Joan H. Lefkow, U.S. District Judge.
Albert Span was convicted by a jury in November 2004 of several crimes arising from his involvement in drug trafficking and subsequent threats he made to witnesses prior to trial.
Most significantly for present purposes, Span's counts of conviction included participating in a conspiracy to distribute and possess with intent to distribute more than 50 grams of mixtures containing crack cocaine.
Span was part of a drug ring that operated in the St. Stephens apartment complex on the west side of Chicago. (Dkt. 294 at 1.) Span was recruited to the ring by Richard Epps, an old friend who was the leader of the operation. (Id.; dkt. 258 at 91.) Span's principal job was to supply the heroin the ring sold. (Dkt. 294 at 1; dkt. 258 at 91-93.) Two other men, Donnie Allison and LaShon Stuckey, were recruited to be the principal distributors of heroin and crack, respectively. (Dkt. 294 at 1.)
The evidence against Span included recordings of phone calls the government intercepted through a wiretap active on Epps's phone between November 7 and December 6, 2001. (Dkt. 258 at 18, 38-39; see also dkts. 373-74.) Epps and Allison also cooperated with the government after their arrests and testified at Span's trial. (Dkts. 258, 228, 228-1, 234.)
The evidence showed that in fall 2001, Epps decided to open a heroin and crack selling operation at the St. Stephens complex. (Gov't Memo at 5; dkt. 258 at 89.) Epps recruited Allison, Stuckey, and their associates to conduct the street level deals. (Id.; dkt. 258 at 89-91.) Epps introduced Allison to Span so that Allison could obtain the heroin to sell from him. (Id.; dkt. 258 at 91.)
In November 2001 Epps also obtained a kilogram of cocaine powder from a man named Tommy Parra that he intended to convert into crack for street-level sale. (Dkt. 258 at 104-05; dkt. 228 at 168; dkt. 228-1 at 294-95.)
The government introduced a recording of a November 22 phone call between Epps and Span in which Span asked about the status of the cocaine powder (Epps testified they had discussed the cocaine powder prior to the phone call) and Epps responded that it was "garbage." (Dkt. 228 at 61-62, dkt. 373 at 121-125.)
In closing argument the government told the jury it should find Span responsible for conspiring to distribute more than 50 grams of crack, as charged, because the conspirators intended to "cook [the powder] up and sell parts of it ... two and a quarter ounces, which is sixty something grams ..." (Dkt. 228-3 at 38, 24.) The jury did so, convicting Span of all charges. (Dkt. 190.)
At the time Span was convicted, the Supreme Court had granted certiorari on United States v. Booker, 542 U.S. 956, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and Booker's pendency created uncertainty as to whether factual findings necessary to a Guidelines calculation needed to be made by a jury beyond a reasonable doubt. (See dkt. 294 at 4.) The court and parties thus agreed to submit several sentencing factors to the jury after it returned a guilty verdict. (Id.) The jury then found the following with respect to the counts listed below:
(Dkts. 195, 196, 197.)
The probation office prepared a Presentence Investigation Report ("PSR") that calculated Span's Guidelines range as life in prison. (Dkt. 423-1 at 18.) The predominant factor in Span's Guidelines calculation was the quantity of drugs for which he was responsible under U.S.S.G. § 1B1.3, which generally provides that all members of a conspiracy are responsible for any reasonably foreseeable acts of a conspirator in furtherance of the conspiracy. The PSR based its Guidelines calculation on findings that Span was responsible for 1 kilogram of crack, 500 grams of cocaine (separate from the crack), and 90 grams of heroin. (Dkt. 423-1 at 9.)
The PSR states that Span should be held responsible for 1 kilogram of crack because that was "the amount of cocaine Span purchased from Parra, and was to cook into cocaine base."
The PSR's drug quantity findings as to cocaine powder and heroin differed from the government's recommendations. (Dkt. 423-1 at 38-39.) The government recommended holding Span responsible for 80 grams of heroin rather than 90 grams and did not recommend finding him responsible for any amount of cocaine apart from the crack. (Id.)
