UNITED STATES OF AMERICA v. ANTONE WHITE, et al., Defendants.
Criminal Action No. 93-97 (BAH)
UNITED STATES
Chief Judge Beryl A. Howell
MEMORANDUM OPINION
In 1994, Antone White, Eric Hicks, and Ronald Hughes were sentenced to life in prison after a jury found them guilty of drug trafficking and racketeering conspiracy offenses, stemming from White and Hicks’ leadership of, and Hughes’ membership in, the “First Street Crew,” which, from early 1988 until the defendants’ arrests approximately five years later, sold crack cocaine and engaged in “violent activities,” including murder and witness intimidation. United States v. White, 116 F.3d 903, 909–11 (D.C. Cir. 1997). Now, twenty-five years later, White and Hicks seek reductions of their sentences to time-served,
I. BACKGROUND
As necessary context for the resolution of the pending motions, summarized below is background regarding the defendants’ offense conduct, convictions and sentences, largely drawn from the defendants’ sentencing hearings and related documents, and the D.C. Circuit’s review of the defendants’ direct appeals of their convictions, followed by review of the relevant statutory background.
A. Factual Background
Starting in early 1988, for approximately five years until the defendants’ arrests, the “First Street Crew” sold “large amounts of crack” in the area of First and Thomas Streets, N.W. White, 116 F.3d at 909. Antone White “orchestrated the group’s activities,” working with several friends, including Eric Hicks from the outset and Ronald Hughes, who began working with White in 1990. Id. “Although White initially sold small amounts of cocaine, he soon became a wholesale supplier, selling ‘weight,’ . . . and fronting his cohorts smaller amounts of cocaine to sell for him.” Id. Hicks eventually “took charge when . . . White was ‘out of the neighborhood,’ i.e., in prison.” Id.
The First Street Crew’s “drug operation” involved “violent activities,” including the murder and intimidation of witnesses against them. Id. For example, “ample evidence” showed that on October 6, 1992, “White and Hughes murdered” Arvell Williams, an acquaintance of White who was assisting in the United States Attorney’s Office’s investigation of the First Street Crew. Id. at 909, 916. After White correctly suspected that Williams was cooperating with law enforcement, White and Hughes shot Williams “sixteen times at close range,” and “Williams was pronounced dead on the scene.” Id. at 909. “Several witnesses identified the shooters as White and Hughes.” Id. Moreover, one witness testified that after the murder, “he had overheard a conversation between White and Hughes in which one of them said ‘[We] killed the motherfucker,’” id. at 916 (alteration in original), and another witness “testified that White had told him ‘We took care of . . . [Williams],’” id. (second alteration in original).
1. The Defendants’ Convictions
On February 16, 1994, the jury found White, Hicks, and Hughes guilty of conspiracy to distribute and possess with intent to distribute fifty (50) grams or more of cocaine base (Count 1), in violation of
White and Hicks were also convicted of a Racketeer Influenced and Corrupt Organization (“RICO”) conspiracy, in violation of
Finally, the jury convicted all three defendants of individual counts of unlawful distribution of, or unlawful possession with intent to distribute, cocaine base. White and Hicks were convicted in Counts 18 and 11, respectively, of distribution, on different dates, of 5 grams or more of cocaine base, in violation of
Finally, each defendant was also convicted in separate counts of distribution of, or unlawful possession with intent to distribute, on different dates, a detectable amount of cocaine base, punishable by up to 20 years’ imprisonment, in violation of
Hicks was acquitted of using or carrying a firearm in relation to a drug trafficking crime (Count 15), see Verdict Form at 4, ECF No. 238, and the jury was unable to reach a verdict, resulting in a mistrial, on the charges against White and Hicks for engaging in a continuing criminal enterprise (“CCE”) (Count 2), id. at 1, 3; as well as the charges against White and Hughes for the murder of Arvell Williams in furtherance of a CCE (Count 3), first-degree murder while armed (Count 4), using and carrying a firearm in relation to a crime of violence or a drug trafficking crime (Count 19), and possession of a firearm during a crime of violence (Count 20), id. at 2, 3, 5; White, 116 F.3d at 910.
2. The Defendants’ Sentences
Following a two-day hearing, Judge Harold Greene sentenced White, Hicks, and Hughes to life in prison, after highlighting the defendants’ “very large distribution of . . . twenty-one kilos” of crack cocaine, and “the intimidation or worse of witnesses.” Sentencing Tr. (May 11, 1994) at 93:1-2, 12-13, ECF No. 354. These defendants were not “minor offenders,” id. at 92:3, but rather “kingpins in the drug trade,” id. at 92:6. Moreover, in addition to “clear and convincing evidence” that White and Hughes murdered Williams, id. at 110:8-10, “the record” was “replete with” the defendants’ “threats to others,” and included “several witnesses who . . . were obviously scared,” including “some [who] refused to give candid testimony when they finally did take the stand,” id. at 93:14-17. The sentencing judge found that life sentences for White, Hicks, and Hughes were warranted “because if witnesses can be intimidated, injured or killed, all the crime bills Congress may pass will be just illusions, limited in practical effect.” Id. at 93:23-25. Application of the sentencing guidelines and related factual findings for each defendant, as well as their multiple past challenges to their convictions and sentences, are discussed in more detail below.
a. Antone White
In determining the applicable sentencing range under the U.S. Sentencing Commission’s GUIDELINES MANUAL, White’s conspiracy convictions in Counts 1 and 5, and three individual counts of distribution of
Although White contested the PSR’s estimate of 21.87 kilograms of cocaine base, on the ground that the PSR’s calculation relied on evidence that “didn’t say whether” the drugs were “powder or crack,” Judge Greene rejected that assertion at the sentencing hearing, Sentencing Tr. (May 9, 1994) at 25:4-5, ECF No. 353, finding, “by a preponderance of the evidence,” that the 21.87 kilogram estimate was “quite conservative,” Sentencing Tr. (May 11, 1994) at 90:4-8. He concluded that the PSR “used reasonable methods,” id. at 90:6, that Probation’s “decisions are supported by the record,” id. at 90:6-7, and that the PSR “could have easily doubled the 21 kilos by using other reliable information” besides testimony at trial, id. at 90:9-11.
