Court lacks jurisdiction to entertain Apprendi/de novo resentencing in §3582(c) proceedings; §3582(c)(1)(B) is a limited remedy |
| Whether the §851 information was defective for misdating the prior conviction | Glover: Implicitly challenged adequacy; sought lower statutory bracket | Govt: §851 satisfied (timely filed/served, attached judgment) despite clerical error | Held: §851 satisfied under Perez; clerical year error is harmless and unambiguous notice was given |
| Whether retroactive Fair Sentencing Act relief would lower Glover’s guideline range | Glover: Reduction to §841(b)(1)(C) and lower offense level would yield immediate release | Govt: Even after Fair Sentencing Act, §851 raises statutory maximum to life; career‑offender status still yields same guideline range | Held: No reduction — Glover remains accountable for 87.98g, remains a Career Offender, §851 keeps life maximum, so guideline range unchanged (360 months to life) |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Dillon v. United States, 560 U.S. 817 (2010) (§3582(c)(2) does not authorize full resentencing; narrow exception to finality)
- United States v. Bravo, 203 F.3d 778 (11th Cir. 2000) (constitutional challenges are extraneous to §3582 proceedings and not properly considered there)
- United States v. Perez, 249 F.3d 1261 (11th Cir. 2001) (§851 information with clerical error can satisfy notice requirement if it unambiguously signals the conviction relied upon)
- United States v. Moore, 541 F.3d 1323 (11th Cir. 2008) (retroactive guideline amendment did not lower range where career‑offender status remained)
- Gomes v. United States, 621 F.3d 1343 (11th Cir. 2010) (discussing Fair Sentencing Act threshold changes for crack cocaine)
- United States v. Cherry, [citation="326 F. App'x 523"] (11th Cir. 2009) (Apprendi is not retroactively applicable in §3582(c)(2) reductions; prior sentencing determinations remain intact)