THOMAS L. LUDINGTON, District Judge.
On October 25, 2007, an indictment was returned against Defendant Stanley Thomas Brazil followed by a superseding indictment on November 14, 2007. ECF Nos. 3, 41.
On September 23, 2008, a jury found Defendant guilty of both counts of distribution of 50 grams or more of cocaine base. ECF No. 173. The Court subsequently held a sentencing hearing where it determined that Defendant was responsible for 20.1 kilograms of powder cocaine and 12.2 kilograms of cocaine base. ECF No. 257. Defendant's base offense level was 38 with a two-point enhancement due to his leadership role in the offense, bringing his total offense level to 40. His criminal history category was III. Accordingly, his sentencing guideline range was 360 months to life imprisonment. On April 22, 2009, Defendant was sentenced to 380 months in custody on each count (to be served concurrently) to be followed by ten years of supervised release. ECF No. 230 at PageID.982-983.
On August 11, 2017, Defendant's sentence was reduced to 292 months incarceration pursuant to § 3582(c)(2) and Sentencing Guidelines Amendment 750. ECF Nos. 416, 426.
On January 17, 2019, Defendant filed a motion for a sentence reduction pursuant to the First Step Act of 2018 ("1SA") and later filed five briefs supplementing his motion. ECF Nos. 434, 437, 438, 457, 458, 461. On April 16, 2019, Joan Morgan filed an appearance for Defendant Brazil and the next month, filed a supplemental brief supporting Defendant's first motion. ECF Nos. 440, 449. The Government later filed its response. ECF No. 453.
For the following reasons, Defendant's custodial sentence will be reduced from 292 months to 262 months and his term of supervised release will be reduced from 10 years to 8 years.
The Anti-Drug Abuse Act of 1986 established significant penalties for the possession and distribution of crack cocaine. The disparity between the penalties for distributing crack cocaine and powder cocaine was significant: 100-to-1. As the Supreme Court observed, the Act "imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one-hundredth that amount of crack cocaine." Dorsey v. United States, 132 S.Ct. 2321, 2326 (2012).
On August 3, 2010, Congress enacted the Fair Sentencing Act. Pub. L. No. 111-220, 124 Stat. 2372. Among other things, it reduced the statutory minimum sentences for crack cocaine offenses by increasing the quantity of crack cocaine necessary to trigger the statutory minimums—raising the amount from 5 grams to 28 grams for the 5-year minimum sentence, and from 50 grams to 280 grams for the 10-year minimum sentence. See Fair Sentencing Act § (2)(a). It also directed the Sentencing Commission to conform the sentencing guidelines to the new statutory minimums. Id. § (8)(1). The Sentencing Commission then promulgated amendments to the guidelines, reducing the recommended sentencing ranges to levels consistent with the Fair Sentencing Act. See U.S. Sentencing Guidelines Manual App. C Amends. 750, 759 (2011).
On December 21, 2018, Congress passed the First Step Act of 2018 ("1SA"). P.L. 115-391. The law permitted the retroactive application of the Fair Sentencing Act and the associated guideline ranges. Section 404 of the 1SA provides.
P.L. 115-391, Section 404.
18 U.S.C. § 3582 governs the reduction of a criminal sentence and provides that a "court may not modify a term of imprisonment once it has been imposed" except pursuant to specific exceptions. One of these exceptions is contained within 18 U.S.C. § 3582(c)(1)(B) which provides:
18 U.S.C. §3582(c)(1)(B) (emphasis added).
Section 3582(c)(1)(B) is the proper vehicle for implementing the 1SA. As directed in §3582(c)(1)(B), the 1SA "expressly permit[s]" the modification of a term of imprisonment. Moreover, many district courts have concluded that 18 U.S.C. §3582(c)(1)(B) is the proper method to implement the 1SA. See, e.g., United States v. Boulding, 2019 WL 2135494, at *6 (W.D. Mich. May 16, 2019) ("The Court's authority to impose a modified sentence under the FSA is rooted in 18 U.S.C. §3582(c)(1)(B)."); United States v. Potts, 2019 WL 1059837, at *3 (S.D. Fl. Mar. 6, 2019) ("§3582(c) provides the procedural vehicle whereby this Court may modify Defendant's sentence."); United States v. Delaney, 2019 WL 861418, at *1 (W.D. Va. Feb. 22, 2019) ("Modifications of sentences under the FSA are governed by 18 U.S.C. §3582(c)(1)(B) . . ."); United States v. Kamber, 2019 WL 399935, at *2 (S.D. Ill. Jan. 31, 2019) (determining that the FSA "can serve as a basis for relief under §3582(c)(1)(B)").
