This matter comes before the Court on Defendant Adolphus Black's Motion to Reduce Sentence Pursuant to the First Step Act of 2018 (the "Motion"). (ECF No. 154.) Black asserts that the First Step Act entitles him to relief because he committed a covered offense before August 3, 2010. (Mot. 1-3.) The United States responded, recognizing that the First Step Act applies to Black but disputing the extent of relief Black seeks in the Motion (the "Opposition"). (Opp'n 1, ECF No. 157.) Black replied. (ECF No. 159.) The Motion is ripe for disposition. For the reasons articulated below, the Court will grant in part and deny in part the Motion.
I. Background
In 2004, a jury convicted Black of three counts: (1) possessing at least 200 grams but less than 300 grams of powder cocaine, in violation of
The presentence report prepared following these convictions attributed to Black 249.8 grams of powder cocaine for Count One and 59.5 grams of cocaine base for Count Three. (PSR ¶¶ 5-6.) The presentence report then organized the three counts into two groups of "closely related counts" before tabulating the combined adjusted offense level. See U.S. SENTENCING GUIDELINES MANUAL ("USSG") ch.3, pt. D, introductory cmt. (U.S. Sentencing Comm'n 2004). For Counts One and Three (the first group), the presentence report determined an adjusted offense level of 32 based on the quantity of drugs involved in the offenses. (PSR Wkst A.) For Count Two (the second group), the presentence report calculated an offense level of 24, pursuant to USSG § 2K2.1(a)(2), because Black possessed a firearm after sustaining two felony convictions for crimes of violence. (PSR Wkst A, 2.) Combining the offense levels applicable to each group resulted in a combined adjusted offense level of 33. (PSR Wkst B).
The presentence report also classified Black as a career offender based on his convictions for New York robbery offenses
Although Black objected to his status as a career offender and argued that his criminal history score substantially overrepresented the seriousness of his criminal history, the Court overruled his objection.
II. Legal Framework under the First Step Act
Following Black's conviction, Congress passed, and the President enacted, the Fair Sentencing Act of 2010 (the "Fair Sentencing Act"), Pub. L. No. 111-220 ;
Section 404 of the First Step Act permits "[a] court that imposed a sentence for a covered offense ... [to] impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111-220 ;
Section 404 of the First Step Act does not expressly provide for a full or plenary resentencing or for a reconsideration of the original sentencing determinations.
This approach mirrors the Fourth Circuit's analysis under Rule 35(b), which allows the Court to "consider other sentencing factors ... when deciding the extent of a reduction." United States v. Davis ,
In determining the propriety of a sentence modification, the Court first addresses whether a reduction comports with the requirements of the First Step Act and then "consider[s] whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Dillon v. United States ,
III. Analysis
A. Black's Conviction in Count Three Constitutes a Covered Offense
Black committed an offense before August 3, 2010, which involved distributing fifty grams or more of crack cocaine (Count Three). The United States does not dispute that Black's offense in Count Three constitutes a "covered offense" as defined by the First Step Act. See First Step Act, Pub. L. 115-391, § 404(a);
1. Changing the Penalty for Count Three Affects Sentence Grouping
Pursuant to the First Step Act, Count Three no longer carries a ten-year mandatory minimum sentence and a maximum sentence of life in prison.
Critically, however, the presentence report grouped Black's Guidelines for Counts One, Two, and Three in accordance with the grouping rules provided in the U.S. Sentencing Guidelines Manual Chapter Three, Part D. (PSR Wkst B.) The United States did not discuss sentence grouping in its Opposition but recognized that the First Step Act changed Black's statutory penalty and Guidelines range for Count Three. (Opp'n 12.) Utilizing the applicable sentence grouping Guidelines, reducing the offense level for Count Three pursuant to the First Step Act similarly reduces Black's Guidelines range for Count Two to 262 months to 327 months.
2. The Career Offender Sentencing Enhancement Does Not Apply
The Court must consider another imperative issue: whether it should address the prior error in labeling Black a career offender. When the Court initially sentenced Black, the Guidelines explained that predicate offenses such as his New York robberies should be considered one offense.
The Court simply cannot ignore an error of this magnitude, particularly where Black objected to the career offender enhancement before sentencing and raised on appeal a related challenge to his career offender status.
To calculate the applicable Guidelines range, the Court must first determine the offense level and criminal history pursuant to USSG § 1B1.1(a). See United States v. Muldrow ,
To be sure, the fact that the First Step Act permits sentence modification and all parties now recognize that Black should not have been sentenced as a career offender under the settled law at the time of his sentencing makes this case distinguishable from others. Cf. Whiteside v. United States ,
Because the First Step Act permits this Court to recalculate Black's applicable Guidelines range, the Court finds that Black's Guidelines range should not be based on the erroneous career offender enhancement.
C. Black Qualifies for a Sentence Reduction Pursuant to the First Step Act
Black requests that the Court reduce his sentence to time served based on the Guidelines range, absent the career offender enhancement, of 188 to 235 months.
In enacting the First Step Act, Congress determined that our criminal justice system disparately over sentenced drug offenders like Black. Black lawfully seeks relief based on the modified penalties for crack cocaine offenses that the First Step Act created. While the Court previously sentenced Black at the low end of his applicable Guidelines range, the presentence report erroneously calculated that range using a misapplied career offender sentence enhancement.