White’s base offense level of 42 was then increased by eight levels: (1) two levels were added for White’s possession of a dangerous weapon, under U.S.S.G. § 2D1.1(b)(1), White PSR ¶ 88, based on his “participat[ion] in the killing of” Williams, who was killed after being shot by White at close range, the recovery of a pistol with White’s fingerprint on the magazine, and the testimony of co-conspirators who watched White “handle guns” throughout the conspiracy, Sentencing Tr. (May 9, 1994) at 38:17-39:1, 42:18-23; see White PSR ¶ 53; (2) four levels were added for a role adjustment, under U.S.S.G. § 3B1.1(a), since White was a “leader of” the First Street Crew’s criminal activity, which “include[d] five or more persons,” Sentencing Tr. (May 11, 1994) at 117:10, 14-16; see White PSR ¶ 90; and (3) two levels were added for obstruction of justice, under U.S.S.G. § 3C1.1, based on (a) the “clear and convincing evidence” that White killed a cooperating witness, Williams, Sentencing Tr. (May 9, 1994) at 43:4-7, 12-13, (b) White’s warning to another member of the First Street Crew, Jeff Thomas, “not to cooperate with” the government’s investigation, id. at 43:15-17; Sentencing Tr. (May 11, 1994) at 117:17-19; see White PSR ¶¶ 82, 91, and (c) suspicions that White was involved in the murder of three other witnesses whom White believed were cooperating with the government, see White PSR ¶ 82. Judge Greene explained that he did not take “into account” the latter suspicions about the three other murders since “none of that became part of” the trial record, but noted that “it is not farfetched to say that when you have . . . a brutal killing of an informer . . . other killings or other intimidation [were] involved particularly when some
White’s total offense level added up to 50, but in accordance with U.S.S.G. § 5A, comment. (n.2), was capped at an offense level of 43. Sentencing Tr. (May 11, 1994) at 117:19-21; see White PSR ¶ 96. Combined with his criminal history category of I, since White had no prior adult convictions, White’s sentencing range under the GUIDELINES MANUAL was life imprisonment. Sentencing Tr. (May 11, 1994) at 117:22-118:9; see White PSR ¶¶ 101, 128.
(i) White’s Sentence
White was sentenced by Judge Greene to concurrent life sentences on the two conspiracy convictions in Counts 1 and 5, concurrent terms of 240 months’ incarceration on Counts 6 and 7 for his distribution of a detectable amount of cocaine base, and a concurrent term of 480 months’ incarceration on Count 18 for distribution of 5 grams or more of cocaine base, involving White’s sale of 49.99 grams of crack cocaine on October 2, 1992. See White J&C at 2; White PSR ¶ 35.
(ii) White’s Direct Appeal and Collateral Challenges
White’s sentence has been reviewed on direct appeal and on collateral review multiple times. On direct appeal, the D.C. Circuit rejected his challenges to the admission of out-of-court statements made by Williams prior to his death, White, 116 F.3d at 911, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence for his RICO conspiracy conviction, id. at 923, 926, the jury instructions on the RICO conspiracy and the drug conspiracy, id. at 925–26, the impartiality of the jury by which he was tried, id. at 928, and the propriety of sentencing him on both his drug conspiracy conviction and his RICO conspiracy conviction, id. at 930. The D.C. Circuit summarized White’s offense conduct, stating that he “orchestrated the” First Street Crew’s “drug operation and violent activities,” id. at 909, involving “large amounts of crack,” id., and that there was “ample evidence” for the district court to conclude White “murdered” Williams, id. at 916.
Likewise, White’s collateral attacks, under
White has served approximately 26.5 years of his life term of imprisonment. White Mot. at 7. White concedes that his sentencing range under the GUIDELINES MANUAL today remains life in prison, just as the time of his original sentence. Id. at 11. Nevertheless, White seeks a reduction of his sentence, under Section 404 of the First Step Act, contending that he should now be subject to the penalties in
b. Eric Hicks
Hicks’ convictions for conspiring to distribute cocaine base and RICO conspiracy on Counts 1 and 5, and his three separate counts of distribution of cocaine base in Counts 8, 10, and 11, were grouped together, under U.S.S.G. § 3D1.2(d). Hicks PSR ¶ 84. His base offense level was 42, under U.S.S.G. §§ 2D1.1(a)(3), (c)(1), based on the finding that the conspiracy “involved 21 kilos or thereabouts.” Sentencing Tr. (May 11, 1994) at 132:10-12; see Hicks PSR ¶ 85. Hicks joined White’s objection that the PSR’s estimate of 21.87 kilograms of cocaine base did not specify whether the quantities were crack or powder cocaine, see Sentencing Tr. (May 9, 1994) at 73:25–74:1-3, and also disputed responsibility for the full 21.87 kilogram cocaine base quantity, because certain amounts were sold, from 1988 to 1990, by a different organization than the First Street Crew, and because he was in jail for two months in the summer of 1991, id. at 74:4-15, 75:12-25. Hicks also noted that a “minor part” of the 21.87 kilogram quantity was based on Williams’ out-of-court statements, and objected to those small amounts of the total 21.87 kilogram quantity since he did not have an opportunity to cross-examine Williams, who had been murdered. Id. at 74:16–75:5. Judge Greene overruled these objections and concluded, based on the ample evidence supporting the PSR’s drug quantity determination, that “Hicks was involved in the conspiracy from 1988 on,” id. at 80:21-22, and that the 21.87 kilogram quantity was “appropriately attributed to the conspiracy” and “also appropriately attributed to” Hicks, Sentencing Tr. (May 11, 1994) at 132:9-12.
Hicks’ base offense level of 42 was increased by ten levels: (1) two levels were added for possession of a weapon, under U.S.S.G. § 2D1.1(b)(1), based on Hicks’ possession of a loaded gun on multiple
Hicks’ total offense level of 52 was capped at 43, pursuant to U.S.S.G. § 5A, comment. (n.2). Sentencing Tr. (May 11, 1994) at 133:7-8; see Hicks PSR ¶ 94. His criminal history category was III, “based on a prior conviction” for stealing a car, Sentencing Tr. (May 11, 1994) at 133:9-10; Hicks PSR ¶ 96, and the fact that he was charged in this federal criminal case “while on probation” in an unrelated D.C. Superior Court case, Sentencing Tr. (May 11, 1994) at 133:9-10; Hicks PSR ¶ 98. Thus, Hicks’ total offense level of 43, combined with his criminal history category of III, resulted in a sentencing range under the GUIDELINES MANUAL of life imprisonment. Sentencing Tr. (May 11, 1994) at 133:8-17; Hicks PSR ¶ 117.
(i) Hicks’ Sentence
Hicks was sentenced to concurrent terms of life in prison on the two conspiracy convictions in Counts 1 and 5, 240 months on Counts 8 and 10, involving a detectable amount of cocaine base, and 480 months on Count 11, involving the sale of 5.426 grams of crack cocaine on October 11, 1991, see Hicks PSR ¶ 34, followed by concurrent terms of 5 years of supervised release on each count, see Hicks J&C at 1–3.
(ii) Hicks’ Direct Appeal and Collateral Challenges
On direct review, the D.C. Circuit affirmed Hicks’ convictions and sentence, rejecting his challenges to the admission of Williams’ out-of-court statements, White, 116 F.3d at 911, the denial of his motion to sever his trial from the trial of his co-defendants, id. at 916, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence for the RICO conspiracy conviction, id. at 925, the jury instructions on the drug conspiracy, id. at 926, the impartiality of the jury by which he was tried, id. at 928, and the propriety of sentencing him on both his drug conspiracy conviction and his RICO conspiracy conviction, id. at 930 & n.16. The D.C. Circuit highlighted that Hicks “took charge” of the First Street Crew when White was in jail, id. at 909, and that “the independent evidence showing Hicks’s role as a large-scale crack distributor was substantial,” id. at 916. Hicks’ sentence “became final” when his petition for a writ of certiorari to the Supreme Court was denied. United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).