The PSR's drug quantity findings resulted in a base offense level of 36 under the Guidelines.
Span had one prior felony conviction for possession with intent to distribute cocaine, which resulted in a criminal history category of III. (Id. at 13.) Based on an offense level of 44 and a criminal history category of III, Span's Guidelines range was life. (Id. at 18.) The court imposed that sentence. (Dkt. 259.)
Span appealed his conviction and sentence. (Dkts. 253, 294.) The court appointed an attorney to represent him in the appeal, but that attorney moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could not discern a nonfrivolous issue for appeal. (Dkt. 294 at 2.) The Court of Appeals addressed the potential issues identified by counsel's Anders brief, including challenges to Span's sentence, and affirmed. United States v. Span, No. 05-3171, 2006 WL 2008502 (7th Cir. July 14, 2006); (see dkt. 294).
Span subsequently filed a pro se motion for relief under 28 U.S.C. § 2255, which this court denied. Span v. United States, No. 07-cv-2543, dkt. 43, 2010 WL 3034240 (Aug. 3, 2010). The Court of Appeals declined to certify an appeal. No. 11-1066 (7th Cir. July 22, 2011).
In October 2013, Span moved for a reduced sentence pursuant to Amendment 750 to the Guidelines, which reduced the offense levels attributed to various quantities of crack consistent with changes made to crack-related mandatory minimums by the Fair Sentencing Act. (Dkt. 358); see generally Dorsey v. United States, 567 U.S. 260, 269-70, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Span's motion assumed that he was responsible for the drug quantities listed in his PSR: 1 kilogram of crack, 500 grams of cocaine powder, and 90 grams of heroin. (Dkt. 358 at 8.) Using those drug quantities, Span argued that his amended Guidelines range
In May 2018, Span filed a pro se motion for leave to file a successive collateral attack in the Court of Appeals, which the court denied. No. 18-2071 (7th Cir. May 21, 2018.)
Span now moves for a reduced sentence seeking relief under the First Step Act and under Amendments 782 and 790 to the Guidelines, which were promulgated after his last resentencing.
As alluded to above, Congress passed the Fair Sentencing Act in 2010 to mitigate the historical disparity in the treatment of crack and powder cocaine offenses. Dorsey, 567 U.S. at 263, 132 S.Ct. 2321; Pub. L. 111-220, 124 Stat. 2372. Part of that disparity had been a regime of mandatory-minimum sentences that "imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine." Id. The Fair Sentencing Act reduced the crack-to-powder disparity in mandatory minimums from a 100-to-1 ratio to 18-to-1. Id.; 124 Stat. 2372, § 2. The Act also authorized the Sentencing Commission to promulgate "conforming amendments" to the Guidelines to "achieve consistency" with the new statutory penalties. Id. § 8. The Commission did so through an emergency amendment later made permanent through Amendment 750, which it determined should be applied retroactively. U.S.S.G. Amdt. 750; Dorsey, 567 U.S. at 270, 132 S.Ct. 2321.
The changes the Fair Sentencing Act made to crack-based mandatory minimums were not retroactive, and thus Amendment 750 only provided relief to defendants sentenced before that Act's passage if their amended Guidelines range was above their pre-Act mandatory minimum. United States v. Robinson, 697 F.3d 443, 445 (7th Cir. 2012). As Span acknowledges, he was one of the defendants who fell into that category and thus was able to obtain relief pursuant to Amendment 750. (Dkt. 400 at 5; dkt. 366.)