Looking to the corrected Guidelines range of 188 months to 235 months, the Court must determine the appropriate reduction that the First Step Act affords to Black. As suggested by the United States Sentencing Commission, the Court will consider the
The Court also finds that reducing Black's sentence to 210 months does not threaten public safety. Black has accumulated only three infractions in his fifteen years in prison, all of which were non-violent incidents. (Reply 9.) The United States and the Bureau of Prisons recognize that he completed dozens of programs while incarcerated and acknowledge him as a good worker. (Opp'n 2.) While Black has been the subject of investigations concerning very serious behavioral allegations in prison, (Opp'n 2), those allegations do not warrant subjecting Black to a period of incarceration that Congress, through the First Step Act, has deemed excessive.
Accordingly, the Court finds that, after grouping the closely related counts and applying the 188 months to 235 months Guidelines range, reducing Black's sentence to 210 months on each count of conviction comports with the First Step Act. The Court GRANTS the Motion in part, (ECF No. 154), and REDUCES Black's sentence on each count to 210 months, running concurrently. The Court DENIES the Motion as to Black's terms of supervised release. Black's June 6, 2005 sentencing judgment SHALL otherwise remain unchanged.
It is SO ORDERED.
Notes
The presentence report contradicts itself regarding Black's arrest dates for these robberies. Regardless, the presentence did not identify an intervening arrest for this set of offenses.
The presentence report calculated a total of eleven criminal history points for Black based on his New York robbery offenses (nine points) and two criminal possession of marijuana offenses (two points). (PSR Wkst C.) Black, therefore, does not have other predicate offenses that qualify him for career offender status. In any event, the presentence report identified only the robbery offenses as predicate crimes of violence for the career offender designation, and the Court may not substitute a previously unidentified conviction to sustain Black's career offender designation. United States v. Winbush ,
The presentence report described Black's objection:
The Defense Attorney, William E. Riley, IV, objects to the application of Career Offender status to the defendant. He states that the Robbery convictions used are "stale" as the occurred over 15 years ago, that one occurred when the defendant was a juvenile, and that the offenses were like offenses that occurred on consecutive days sharing the same arrest dates and one sentencing date.
PSR B-1.
Because the robberies occurred during the same period in September 1987 without an intervening arrest, they should not have counted as separate predicate crimes of violence for the career offender sentence enhancement. See USSG § 4A1.2(a)(2) (2004). However, the predicate robbery offenses qualify as violent felonies for the Armed Career Criminal Act, which increased the statutory penalty Black faced for Count Two from a maximum of ten years to a minimum of 15 years. See
Section 404 provides:
SEC. 404. APPLICATION OF FAIR SENTENCING ACT.
(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 Stat. 2372 ), that was committed before August 3, 2010.
(b) Defendants Previously Sentenced.-A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220 ;124 Stat. 2372 ) were in effect at the time the covered offense was committed.
(c) Limitations.-No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220 ;124 Stat. 2372 ) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.
First Step Act, Pub. L. No. 115-391, § 404,
The presentence report attributed 59.5 grams of cocaine base to Black for Count Three. The Fair Sentencing Act modified the drug quantities necessary to trigger the mandatory ten-year minimum sentence from 50 grams to 280 grams. Pub. L. No. 111-220, § 2(a)(2),
The penalty for Count One remains capped by the 240-month statutory maximum. (PSR Wkst D.)
United States Sentencing Guidelines § 4A1.2(a)(2) provided "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A 1.1 (a), (b), and (c)." USSG § 4A1.2(a)(2) (2004). The Commentary to that section explained,
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.
USSG § 4A1.2 app. n.3 (2004). See also United States v. Huggins ,
Determining the Guidelines range after analyzing the grouping rules, modified drug weights, offense levels, and Black's criminal history generates no easy task. As other courts have observed, some "sentencing adventures [are] more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls." United States v. Perez-Silvan ,
As a fellow jurist observed, judges are not infallible:
But, whenever judges learn of significant mistakes that affect the outcome of a case, there is value to correcting them transparently. Correcting errors is not only required to do justice, but reemphasizes a sad but important truth-that although almost all judges try very hard to do their best, we sometimes fall short. More frequent admissions of human fallibility will increase the public appreciation of the role of the courts and their capacity for human error.
Hon. Andrew D. Hurwitz, When Judges Err: Is Confession Good for the Soul? ,
While the United States disputes the Court's ability to correct this error in a First Step Act proceeding, the United States does not identify what relief or procedural vehicle Black could utilize to remedy his erroneous career offender status. (See ECF No. 143 at 6 n.3 (United States recognizing that Black should not have been sentenced as a career offender in 2005).) To that end, the Court cannot discern how Black could raise a successful ineffective assistance of counsel claim in a § 2255 motion, as Counsel for Black effectively objected to Black's career offender status prior to sentencing. Cf. United States v. Carthorne ,
Also, apart from the applicable First Step Act, there has been no change in the law to afford Black relief through other postconviction proceedings. See , e.g. , United States v. Wheeler ,
To the extent that the First Step Act does not make clear how Courts are to proceed when confronted with such errors, the Court notes that the rule of lenity generally applies to ambiguous statutes. United States v. Shabani ,
This case presents unique circumstances, so the Court does not conclude that a defendant may challenge every aspect of sentencing through the First Step Act. But the Act leaves much to the Court's discretion. First Step Act, Pub. L. No. 115-391, § 404,
The Court has been advised that Black's projected release date is May 10, 2030. (Mot. 1 n.1.)
The table below summarizes the differences in the Sentencing Guidelines after the First Step Act:
Original Judgment Fair Sentencing Act/First Step Act (absent misapplied Career Offender Guideline) Total Offense Level: 37 33 Criminal History Category VI IV Guideline Range 360 months to life 188 months to 235 months Sentence Imposed 360 months 210 months
To the extent Black requires any treatment for the allegations contained in his prison records, the Court urges the Bureau of Prisons to provide Black with such assistance. The Court, however, does not base its sentencing decision on treatment options available to Black. Tapia v. United States ,