None of Hicks’ subsequent collateral motions attacking his conviction and sentence, under
Hicks’ motion for a sentence reduction pursuant to
Having served approximately 26.5 years of his original life sentence, Hicks Suppl. Mot. at 7, Hicks concedes that his sentencing range under the GUIDELINES MANUAL today remains life in prison, just as the time of his original sentence, id. at 10. Nonetheless, he seeks a sentence reduction, pursuant to Section 404 of the First Step Act, claiming that he should now be subject to the penalties in
c. Ronald Hughes
Hughes’ convictions for the cocaine base distribution conspiracy in Count 1, and three individual counts of distribution, or possession with intent to distribute, cocaine base in Counts 9, 12, and 13, were grouped together, under U.S.S.G. § 3D1.2(d). Hughes Presentence Report (“Hughes PSR”) ¶ 87, ECF No. 627-1. His base offense level was 40, under U.S.S.G. §§ 2D1.1(a)(3), (c)(2), based on the PSR’s attribution of responsibility to Hughes for 10.94 kilograms of cocaine base, a “pro
Hughes objected to the 10.94 kilogram quantity, claiming “he was absent for seven months in 1990 and 1991,” Sentencing Tr. (May 11, 1994) at 138:19-20, and any quantities in the PSR’s estimate from that time period “should be deducted,” id. at 138:20-21, such that he “should be held accountable, given those numbers, for 4.25 kilograms of cocaine,” Sentencing Tr. (May 9, 1994) at 54:6-7. Rejecting those objections, Judge Greene found that Hughes was “on the street selling” in the 1990 to 1991 time period, and even if the seven-month time period were “deducted,” the “amount would still be over five kilos” and thus would not change Hughes’ base offense level. Sentencing Tr. (May 11, 1994) at 138:19-25–139:1.
Hughes’ base offense level of 40 was increased by four levels: (1) two levels were added for possession of a firearm, under U.S.S.G. § 2D1.1(b)(1), based on Hughes’ participation in shooting death of Williams and on “co-conspirator testimony” corroborating Hughes’ possession of guns during the conspiracy, Sentencing Tr. (May 9, 1994) at 69:10-13; Sentencing Tr. (May 11, 1994) at 139:4-6; Hughes PSR ¶ 89; and (2) two levels were added for obstruction of justice, under U.S.S.G. § 3C1.1, because Hughes murdered Williams and threatened, while in D.C. jail, to “shank [] up” Dequette Barr, another member of the First Street Crew, when he heard that Barr planned to testify against Hughes at trial, Sentencing Tr. (May 9, 1994) at 69:14-19; Sentencing Tr. (May 11, 1994) at 139:5-6; Hughes PSR ¶¶ 76, 92.
Hughes’ total offense level of 44 was capped at an offense level of 43, under U.S.S.G. § 5A, comment. (n.2). Sentencing Tr. (May 11, 1994) at 139:7-8; Hughes PSR ¶ 97. This total offense level, combined with Hughes’ criminal history category of III, based on “several” prior “drug convictions,” Sentencing Tr. (May 11, 1994) at 139:5-6, resulted in a sentencing range under the GUIDELINES MANUAL of life in prison, id. at 139:9-19; Hughes PSR ¶ 123.
(i) Hughes’ Sentence
Hughes was sentenced to life imprisonment on the conspiracy conviction in Count 1, and concurrent terms of 240 months’ imprisonment on Counts 9, 12, and 13 for distribution of a detectable amount of cocaine base, followed by concurrent terms of 5 years of supervised release on all counts. Hughes J&C at 2, 3.
(ii) Hughes’ Direct Appeal and Collateral Challenges
Hughes’ sentence was affirmed on direct appeal by the D.C. Circuit, over Hughes’ challenges to the admission of out-of-court statements by Williams, White, 116 F.3d at 911, the timing of the government’s disclosure of its witness list and related Brady violations, id. at 918, limitations placed on his cross-examination of three government witnesses, id. at 919, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence that Hughes joined the conspiracy after his eighteenth birthday, id. at 922, the jury instructions on the drug conspiracy, id. at 926, and the
In October 2000, Judge Robertson granted Hughes’ motion for a reduction of sentence, under
At the same time, Hughes moved to vacate his sentence, under
Hughes completed his 360-month term of imprisonment on May 13, 2019 and is currently serving his concurrent 5-year terms of supervised release. Hughes Reply at 1. Hughes concedes that today, the bottom of his sentencing range under the GUIDELINES MANUAL remains 360 months. Hughes Mot. at 8. Even so, Hughes now seeks, pursuant to Section 404 of the First Step Act, a reduction of his supervised release terms from 5 to 3 years, Hughes Reply at 2, 14, claiming that he should now be subject to the penalties in
B. Statutory Background
The
“During the next two decades, the [U.S. 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.” Id. at 268. Thus, in 2010, well after the instant defendants’ 1994 sentencings, Congress “accepted the Commission’s recommendations . . . and enacted the” FSA into law, id. at 269, “reducing the crack-to-powder cocaine disparity from 100–to–1 to 18–to–1,” id. at 264. Specifically, FSA’s section 2, titled “Cocaine Sentencing Disparity Reduction,” provides, in full:
(a) CSA.—Section 401(b)(1) of the
Controlled Substances Act (21 U.S.C. 841(b)(1)) is amended—
- in subparagraph (A)(iii), by striking “50 grams” and inserting “280 grams”; and
- in subparagraph (B)(iii), by striking “5 grams” and inserting “28 grams”.
(b) IMPORT AND EXPORT ACT.—Section 1010(b) of the
Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended—
- in paragraph (1)(C), by striking “50 grams” and inserting “280 grams”; and
- in paragraph (2)(C), by striking “5 grams” and inserting “28 grams”.
FSA,
The Supreme Court has summarized this statutory provision, stating that FSA’s section 2(a) “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, 567 U.S. at 269. Although the FSA’s more lenient penalties for crack cocaine offenses were retroactively available to defendants who committed a drug offense prior to the FSA’s effective date of August 3, 2010, but were sentenced for the offense after that date, see id. at 282, this new penalty regime did not apply to defendants sentenced prior to August 3, 2010, such as the defendants in this case, see United States v. Swangin, 726 F.3d 205, 207 (D.C. Cir. 2013).
Recently, in December 2018, however, Congress enacted Section 404 of the First Step Act to further the objective of the FSA by making sections 2 and 3 of the FSA retroactively available. See
(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.