In 2018, Congress passed the First Step Act, which made the Fair Sentencing Act's changes to crack-related mandatory minimums retroactive. Pub. L. 115-391, 132 Stat. 5194, § 404 (2018). Specifically, the First Step Act provides: "A court that imposed a sentence for a covered offense may ... impose a sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010... were in effect at the time the covered offense was committed." Id. § 404(b). A "covered offense" is defined as "a violation of a Federal criminal statute, the statutory penalties for which were modified by [the Fair Sentencing Act.]" Id. § 404(a). Relief under the First Step Act is not available, however, to a defendant whose sentence was "previously imposed or previously reduced in accordance with the amendments
Span argues that he is entitled to relief under the First Step Act despite the fact that he previously obtained relief under the Fair Sentencing Act, essentially arguing that the First Step Act authorizes a plenary resentencing proceeding for any defendant convicted of a "covered offense." (See dkt. 400 at 6.) Somewhat more narrowly, Span argues that his prior resentencing was not fully "in accordance with" the Fair Sentencing Act because it did not take into account Amendments 782 and 790, which he argues were promulgated in furtherance of that Act. (Id. at 7.) The government responds that Span is not permitted further relief because his prior resentencing was fully in accordance with the Fair Sentencing Act. (Dkt. 405.)
While at first blush the government's position appears obviously correct, a close reading of the statute reveals some ambiguity as to what it means for a sentence to have been "previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act." 132 Stat. 5194 § 404(c). Section 2 of the Fair Sentencing Act modified the amounts of crack necessary to trigger certain mandatory minimum sentences. Pub. L. 111-220 § 2. Section 3 eliminated mandatory minimums for simple crack possession. Id. § 3. Neither section, however, granted courts authority to reduce a previously-imposed sentence.
Courts addressing this issue appear uniformly to have held that defendants whose sentences were reduced pursuant to Amendment 750 have been resentenced "in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010." United States v. Curb, No. 06 CR 324-31, 2019 WL 2017184, at *5 (N.D. Ill. May 7, 2019); United States v. Holmes, No. CR 02-24, 2019 WL 3859577, at *7 (D.D.C. Aug. 17, 2019); United States v. Garrett, No. 11-CR-40004-JPG, 2019 WL 1377021, at *2 (S.D. Ill. Mar. 27, 2019); United States v. Martin, No. 1:05CR21, 2019 WL 3268835, at *2 (N.D. W. Va. July 19, 2019). This interpretation of the statute is the only one that makes sense—without it, no defendant could be said to have been resentenced "in accordance with" the Act. See Curb, 2019 WL at *4 ("The only way any sentence has ever been reduced `in accordance with' the FSA is by means of the conforming amendments to the guidelines") (cleaned up). Span cites no case to the contrary. The court thus agrees with the cases cited above that a defendant was resentenced "in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act" if he was resentenced in accordance with Amendment 750.
Span concedes that he was resentenced in accordance with Amendment 750. (Dkt. 400 at 5.) He argues, however, that his resentencing was not fully "in accordance with" the Fair Sentencing Act because it did not take into account all amendments to the Guidelines promulgated pursuant to
Span is incorrect that Amendments 782 and 790 were promulgated pursuant to the Fair Sentencing Act. That Act instructed the Sentencing Commission to make its conforming amendments to the Guidelines not later than 90 days after the Act took effect. 124 Stat. 2372, § 8(a); Dorsey, 567 U.S. at 269-70, 132 S.Ct. 2321. The Commission did so in promulgating emergency amendments that were later made permanent via Amendment 750. Dorsey, 567 U.S. at 270, 132 S.Ct. 2321. Amendments 782 and 790 were promulgated well after 90 days past the effective date of the Act and are unrelated to the emergency amendments the Sentencing Commission promulgated. Rather, Amendment 782 reduced by two levels the base offense levels for a large group of drug offenses—not merely crack offenses—and the Commission's stated reason for adopting the amendment was that it no longer viewed the higher penalties as necessary to achieve penological goals. U.S.S.G. Amdt. 782; see also Hughes v. United States, ___ U.S. ___, ___, 138 S.Ct. 1765, 1774, 201 L.Ed.2d 72 (2018); United States v. Powers, No. 1:09-CR-211-7, 412 F.Supp.3d 740, 749 (W.D. Mich. 2019) ("Amendment 782 was unrelated to the Fair Sentencing Act"). Amendment 790 was implemented to clarify what conduct was relevant to sentencing determinations in offenses involving multiple participants, and the Commission stated that the clarification was "not intended as a substantive change in policy." U.S.S.G. Amdt. 790.