When modifying a sentence under the 1SA, the factors set forth in 18 U.S.C. §3553(a) will be considered. However, the 1SA differs from sentencing proceedings on appellate remand because the text of the 1SA provides for a reduced sentence, not a new sentence. Though the 1SA does not reference §3553(a), considering the §3553(a) factors is consistent with the law surrounding sentence reductions in other contexts. For example, the Supreme Court in Pepper held that post-conviction behavior could be considered in the context of the §3553(a) factors when a defendant received a new sentence following an appeal. Pepper v. U.S. 562 U.S. 476 (2011). It explained that
Id. at 480 (quoting Williams v. New York, 337 U.S. 241, 246-247 (1949)). Considering additional information in the context of reviewing the §3553(a) criteria is consistent with the overall discretion granted to courts by the 1SA in reducing sentences.
Moreover, other courts have determined that considering the §3553(a) factors to be appropriate when ruling upon a FSA sentence reduction. See e.g. United States v. Boulding, 2019 WL 2135494, at *6 (W.D. Mich. May 16, 2019); United States v. Delaney, 2019 WL 861418, at *1 (W.D. Va. Feb. 22, 2019). Furthermore, the United States Sentencing Commission has explained that the FSA "made no changes to 18 U.S.C. 3553(a), so the courts should consider the guidelines and policy statements, along with the other 3553(a) factors, during the resentencing."
In reviewing motions brought pursuant to the 1SA, two questions must be asked. First, an initial determination must be made about whether the petitioner is eligible for a sentence reduction. In order to be eligible, the petitioner must have been sentenced prior to August 3, 2010 (the date of the enactment of the Fair Sentencing Act) for a "covered offense" as defined in the 1SA. The petitioner's circumstance must also not implicate one of the 1SA's limitations found in Section 404(c). This initial step is categorical and focused solely on the petitioner's offense of conviction. If the petitioner meets this criteria, the Court moves to the second question. The petitioner's initial guideline range must be compared to the petitioner's new guideline range as modified by the Fair Sentencing Act. The §3553 factors must be reviewed as well as any other relevant information to determine whether the petitioner should receive a sentencing reduction.
Defendant satisfies the initial eligibility test because he was sentenced in 2009 for a "covered offense" under the 1SA, specifically two counts of distribution of 50 grams or more of cocaine base. Under the second step of the test, the Court must consider whether he is entitled to a sentence reduction.
Defendant has four prior criminal convictions beginning at age 17, including one count of possession of cocaine. Defendant is now 43 years old. He has three children ages 24, 21, and 18. He was in arrears $542.06 on child support as of his date of sentence. At the time of his arrest, Defendant tested positive for cocaine, opiates, and marijuana. His highest reported education is a high school diploma. He has never held formal employment.
Defendant's case presents two issues. First whether Section 401 of the 1SA applies retroactively to reduce penalty enhancements. Second, whether for sentencing purposes, Defendant is responsible for only the quantity determined by the jury at trial rather than the quantity determined by the Court at sentencing. Each matter will be addressed in turn.
In 1998, Defendant was convicted in state court of possession of less than 25 grams of cocaine. He was sentenced to two years of probation and $690.00 in fines and fees. In the current case, the Government filed a Penalty Enhancement Information pursuant to 21 U.S.C. § 851, which provides:
21 U.S.C. § 851.
The Government filed its Penalty Enhancement Information on February 5, 2008, seven months before the commencement of Defendant's trial. It provided:
ECF No. 73. It was accompanied by a certificate of service.
At the time of Defendant's original sentencing, his state court conviction qualified as a "felony drug offense." 21 U.S.C. § 802 defined a felony drug offense as:
21 U.S.C. § 802(44) (2009). Because the state court conviction qualified as a felony drug offense, Defendant's statutory term of imprisonment was a minimum of 20 years. ECF No. 245.
However, if Defendant were to be sentenced today, his prior drug conviction would not qualify as an enhancement. Pursuant to the 1SA, a "felony drug offense" is no longer a predicate for enhancement under 21 U.S.C. § 841(b)(1)(B). Instead, only a "serious drug felony" or "serious violent felony" may serve as enhancements under § 841(b)(1)(B). The 1SA defines a "serious drug felony" as:
[A]n offense described in section 924(e)(2) of Title 18 for which—
21 U.S.C. § 802(57). Defendant's prior state court sentence was only a term of probation, not "a term of imprisonment of more than 12 months." 21 U.S.C. § 802(57). Accordingly, he would not receive the enhancement under § 841(b)(1)(B) because the prior conviction did not qualify as a serious drug offense.