Eligibility for relief under Section 404 is limited to defendants previously sentenced for “a covered offense,” as defined in subsection (a), and not subject to the “limitations” in subsection (c). Id.
The defendants’ pending motions request sentence reductions, based on the authorization in Section 404(b) to apply retroactively FSA’s section 2. See generally White Mot; White Reply, ECF No. 705; White Suppl. Reply, ECF No. 708; Hicks Suppl. Mot.; Hicks Reply, ECF No. 706; Hicks Suppl. Reply, ECF No. 709. Hughes Mot.; Hughes Reply. The government disputes that the defendants are eligible for any sentence reductions under Section 404, on the ground that White, Hicks, and Hughes were not previously sentenced for a “covered offense,” as defined in Section 404(a). See generally Gov’t’s Resp. (White), ECF No. 703; Gov’t’s Resp. (Hicks), ECF No. 702; Gov’t’s Resp. (Hughes), ECF No. 704. Even if the defendants are eligible, the government opposes any reduction of their sentences as “not warrant[ed]” and “inappropriate.” Gov’t’s Resp. (Hicks) at 30, 31; accord Gov’t’s Resp. (White) at 29, 31; Gov’t’s Resp. (Hughes) at 28, 29.
Briefing on the defendants’ motions was completed on May 29, 2019 and these motions are now ripe for resolution.
II. DISCUSSION
White, Hicks, and Hughes’ pending motions for reduced sentences under Section 404 raise several key questions with which district courts across the country are grappling and arriving at different answers about the scope of eligibility and available relief as well as the applicability of extant constitutional rules articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). Here, the government contends that the defendants are ineligible for any relief and, thus, their motions should be “summarily denied.” Gov’t’s Resp. (White) at 10; accord Gov’t’s Resp. (Hicks) at 1; Gov’t’s Resp. (Hughes) at 1. The Court disagrees, finding instead that the defendants are eligible for relief under Section 404. Nonetheless, White and Hicks are not entitled to the reductions they seek to time-served sentences, nor is Hughes entitled to a reduced supervised release term, because any reduction is circumscribed by
A. Defendants Are Eligible For Relief Under the First Step Act’s Section 404.
The parties agree that the defendants must meet the eligibility requirements under Section 404 to obtain a discretionary sentence reduction but dispute whether their convictions are “covered offenses” within the meaning of the First Step Act’s Section 404(a). See White Mot at 2; Gov’t’s Resp. (White) at 12; Hicks Suppl. Mot at 2; Gov’t’s Resp. (Hicks) at 12; Hughes Mot. at 2; Gov’t’s Resp. (Hughes) at 11. For the reasons discussed below, White, Hicks, and Hughes are eligible for sentence reductions under Section 404.
The defendants here are eligible for sentence reduction relief under Section 404 if they have been previously sentenced “for a covered offense.”
White, Hicks, and Hughes were sentenced on Count 1 for federal statutory violations occurring prior to August 3, 2010, under
The government reads Section 404(a)’s definition of “covered offense” differently. Instead of a straightforward reading of the provision, the government contends that to be eligible, the defendant’s “violation” must involve a quantity of crack cocaine that would have triggered a different statutory penalty under FSA’s sections 2 or 3. Gov’t’s Resp. (White) at 23; accord Gov’t’s Resp. (Hicks) at 23; Gov’t’s Resp. (Hughes) at 15. In other words, the defendants’ eligibility under the definition of “covered offense” is “determined based on the actual [drug] quantity involved in the offense.” Gov’t’s Resp. (White) at 25; accord Gov’t’s Resp. (Hicks) at 25; Gov’t’s Resp. (Hughes) at 23. Since the defendants’ convictions on Count 1 involved a conspiracy to distribute 21.87 kilograms of crack cocaine, as to White and Hicks, and 10.94 kilograms of crack cocaine as to Hughes—drug quantities exceeding the current 280 grams to trigger the 10-year mandatory minimum, under
Applying the same reasoning, the government asserts that White and Hicks are ineligible on Count 5, because a violation of
The government grounds this drug-quantity-driven eligibility theory in the text of Section 404(a), explaining that “the eligibility inquiry” depends on whether the statutory penalties for the “violation” that the defendant committed were modified by the FSA. Gov’t’s Resp. (White) at 14; Gov’t’s Resp. (Hicks) at 15; Gov’t’s Resp. (Hughes) at 13. This interpretation construes the restrictive phrase, “the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010” (“Restrictive Clause”), as modifying the word “violation” and not the closer noun phrase “Federal criminal statute.” Put another way, the government reads Section 404(a) as defining the term “covered
Premised on that reading of Section 404(a), the government proceeds further to interpret the phrase “violation of a Federal criminal statute” to refer to a defendant’s actual conduct, i.e., the actual quantities of crack cocaine involved in a defendant’s offense. Gov’t’s Resp. (White) at 14; Gov’t’s Resp. (Hicks) at 15; Gov’t’s Resp. (Hughes) at 14. As a necessary corollary to that interpretation, the government contends that the actual drug quantities originally applied atsentencing may be considered, notwithstanding that those quantities were not found by a jury beyond a reasonable doubt, because the Apprendi/Alleyne rule does not apply. See Gov’t’s Resp. (White) at 13; Gov’t’s Resp. (Hicks) at 14; Gov’t’s Resp. (Hughes) at 13. Hence, the government’s narrow interpretation of “covered offense” would eliminate from eligibility for sentencing reduction relief under Section 404(a), defendants whose sentencing exposure would be no different under FSA’s Sections 2 or 3 in reliance on the drug quantities judicially found at the original sentencing. Gov’t’s Resp. (White) at 13; Gov’t’s Resp. (Hicks) at 13; Gov’t’s Resp. (Hughes) at 12. This would restrict eligibility to defendants whose offense conduct involved “over 5 grams, but not 28 grams or more,” of cocaine base, Gov’t’s Resp. (Hicks) at 14 n.11, or offense conduct involving over 50 grams, but not 280 grams or more of cocaine base.
The government’s multi-layered construction of the “covered offense” definition in Section 404(a) is inconsistent with both the statutory text and normal canons of statutory interpretation. Moreover, as discussed more fully infra, in Part II.C., the government’s reading tangles two separate issues regarding the scope of eligibility and application of Apprendi and Alleyne to sentences originally imposed prior to the Supreme Court’s articulation of the constitutional prohibition on use of judicial factfinding, including about drug quantities, that are not found by a jury beyond a reasonable doubt or admitted by the defendant to increase the severity of the authorized penalties. Importing the debate over whether the Apprendi/Alleyne rule should apply to an analysis of eligibility and the proper construction of Section 404(a) is not only misplaced but also unnecessary. The “covered offense” definition looks directly to whether the statute of conviction was modified by FSA’s section 2 or 3, not a drug quantity finding, making the eligibility determination distinct from any subsequent determinations of whether areduced sentence is available to a defendant under Section 404(b) and whether, if available, a sentencing reduction should be granted as a matter of discretion.