In sum, Span's prior resentencing was fully in accordance with the Fair Sentencing Act, and he is entitled to no further relief under the First Step Act.
Span also argues that—setting aside the First Step Act—he is entitled to relief pursuant to Amendment 782 under 18 U.S.C. § 3582(c)(2), which permits a court to reduce a sentence if it was based on a Guidelines range that subsequently was lowered by a retroactive Guidelines amendment. See Ebbole v. United States, 8 F.3d 530, 539 (7th Cir. 1993); U.S.S.G. § 1B1.10(a)(2). As discussed above, Amendment 782 is retroactive and thus affords Span a potential avenue of relief under § 3582(c)(2).
The Supreme Court has instructed that proceedings under § 3582(c)(2) are limited in "scope and purpose" and that the statute was "intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Dillon v. United States, 560 U.S. 817, 826-27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Accordingly, motions under § 3582(c)(2) are to be addressed through a two-step process. Id. In the first step, the court must determine whether a
If a defendant is eligible for a new sentence within those restrictions, the court may proceed to determine, in its discretion, whether a new sentence is warranted upon consideration of the factors listed in 18 U.S.C. § 3553(a). Dillon, 560 U.S. at 827, 130 S.Ct. 2683. The court's consideration of the § 3553(a) factors may not "serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings." Id.
The government argues that even taking Amendment 782 into account, Span's amended Guidelines range is no different than it was at the time the court resentenced him under Amendment 750: 360 months to life. (Dkt. 405 at 20.) The government's calculation proceeds from the premise that at Span's original sentencing the court "adopted the probation officer's findings as to drug quantity and additional aggravating factors." (Id. at 3, 20.) That is inaccurate, however.
As discussed above, the PSR found Span responsible for 1 kilogram of crack, 500 grams of cocaine powder, and 90 grams of heroin. (Dkt. 423-1 at 9.) Span objected to the PSR's finding of 1 kilogram of crack, arguing that he should not be held responsible for any amount of crack under the reasonable-foreseeability test. (Dkt. 248 at 1-2 ("[Defendant's] only knowledge was Epps telling defendant that Parra sold Epps some bad cocaine").) The government's response did not address Span's responsibility for a specific amount of crack but, rather, argued that the jury had made findings as to Span's responsibility for crack and that it would be "inappropriate for the judge to reexamine ... a factual issue the jury has resolved in the prosecutor's favor beyond a reasonable doubt." (Dkt. 251 at 3-5 (quoting United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005)).)
The court adopted the government's position, stating "the Court finds that the decision was made by the defendant to have the jury determine the drug amounts for which he was responsible. The jury in a separate deliberation made the determination beyond a reasonable doubt as to what drug amounts were attributable to the defendant... This determination by the jury will not be second guessed by the Court." (Dkt. 268-1 at 6.) Later in the hearing, the court summed up its conclusions with respect to the PSR as follows: "Based upon the court's review of the presentence investigation report, the Court does believe that the report is accurate in its determinations of the offense level and the criminal history level." (Id. at 8.) At no point in the hearing was there a discussion of the quantity of drugs Span was responsible for.
The court believes that its comments at sentencing are best interpreted as meaning what it said: that it adopted the drug
The jury's finding that Span was responsible for more than 500 grams but less than 1.5 kilograms of crack compelled the conclusion that Span's base offense level was 36. See U.S.S.G § 2D1.1 (2004). The government was correct that the court could not find a crack quantity outside that range. Rivera, 411 F.3d at 866-67. And no plausible amount of crack within that range would have resulted in a different offense level.