Regardless, Defendant is not entitled to a sentence reduction on this basis because the applicable section of the 1SA, Section 401, is not retroactive. It provides:
P.L. 115-391, Section 401. The 1SA was enacted after Defendant committed his offense and after his sentence was imposed. Accordingly, the 1SA's new definition for "serious drug felony" does not apply retroactively to Defendant.
Declining to grant this provision retroactively is rational when viewed in the context of other provisions of the 1SA. For example, Section 404 of the 1SA specifically addresses the retroactivity of Section 404 by explaining that a court may "impose a reduced 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. (citation omitted). By granting retroactivity to Section 404, but declining to do so to the same extent to Section 401, indicates that Congress's election to not include a broader retroactive provision in Section 401 was intentional and not accidental.
Such a view is also shared by other courts, including the Sixth Circuit, which held that "the First Step Act is largely forward-looking and not retroactive, applying only where `a sentence for the offense has not been imposed as of [the] date of enactment.'" U.S. v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019) (quoting First Step Act of 2018, Pub. L. No. 115-391, §401(c), 132 Stat. 5194, 5221 (2018)). See also U.S. v. Wilson 2019 WL 4547061, at *1 (E.D. Mich. Sep. 19, 2019) ("§ 401 of the First Step Act . . . is not retroactive."); U.S. v. Norman, 2019 WL 3296830, at *5 n.7 (W.D. Mich. July 23, 2019) ("The most natural reading of Section 401 of the First Step Act . . . is that it is not retroactive."); U.S. v. Travis C. Davis, 2020 WL 355895, at *2 (W.D. La. Jan. 17, 2020) ("[T]he provision of the First Step Act modifying the requirements triggering an enhanced penalty do not appear to apply retroactively."); Davis v. U.S. 2019 WL 7282499, at *8 (D. Me. Dec. 27, 2019) ("Congress did not make Section 401 apply retroactively, so it does not apply to defendants like Petitioner, who were sentenced before December 21, 2018.").
Defendant argues that under the 1SA, he is responsible only for the quantity determined by the jury at trial rather than the quantity determined by the Court at his initial sentencing. At the time of Defendant's initial sentencing, the United States Probation Office prepared a Presentencing Investigation Report. It recommended that Defendant be found responsible for a total of 14.201 kilograms of powder cocaine and 13.312 kilograms of cocaine base. Defendant filed a memorandum challenging the quantities presented in the Presentencing Investigation Report, arguing that he should only be held responsible for the 128.12 grams that the jury convicted him of. The Government recommended holding Defendant responsible for a total of 14.201 kilograms of powder cocaine and 13.312 kilograms of cocaine base. The Court ultimately determined that Defendant was responsible for 20.1 kilograms of powder cocaine and 12.2 kilograms of crack cocaine and sentenced him to 360 months.
Defendant appealed his sentence to the Sixth Circuit, claiming that the Court's finding of 20.1 kilograms of powder cocaine and 12.2 kilograms of crack cocaine violated his Sixth Amendment rights because the jury only convicted him for two counts of 50 grams of cocaine base. The Sixth Circuit affirmed the Court's sentencing. Its opinion provides:
ECF No. 257.
Defendant makes a similar argument here, again quoting Aprendi. He reasons that his guideline range should be determined based on the 128.12 grams of cocaine base that the jury convicted him of. The Sixth Circuit has expressly rejected this argument. The 1SA has not changed the nature of the question because the 1SA does not eliminate the Court's authority to determine quantity when deciding a sentence.
Pursuant to Section 3553(a)(3), a Court must consider the statutory minimum and maximum penalties in reaching a sentencing decision. See United States v. McCloud, 730 F.3d 600, 610 (6th Cir. 2013) (explaining that consideration of "the kinds of sentences available" under 3553(a)(3) "necessarily includes the statutory minimum and maximum ranges."). Thus, the Court was required to consider the statutory minimum when imposing the initial sentence. That minimum has now changed. At the time of Defendant's original sentencing, the mandatory minimum sentence for his offense was 20 years to life. However, under the Fair Sentencing Act, his mandatory minimum sentence is now 10 years to life.
Due to Defendant's decreased mandatory minimum sentence, the Court concludes that a reduction is warranted. Defendant's term of imprisonment will be reduced from 292 months to 262 months, and his term of supervised release will be reduced from 10 years to 8 years.
Accordingly, it is
It is further
It is further
The Court will enter a form order entitled "Order Regarding Motion for Sentence Reduction Under the First Step Act of 2018" consistent with this order.