To unpack why the government’s drug-quantity-driven interpretation of Section 404(a)’s definition of “covered offense” is wrong requires a “holistic endeavor” to “determine[] meaning by looking not to isolated words, but to text in context, along with purpose and history.” Gundy v. United States, 139 S. Ct. 2116, 2126 (2019) (internal quotations marks and citations omitted). In this regard, the government’s drug quantity approach “misreads the text of the First Step Act, undermines the purpose of the Act, and is inconsistent with the decisions of the vast majority of courts that have decided this issue.” United States v. Rose, 379 F. Supp. 3d 223, 228 (S.D.N.Y. 2019).8 Each of these points is discussed in turn.
A close textual analysis of Section 404(a) shows that the government’s starting premise—that the Restrictive Clause modifies the noun “violation” and not the closer noun phrase “Federal criminal statute”—is incorrect for three reasons: (1) the nearest-reasonable referent canon counsels that the Restrictive Clause modifies the closer noun phrase “Federal criminal statute” and not the more distant word “violation”; (2) the government’s reading would effectively render superfluous the words “Federal criminal statute” and “statutory” in Section 404(a); and (3) the past tense of the verb phrase “were modified” in Section 404(a) confirms thatthe Restrictive Clause modifies the phrase “Federal criminal statute” and not the word “violation.”
First, under the nearest-reasonable-referent canon, “[w]hen given its most natural reading,” the Restrictive Clause modifies the nearer noun phrase “Federal criminal statute,” and not the more distant word “violation.” Rose, 379 F. Supp. at 228; see
Second, on the government’s reading that the Restrictive Clause modifies “violation,” the words “Federal criminal statute” and “statutory” in Section 404(a) become superfluous.“Congress could have straightforwardly legislated that result by omitting from § 404(a) the phrase ‘Federal criminal statute,’ which is already implied by the reference to” sections 2 and 3 of the
The government counters that determining eligibility based on the statute underlying a defendant’s conviction and penalty does not account for the word “violation,” and that word demonstrated Congress’s intention to emphasize the “actual violation” a defendant “committed.” See Gov’t’s Resp. (White) at 15 (“Congress intended courts assessing eligibility to take a case specific approach focusing on the actual violation at issue.”); accord Gov’t’s Resp. (Hicks) at 16; Gov’t’s Resp. (Hughes) at 15. The word “violation,” however, still retains the meaning the government gives that word when the Restrictive Clause is read to modify the noun phrase “Federal criminal statute.” Section 404(a)’s definition of “covered offense” tethers eligibility to the statute a defendant was found actually to have violated when sentence was imposed. In fact, assessing eligibility based on the “actual” statutory violation for which a sentence was imposed is more consistent with an “actual violation” than the government’s position, which requires taking into account drug quantities and hypothesizing what statutory violation the defendant could have been found to have violated had FSA’s sections 2 or 3 been in effect. Thus, the government’s point that Congress emphasized the “actual violation” committed is perfectlyconsistent with reading the Restrictive Clause to modify the word “Federal criminal statute” and, in fact, undercuts the government’s own interpretation.
Finally, the government overlooks the past tense of the verb phrase “were modified” in the Restrictive Clause. See Gundy, 139 S. Ct. at 2127 (analyzing Congress’s choice of “verb tense” to discern the meaning of a statute); United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). The past tense of the phrase “were modified” corroborates that the Restrictive Clause cannot modify the word “violation” since that interpretation would narrow the class of defendants newly able to obtain the benefit of FSA’s more lenient penalties for crack cocaine offenses, through Section 404, to a class of none. On the government’s reading of Section 404(a), a defendant must have been sentenced for a “violation” that was “committed before August 3, 2010,” and the statutory penalties for this pre-August 3, 2010 “violation” must have been “modified” by FSA. The only type of “violation” meeting these criteria would be one committed by a defendant convicted prior to August 3, 2010, but not sentenced by that date, because prior to Section 404’s enactment, that is the only circumstance in which the FSA was retroactively available, under the FSA itself. See Dorsey, 567 U.S. at 273 (“Congress intended the [FSA’s] more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are sentenced after that date.”); Swangin, 726 F.3d at 207 (“[B]ecause [the defendant] was convicted and sentenced before the [FSA’s] August 3, 2010 effective date, he cannot benefit from retroactive application of the [Act’s new] mandatory minimums.”). Consequently, the government’s position results in class of zero defendants who are newly able to receive,
In addition to the government’s incorrect reading of the Restrictive Clause, the government’s theory, that a defendant is only eligible for consideration of relief under Section 404(a) if the statutory penalties triggered by his actual drug quantity would be different under FSA, is undermined by Congress’s deliberate choice to define eligibility differently than the U.S. Sentencing Commission’s policy statement at
The problem in the government’s reasoning is that unlike the Sentencing Commission’s policy statement, which expressly excludes from eligibility for relief any defendant for whom the retroactive guideline amendment “does not have the effect of lowering the defendant’s applicable guideline range,”
2. The Purpose of Section 404
The purpose of Section 404 confirms the textual analysis above. “[B]oth the Fair Sentencing Act and the First Step Act have the remedial purpose of mitigating the unfairness created by the crack-to-powder cocaine ratio.” Rose, 379 F. Supp. 3d at 229. The statute accomplishes this remedial purpose by affording discretion to courts to reduce the sentences of those defendants sentenced prior to the FSA, upon review of the circumstances of an individual case. See
In light of this remedial purpose, Section 404(a)’s eligibility requirement “should be construed in favor of broader coverage,” Rose, 379 F. Supp. 3d at 229, tied to the statute underlying a defendant’s conviction and penalty, see id. As noted, the government’s position, keyed to drug quantity, limits eligibility only to those defendants responsible for drug trafficking offenses involving more than 50 grams but less than 280 grams of crack cocaine, or more than 5grams but less than 28 grams of crack cocaine. This narrow construction of eligibility contravenes the remedial purpose of the statute to have courts take a second look at the sentences for those defendants sentenced prior to the FSA. Furthermore, to the extent the statute’s text and purpose are ambiguous—and they are not—reading the statute to extend eligibility to a broader class of defendants comports with the rule of lenity’s “teaching that ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor.” United States v. Davis, 139 S. Ct. 2319, 2333 (2019).