While the Seventh Circuit has interpreted statements somewhat similar to those made by the court here in adopting the PSR as adopting specific findings within a PSR, those cases are distinguishable. Davis, 682 F.3d at 610-20; United States v. Heckel, 570 F.3d 791, 795-97 (7th Cir. 2009); United States v. Hall, 600 F.3d 872, 877 (7th Cir. 2010). The opinions in those cases all relied on a determination that the PSR in question was accurate or that the defendant's objections to drug quantity findings were immaterial. Davis, 682 F.3d at 617 (defendant "has proffered no evidence in the § 3582(c)(2) proceeding to call into question the facts contained in the PSR"); Heckel, 570 F.3d at 795-97 (defendant presented no "hard evidence" demonstrating PSR's determination of criminal history category was inaccurate); Hall, 600 F.3d at 877 ("Even if we were inclined to agree [that] the court never entered an explicit 17.1-kilogram finding at the original sentencing," the court appropriately did so in appealed-from § 3582(c)(2) ruling).
Here, the PSR is not a reliable basis for imposing sentence. As discussed above, the PSR concluded that Span was responsible for 1 kilogram of cocaine base. (Dkt. 423-1 at 9.) The evidence it relied on in reaching that quantity was Epps's testimony that he was "fronted" a kilogram of cocaine powder and attempted to cook it into crack. (PSR at 7, 9.) The PSR attributed this entire kilogram of cocaine powder to Span
The Seventh Circuit has instructed that assuming a 1:1 powder-to-crack conversion ratio is a "serious error."
Although far less significant to Span's Guidelines calculation than his responsibility for crack, the PSR's finding that Span was responsible for 500 grams of cocaine powder is also clearly erroneous. While the jury found that Span conspired to distribute more than 500 grams of cocaine at the guilt phase of the trial, that finding related to the same cocaine powder that Epps purchased from Parra and that Span already was being held responsible for as cocaine base.
Under these circumstances, the court concludes that the PSR's drug quantity findings as to both crack and powder cocaine were errors, underscoring the court's view that it did not adopt them in determining Span's offense level at sentencing.
Even if the court were to interpret its statements at sentencing as adopting the PSR's drug quantity findings, the court is persuaded that such generically-adopted findings should not be binding here. While the Seventh Circuit has not spoken directly on this issue, the Ninth Circuit has held that "without an explicit and specific drug quantity finding by the original sentencing judge, drug quantities in an adopted PSR are not binding in § 3582(c)(2) proceedings."
Because the court concludes it made no specific finding as to drug quantity at sentencing, it is obligated to make such a finding now. Davis, 682 F.3d at 615; see also Hall, 582 F.3d at 819; Buffington, 2017 WL 1344533, at *3. Accordingly, the parties are ordered to submit briefs as to the appropriate drug quantities for which Span was responsible under § 1B1.3. The parties are reminded that the court may not make findings that are "inconsistent with the district court's findings at the original sentencing hearing." Davis, 682 F.3d at 615. Thus, any recommendations as to crack quantity must be within the range of 500 grams and 1.5 kilograms found by the jury. The parties are directed to devote their primary attention to the existing record.
In accordance with its obligations under the first step of the Dillon inquiry, the court observes that a finding as low as 500 grams would result in a lower Guidelines range pursuant to Amendment 782, thus making Span eligible for a reduction in his sentence.
Span's motion is denied insofar as it seeks relief under the First Step Act. The motion is continued insofar as it seeks relief under Amendment 782 to the Sentencing Guidelines. The government is ordered to file by 2/28/2020 a position statement as to the drug quantities Span is responsible for under U.S.S.G. § 1B1.3. Span is ordered to file a response by 3/14/2020. The probation office is instructed to prepare by 4/1/2020 a presentence investigation report addressing the factors set forth in 18 U.S.C. § 3553(a) to the extent they are not covered by prior reports, particularly Span's conduct in prison since his last resentencing.
