BERNARD A. FRIEDMAN, Senior District Judge.
This matter is presently before the Court on defendant's motion for sentence reduction pursuant to the First Step Act of 2018 [docket entry 51]. The government has filed a response in opposition, and defendant has replied. Pursuant to E.D. Mich. 7.1(f)(2), the Court shall decide this motion without a hearing.
In December 2004, defendant was named in a three-count indictment. Count One charged him with "possess[ion] with intent to distribute 5 or more grams of cocaine base in the form of crack," in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). This count further alleged that defendant "committed this offense after prior convictions in Genesee County Circuit Court for felony drug offenses had become final; that is, a 1993 conviction for Possession with Intent to Deliver Cocaine and a 1999 conviction for Possession of Cocaine."
Count Two charged defendant with being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). This count alleged that defendant possessed a pistol and a revolver after "having been convicted in Genesee County Circuit Court in the State of Michigan in 1993 of Possession with Intent to Deliver Cocaine, in 1999 of Possession of Cocaine, and in 2000 of Prison Escape."
Count Three charged defendant with possession of firearms in furtherance of drug trafficking crime, in violation of 18 U.S.C. § 924(c), based on the allegation that he possessed the two firearms alleged in Count Two "in furtherance of the drug trafficking crime of possession with intent to distribute cocaine as described in count one."
The indictment also contained the following paragraph:
Two days after the indictment was returned, the government filed the following document entitled "Penalty Enhancement Information":
All pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851.
In February 2005, defendant entered into a Rule 11 Plea Agreement in which he agreed to plead guilty to Counts One, Two, and Three. Defendant stipulated that he had three prior felony convictions as alleged in Count Two and that
Plea Agreement ¶ 1C. Regarding imprisonment, the agreement states:
Id. ¶ 2A (emphasis in original). The parties also indicated that "[t]he attached worksheets represented the stipulation of the parties with respect to all of the sentencing guideline provisions that they believe apply in this case (including any grounds for departure)."
At the sentencing hearing, the Court noted defendant's guideline range of 262 to 327 months' imprisonment and that the midpoint of this range was 294 months. Sentencing Hr'g Tr. at 18. The Court found that a sentence "at the midpoint of your guideline range would be appropriate." Id. at 19. However, in order not to exceed the 18-year (216-month) limit that would have permitted defendant to withdraw his plea, the Court sentenced defendant to 156 months on Count One, 120 months on Count Two (to be served concurrently) and sixty months on Count Three (to be served consecutively), for a total of 216 months. Id. at 19-20. The Court commented that defendant's "record in this matter and the offenses you've committed over the years really would have justified a much more severe sentence." Id. at 23.
In December 2007 and April 2008, defendant filed motions to reduce his sentence based on Amendment 706 to the sentencing guidelines, which reduced the base offense levels applicable to crack cocaine offenses. The Court denied these motions in August 2009, and defendant filed a motion for reconsideration. In October 2009, the Court denied the motion for reconsideration for the following reasons:
Order Den. Def.'s Mot. for Recon. at 3-5 (PageID.119-21) (footnote omitted).
In the instant motion, defendant argues that his sentence should be reduced under the First Step Act because
Def.'s Mot. for Sentence Reduction at 2.
Defendant's motion is denied. Defendant was sentenced as a career offender and this designation would still be applied if defendant were sentenced today. Under USSG § 4B1.1, a defendant is a career offender if (1) he was at least eighteen years old at the time he committed the instant offense, (2) the instant offense is a felony that is a crime of violence or a controlled substance offense, and (3) defendant has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." Defendant meets all three of these criteria. As to the third criterion, defendant had two prior felony controlled substance convictions from 1993 and 1999, as the Court noted at sentencing and as the parties stipulated on Worksheet C that they attached to the plea agreement.
A career offender's offense level is determined by the maximum statutory penalty for the offense for which he is being sentenced. In the present case, defendant was charged in Count One with possession of cocaine with intent to distribute. When the offense involves 28 grams or more of cocaine base, and when the defendant has a prior drug or violent felony conviction, the penalty is up to life imprisonment. See 21 U.S.C. § 841(b)(1)(B). The guidelines assign an offense level of 37 when the statutory maximum is life. In defendant's case, three points were subtracted for acceptance of responsibility, resulting in an offense level of 34. The same guideline provision dictates a criminal history category of VI. This is the calculation that applied, and still applies, in this case, and which resulted in a guideline range of 262 to 327 months' imprisonment.
Defendant argues that his offense level should be measured by the quantity of cocaine base that is alleged in the indictment (5 grams), not the amount to which the parties stipulated in their plea agreement (35 grams). The parties cite conflicting case authority as to which amount controls for First Step Act purposes, but the issue is moot in the present case because defendant's sentence would not be changed even if the lower amount is used.
Moreover, relief under the First Step Act is discretionary, see United States v. Boulding, 379 F.Supp.3d 646 (W.D. Mich. 2019) ("Whether to reduce the sentence of an eligible defendant is left to the sentencing court's discretion. Id. at § 404(c). No reduction is required."), as defendant acknowledges at page 4 of his motion. Even assuming that the current penalties for defendant's drug offense are lower now than when defendant was indicted, the Court would not reduce his sentence. As the Court noted at the sentencing hearing, a 294-month sentence would have been appropriate in light of defendant's criminal history and the seriousness of the gun and drug crimes to which he pled guilty. The Court sentenced defendant to 216 months only because that was the maximum permitted under the plea agreement. The Court stated openly that "a much more severe sentence" was warranted. Under these circumstances, the Court is not inclined to exercise any discretion it may have to reduce defendant's sentence. Accordingly,
IT IS ORDERED that defendant's motion for sentence reduction is denied.