The government challenges this broad interpretation of eligibility as turning Section 404’s “goal on its head” because rooting eligibility in a defendant’s statute of conviction “giv[es] earlier crack defendants” seeking reductions under Section 404 a lower penalty range that was not available to “later crack defendants” sentenced under the FSA itself, creating a “mass disparity” by requiring courts to impose reduced sentences “untethered to any actual facts.” See, e.g., Gov’t’s Resp. (White) at 17, 23 (quoting United States v. Blocker, 2019 WL 2051957, at *5 (N.D. Fla. Apr. 25, 2019)); accord Gov’t’s Resp. (Hicks) at 17, 18, 23; Gov’t’s Resp. (Hughes) at 16, 17, 22. As support, the government observes that if the defendants here “were resentenced based on the fiction that” their convictions on Count 1, for a conspiracy to distribute of 21.87 kilograms of crack cocaine, as to White and Hicks, and 10.94 kilograms as to Hughes, “involved only a ‘detectable’ [amount] of crack cocaine,” their “sentencing exposure would be far less than that faced by everyone charged with the same crime after” the FSA, since the Court would need to “blind” itself to “the actual quantity of crack involved in the defendants’ offenses.” Gov’t’s Resp. (White) at 15, 17; Gov’t’s Resp. (Hicks) at 16, 17; Gov’t’s Resp. (Hughes) at 15, 16.
The government’s argument that eligible Section 404 defendants could be subject to lower penalty ranges than defendants subject to the FSA suffers a fatally flawed premise largelybecause the government tangles the application of the Apprendi/Alleyne rule with its interpretation of Section 404(a). More precisely, the government’s “mass disparity” argument puts the proverbial cart before the horse by incorrectly assuming that if a defendant is eligible for a sentence reduction under Section 404(a), then the actual quantities of drugs involved in a defendant’s violation must be ignored, based on Apprendi and Alleyne, when exercising discretion under Section 404(b) to impose a reduced sentence as if FSA’s sections 2 and 3 were in effect at the time the covered offenses. As discussed infra in Part II.C, reading Section 404(a) to extend eligibility for a discretionary sentence reduction to defendants whose offense conduct involved judicial factfinding of substantial quantities of crack cocaine does not require application of the Apprendi/Alleyne rule and does not
3. The Weight of Persuasive Authority
Finally, the “weight of persuasive authority” supports reading Section 404(a) and determining eligibility by reference to the statute underlying a defendant’s conviction and penalty. Rose, 379 F. Supp. 3d at 230 (collecting district court cases reaching this same conclusion); see also United States v. Martin, No. 03-CR-795 (ERK), 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019) (“[I]t appears a majority of district courts . . . have read the statutedifferently” than the government (collecting cases)). “While a small number of courts in earlier decisions have adopted the government’s interpretation with respect to eligibility determinations, those cases remain outliers.” United States v. Lutcher, No. CR 03-338, 2019 WL 3006414, at *3 (E.D. La. July 10, 2019).
* * *
Accordingly, since the statutory penalties for each of the statutes underlying the defendants’ convictions on Counts 1, 5, 11, and 18 were modified by FSA’s section 2, the defendants were sentenced for “covered offense[s]” under Section 404(a) and are eligible for review of their sentences, under Section 404(b), to determine whether and to what extent a sentence reduction is warranted.
B. The Nature of Section 404 Sentence Reduction Proceedings
Next, the defendants urge that a proceeding under Section 404 for eligible defendants is a “freestanding remedy” that authorizes imposition of a reduced sentence “independent” of any direction otherwise in
1. First Step Act Section 404 Proceedings Are Subject to 18 U.S.C. § 3582(c)(1)(B) .
“Courts have reached different conclusions on the open question of whether Section 404(b) motions are governed by
Those “narrow exceptions” authorizing modification of an otherwise final federal sentence include when the Director of the Bureau of Prisons or a defendant has moved for compassionate release,
Here, the only one of
Indeed, Section 404 contains no provision making
Moreover, Section 404 appears in “Title IV” of the First Step Act, titled “Sentencing Reform,” and that Title’s provisions demonstrate Congress’s intention to maintain the finality of sentences already imposed. For example, Section 401, to “reduce and restrict enhanced sentencing for prior drug felonies,” and Section 403, to clarify
Accordingly, this Court rejects the defendants’ claim that Section 404 created a “freestanding remedy that authorizes the district court to impose a reduced sentence for a covered offense,” independent of
2. The Defendants Are Not Entitled to Plenary Resentencing Hearings with Defendants Present.
The fact that
Notwithstanding this statutory backdrop, the defendants characterize Section 404 as providing “resentencing” authority, rather than just “[m]odification of an imposed term of imprisonment,” as
The defendants are correct up to a point.
thus the limits on any modification must be found in the authorizing statute. The defendants veer off from the statutory language in Section 404, however, to construe this provision as authorizing broad, plenary resentencing authority. On this point, Dillon’s analysis provides helpful and binding precedent.
In Dillon, the Supreme Court concluded that in
Similarly, here, modifications to a sentence under
A second circumstance flowing from Section 404 being governed by
C. Apprendi and Alleyne Do Not Apply to Section 404 Sentence-Modification Proceedings.
The Supreme Court has “repeatedly explained [that] any increase in a defendant’s authorized punishment contingent on the finding of a fact requires a jury and proof beyond a reasonable doubt no matter what the government chooses to call the exercise.” United States v. Haymond, 139 S. Ct. 2369, 2379 (2019) (plurality) (internal quotation marks and citation omitted); see also United States v. Stoddard, 892 F.3d 1203, 1219 (D.C. Cir. 2018) (noting that under the Sixth Amendment, “facts ‘that increase the prescribed range of penalties to which a criminal defendant is exposed,’” (quoting Apprendi, 530 U.S. at 490), and “[f]acts that increase the mandatory minimum sentence are [ ] elements and must be submitted to the jury and found beyond a reasonable doubt,” (quoting Alleyne, 570 U.S. at 103) (alterations in original)). The defendants invoke this Apprendi/Alleyne rule to
In making this argument—and presumably confident in adoption of their position that the statutory maximum of 20-years’ imprisonment under
Apprendi and Alleyne’s holdings, rooted in the Sixth Amendment right to a jury trial, are not implicated here because (1) Section 404 does not increase any defendant’s sentencing exposure; (2) Section 404 relief for eligible defendants is discretionary; and (3) Section 404 does not authorize retroactive application of Apprendi and Alleyne to the defendants’ 1994 sentences. Each reason is discussed seriatim.
1. Apprendi and Alleyne Do Not Apply Because the Defendants’ Statutory Penalty Range May Not Be Increased.
Apprendi and Alleyne do not prohibit consideration of the defendants’ judge-found drug quantities in a sentence modification proceeding under Section 404 because the defendants’ statutory penalty ranges cannot be increased. This statutory provision authorizes only two possible outcomes: the defendants’ statutory ranges may remain the same, as originally decided
The defendants object that reliance on the judge-found drug quantities from their original sentencing hearing would leave their statutory penalty ranges the same and thereby “effectively” increase their statutory penalty ranges applicable in this sentence modification proceeding. White Reply at 7; accord Hicks Reply at 7; Hughes Reply at 7. This objection ignores the significance of the contextual limits on a Section 404 proceeding, namely: the defendants face no possibility, let alone even a sliver of risk, that any factual matters may be considered mandating any increase in their already final sentences. As the Supreme Court explained in Dillon, when considering authorization, under
For these reasons, the contextual difference between a sentence-modification proceeding under
Notably, the same argument put forward by the defendants—that relying
In this case, too, reliance on judge-found drug quantities to determine how FSA’s sections 2 or 3 would apply were these new penalties in effect at the time the covered offense was committed, see First Step Act § 404(b), cannot be tantamount to an increase, or aggravation, of the defendants’ statutory penalty ranges, which were already determined in 1994, see Fincher, 929 F.3d at 504. Section 404 “merely provides lenity” to impose a reduced sentence, potentially below that original and otherwise final statutory penalty range. Id.; see also Dillon, 560 U.S. at 828. Since Section 404 cannot aggravate the defendants’ statutory penalties, Apprendi and Alleyne “do[] not apply to judicial factfinding that precludes” or limits relief under Section 404. Fincher, 929 F.3d at 504.
2. Apprendi and Alleyne Do Not Apply Because Section 404 Relief is Discretionary.
No sentence reduction is required under Section 404. See First Step Act § 404(c) (“Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.”). Section 404(b) also makes abundantly clear the discretionary nature of anysentence reduction, providing that “[a] court . . . may . . . impose a reduced sentence.”
The Supreme Court’s exposition, in United States v. Booker, of the applicability of Apprendi and its progeny to judge-found facts under a mandatory guideline system is instructive. Booker “reaffirm[ed] [the] holding in Apprendi,” 543 U.S. at 244, to conclude the Sixth Amendment is violated by imposition of an enhanced sentence under mandatory guidelines based on judge-found facts (other than a prior conviction) that were not found by the jury or admitted by the defendant, id. The remedy was to treat the U.S. Sentencing Guidelines as advisory rather than mandatory to comport with the Sixth Amendment, since “[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.” Id. at 233. Booker reasoned that courts undoubtedly have “the authority . . . to exercise broad discretion in imposing a sentence within a statutory range” and thus the “constitutional issues presented . . . would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that ma[de] the Guidelines binding on district judges.” Id.
Likewise, Section 404 serves to “recommend, rather than require, the selection of particular sentences in response to differing sets of facts.” Id. at 233; see also Beckles v. UnitedStates, 137 S. Ct. 886, 893 (2017) (“Yet in the long history of discretionary sentencing, this Court has ‘never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.’” (quoting Booker, 543 U.S. at 233)). The exercise of discretion through Section 404 thus does “not implicate the Sixth Amendment.” Booker, 543 U.S. at 233.
To be sure, some district courts have found that Apprendi and Alleyne apply in Section 404 proceedings despite the discretionary nature of this sentence-modification proceeding because a drug quantity determination determines the statutory penalty range available to a defendant. See, e.g., United States v. Jones, No. 1:08CR00040, 2019 WL 3074075, at *3 (W.D. Va. July 15, 2019) (“[R]elying on the drug weight attributed to defendants in their PSRs . . . affects more than the judge’s discretion within a prescribed statutory range — it determines the prescribed range.”). The defendants latch on to such decisions as reflecting a “growing consensus.” White Reply at 9 (collecting cases); accord Hicks Reply at 8; Hughes Reply at 8.
This consensus, if “growing,” is doing so in the wrong direction. Even though a defendant’s statutorily permissible sentencing range may change upon application of FSA’s section 2, under Section 404, by permitting a sentence below a defendant’s originally imposed mandatory minimum, “[t]aking the original sentence as given, any facts found” in this proceeding “do not serve to increase the prescribed range of punishment.” Dillon, 560 U.S. at 828. As Alleyne made clear, “the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty.” Alleyne, 570 U.S. at 113 n.2 (emphasis in original). Relying on judicial factfinding as to drug quantity at the original sentencing neither alters nor aggravates a defendant’s imposed sentence when the judgein a sentence-modification proceeding has ultimate discretion whether to reduce
3. Apprendi and Alleyne Do Not Apply Retroactively.
In seeking application of the Apprendi/Alleyne rule in this sentence-modification proceeding, the defendants raise collateral attacks on the constitutionality of their original sentencings. White Reply at 4; Hicks Reply at 4; Hughes Reply at 4. Specifically, the defendants assert that “[t]he former practice of using uncharged judge-found facts to determine statutory ranges was always unconstitutional,” and “did not just become unconstitutional when Apprendi and its progeny were decided.” White Reply at 4 (emphasis omitted); accord Hicks Reply at 4; Hughes Reply at 4. They urge application of Apprendi and Alleyne so that an “unjust” aspect of their sentences is addressed. White Reply at 22; accord Hicks Reply at 22; Hughes Reply at 18.
This argument amounts to using Section 404’s limited congressional act of lenity for a collateral attack on their convictions. Such a collateral attack is not “expressly permitted” by either
“[T]he Supreme Court is the only entity that can make a new rule retroactive within the meaning of
In short, the defendants’ insistence that Apprendi and Alleyne be applied retroactively in this sentence-modification proceeding, as a matter of “just” outcomes, has been squarely rejected. This limited sentence reduction proceeding does not provide a forum to rehash that issue.11
Having concluded that the defendants are eligible to be considered for relief under Section 404, the final issues to address are whether relief is available and, if so, to what extent a sentence reduction is warranted as a matter of discretion. To return to the governing text, Section 404 permits, on motion of a defendant, the government, the Director of the Bureau of Prisons, or a court, “a reduced sentence as if sections 2 and 3 of the [FSA] were in effect at the time the covered offense was committed.” First Step Act § 404(b). The starting point then is determining how each defendant’s sentence would be affected had FSA’s section 2 been “in effect at the time the covered offense was committed.”
Section 404(b) expressly permits “a reduced sentence,” if FSA’s sections 2 or 3 would have had an effect on a defendant’s sentence and, consequently, does not restrict such “effect” solely to the “covered offense” that made the defendant eligible. First Step Act § 404(b). In other words, while Section 404(b) makes clear that a defendant must have previously been “sentence[d] for a covered offense” to be eligible for relief, see supra Part II.A, the impact of FSA’s section 2 must be considered more broadly than just a focus on the covered offense in assessing whether “a reduced sentence” is available to an eligible defendant. For instance, FSA’s section 2 may reduce the statutory penalties for a defendant’s sentence on a “covered offense” and, in doing so, may also directly affect a guideline determination for a non-covered offense that was originally grouped with the “covered offense.” See, e.g., U.S.S.G. § 4B1.1(b) (setting “career offender” offense level based on “offense statutory maximum”). In thiscircumstance, a reduction would be available on the non-covered offense, because had FSA’s section 2 been in effect at the time the covered offense was committed, the defendant’s sentencing range under the GUIDELINES MANUAL would have been different for the non-covered offense, a direct result of FSA’s section 2.12
2019) (“Although some district courts have considered the
Section 404(b) could have been written more clearly, an obvious observation when compared to the U.S. Sentencing Commission’s more clearly crafted policy guidance on retroactivity in U.S.S.G. § 1B1.10. Section 404(b)’s text partially tracks the language of the Sentencing Commission’s policy statement, at U.S.S.G. § 1B1.10(b)(1), governing sentencing reductions resulting from amended guideline ranges, but omits the policy statement’s clarifying guidance on determining whether
In contrast, Section 404 lacks an analogous express limitation that only substitution of a reduced statutory penalty range on a “covered offense” is permissible, thereby authorizing a reduction on any other component of the sentence affected by FSA’s section 2 or 3, to the extent warranted after consideration of the
Nonetheless, while Section 404(c) makes clear that a court is not required “to reduce any sentence pursuant to this section,” this provision does not express the converse that courts have unfettered discretion to impose a reduced sentence on eligible defendants. Thus, sentence reductions under Section 404 are expressly circumscribed by FSA’s section 2 or 3, and if those FSA provisions have no effect on a defendant’s sentence, no sentence reduction is available to award.
1. No Sentence Reduction Is Available, Except as to Hicks’ Conviction on Count 11.
As applied here, the parties do not dispute that the defendants’ sentences, based on their convictions on Counts 1 and 5, for offense conduct involving 21.87 kilograms, as to White and Hicks, and 10.94 kilograms, as to Hughes on Count 1, of crack cocaine, would remain the same, subject to
Gov’t’s Resp. (Hicks) at 13–14; Hughes Reply at 2; Gov’t’s Resp. (Hughes) at 12. Furthermore, the parties do not dispute that White’s concurrent term of 480 months’ imprisonment on Count 18 involving 49.99 grams of crack cocaine, would also remain the same, subject to
Similarly, not only are Hicks’ statutory penalties unchanged on Counts 1 and 5 under FSA’s section 2, but in addition, he does not dispute that his sentencing range under the current GUIDELINES MANUAL would remain unchanged. Hicks Suppl. Mot. at 10. His base offense level for an offense involving 21.87 kilograms of cocaine base would now be 36, U.S.S.G. § 2D1.1(c)(2), and would be increased by ten levels, for possession of a dangerous weapon,
For Hughes, too, who has requested a reduction in his term of supervised release, his five-year supervised release term remains statutorily required for his conviction on Count 1. See
In contrast to the defendants’ sentences on Counts 1, 5, and 18, for Hicks’ sentence on Count 11, the parties agree that his statutory penalty range for his 480-month sentence on Count 11, involving 5.426 grams of crack cocaine, would now be capped at 20 years, or 240 months, under
2. Relief Is Not Warranted, Even if Available, Except as to Hicks’ Conviction on Count 11.
Even if a sentence reduction were available on Counts 1, 5, and 18, the nature and circumstances of the defendants’ crimes, and the severity of the defendants’ offense conduct, involving the distribution of crack cocaine over several years and violence, including the murder and intimidation of witnesses against them, would not warrant relief. At the same time, Hicks’ sentence on Count 11 is reduced to time served, as he requested, Hicks Suppl. Mot. at 8, in lightof the now-available statutory maximum term of 20 years in
a. Antone White
White’s convictions on Counts 1, 5, and 18 would not warrant a sentence reduction
Review of White’s time in prison provides troubling evidence that he has not remediated. He has incurred twenty-four violations, and many of these were not minor infractions. Gov’t’s Resp. (White) at 29; Bureau of Prisons Disciplinary Record (White) (July 22, 2019), ECF No.710-1. As the government has summarized, “6 have involved fighting, 3 have involved weapons, 3 have involved drugs, and 1 involved threats.” Gov’t’s Resp. (White) at 29; Bureau of Prisons Disciplinary Record (White) (July 22, 2019). Although White attempts to minimize these incidents as being from his “earlier years in prison,” White Reply at 20, he concedes that these violations “involve[d] fighting, weapons, and threats,” with “the most recent occurring 10 years ago,”
b. Eric Hicks
Hicks’ serious offense conduct on Counts 1 and 5 likewise would not warrant a sentence reduction, even if available under Section 404. For Count 11, involving 5.426 grams of cocaine base, Hicks may receive a reduced sentence of up to 20 years’ imprisonment,
Hicks “was in charge of the First Street Crew whenever . . . White was in jail or otherwise occupied,” Sentencing Tr. (May 11, 1994) at 132:13-14, leading the large-scale distribution of over 21 kilograms of cocaine base. Furthermore, Hicks engaged in obstructive conduct, bribing another First Street Crew member to withhold information from the grand jury that was investigating him for murder. Sentencing Tr. (May 9, 1994) at 84:3-85:1; see Hicks PSR ¶¶ 69, 89. Hicks further showed a substantial disregard for others by fleeing from law enforcement officers when they attempted to arrest him, by speeding at 80 miles per hour through several red lights and crashing into four cars during rush hour. Sentencing Tr. (May 11, 1994) at 133:4-7; see Hicks PSR ¶ 90. For these reasons, no additional sentence reduction would be warranted even if available.
c. Ronald Hughes
A reduction of Hughes’ sentence on Count 1, even if available under Section
Hughes’ Bureau of Prisons disciplinary history demonstrates a continued pattern of violence while he was in prison. Bureau of Prisons Disciplinary Record (Hughes) (May 14, 2019), ECF No. 712-1. Furthermore, Hughes’ disciplinary record involves a violation as recently as 2018, for failure to obey an order; pushing staff to flee and dispose of a cell phone in 2010, and another cell phone infraction in 2015. Gov’t’s Resp. (Hughes) at 28; Bureau of Prisons Disciplinary Record (Hughes) at 1–3. Although Hughes has been released from prison and is taking steps towards a law-abiding life by holding a job and resuming a family life, Hughes Mot. at 6; Hughes Reply at 17, Hughes’ disciplinary record, over the course of twenty years, shows various incidents of violence, such as “assault on a staff member,” “assault of an inmate,” “fighting with an inmate,” “possession of a dangerous weapon,” and “assault with serious injury.” Gov’t’s Resp. (Hughes) at 28; Bureau of Prisons Disciplinary Record (Hughes) (May 14, 2019). Accordingly, a reduction is Hughes’ sentence is not warranted, even if a reduction were available under Section 404.15
III. CONCLUSION
For the foregoing reasons, the motions of Antone White, Eric Hicks, and Ronald Hughes to reduce their sentences, pursuant to Section 404 of the First Step Act, are denied, except that the sentence imposed on Eric Hicks for his conviction on Count 11 is reduced to time-served. Otherwise the sentences imposed on the defendants for their convictions on Counts 1 and 5, and White’s 480-month sentence on Count 18, remain unchanged. An appropriate Order accompanies this Memorandum Opinion.
Date: August 6, 2019
__________________________
BERYL A. HOWELL
Chief Judge