TIMOTHY S. BLACK, District Judge.
This criminal case is before the Court on Defendant's motion for reduction of sentence (Doc. 348) and supplemental memorandum seeking credit for time served in state custody (Doc. 349), and the Government's response in opposition (Doc. 350). Also before the Court is Defendant's related motion for resentencing. (Doc. 351).
On July 10, 2012, Defendant Brittan Gibson and eight co-defendants were charged by way of superseding indictment with various drug trafficking and firearms offenses.
On December 12, 2013, Defendant appeared before this Court and pled guilty to Counts 15 and 16 of the Superseding Indictment pursuant to a Rule 11(c)(1)(C) plea agreement proposing a sentence of forty-two months as to Count 15 and sixty months as to Count 16, to be served consecutively, for a
The specific terms agreed upon by the parties are set forth in paragraph four of the plea agreement as follows:
(Doc. 219 at 3). Notably, nothing in paragraph four or in the remainder of the plea agreement includes or even alludes to any promise or intent for the federal sentence to run concurrent to Defendant's state court sentence. (See id. 1-7). Moreover, the plea agreement states unequivocally that, "
Indeed, in summarizing the plea agreement, the Government made a particular point of emphasizing the integration clause. (Doc. 338 at 16:10-15). Specifically, the Prosecutor stated as follows:
(Id.) (emphasis added). Additionally, the Court also inquired of both defense counsel and Defendant as to whether there were any other agreements outside the written plea agreement:
(Id. at 16:24-18:12) (emphasis added).
Having affirmed that the plea agreement was complete and accurate in every respect, Defendant withdrew his prior pleas of `not guilty' and entered his pleas of `guilty' to Counts 15 and 16 of the Superseding Indictment, pursuant to the parties' binding plea agreement. (Id. at 17:10-20:10). The Court, having engaged in a thorough Rule 11 colloquy, accepted Defendant's guilty pleas as knowingly, voluntarily, and intelligently made and found Defendant guilty as to Counts 15 and 16. (Id. at 20:4-21:4). The Court deferred acceptance of the proposed binding plea agreement pending review of the Presentence Investigation Report ("PSR") and set the case for a sentencing hearing. (Id. at 21:5-22:12).
Prior to the conclusion of the plea hearing, defense counsel stated his intent to file a written motion for bond. (Id. at 22:20-23:10). In making the oral motion, defense counsel stated that, if the Court were to release Defendant on bond pending sentencing, "[o]bviously [Defendant] would be on home detention and this could impact both the government's offer and the Court's acceptance of the Plea Agreement that we have...." (Id. at 23:4-6). Defense counsel's statement prompted the Court to once again inquire as to whether there were any agreements or understandings between the parties that had not been memorialized in the plea agreement:
(Id. at 23:4-13) (emphasis added).
The case proceeded to sentencing on May 14, 2014. (Doc. 276). Prior to the hearing, the parties filed sentencing memoranda wherein both requested, as to Count 15, that the Court implement the two-point base offense level reduction contemplated under Amendment 782 to the United States Sentencing Guidelines in advance of the amendment's formal adoption.
However, regardless of the two-point offense level reduction, the Government stated in its sentencing memorandum that it still sought imposition of the proposed binding sentence of 42 months for Count 15, which sentence the Government believed remained appropriate in light of the 18 U.S.C. § 3553(a) factors and still reflected a significant downward variance, even from the reduced guideline range. (Doc. 260 at 3-6). Accordingly, the Government requested that the Court accept the 11(c)(1)(C) plea agreement and impose a sentence of 42 months on Count 15 and a consecutive sentence of 60 months on Count 16, for a total of 102 months imprisonment, as initially proposed and agreed upon by the parties. (Id.)
Conversely, Defendant argued in his sentencing memorandum that the proposed binding sentence of 42 months was negotiated utilizing the higher, pre-amendment guidelines as a starting point. (Doc. 275 at 3). Therefore, Defendant posited that, had the new guidelines been in effect (even informally) at the time of their negotiations, the parties would have ultimately agreed upon a lower binding sentence as to Count 15. (Id. at 4). Accordingly, Defendant asked that the Court implement the two-level reduction and, in doing so, also reduce the sentence to be imposed on Count 15 in proportion to the deviation from the guidelines as contemplated by the parties at the time of their negotiations. (Id.) More specifically, Defendant argued that the 42 month sentence ultimately agreed upon for Count 15 was intended to reflect a forty percent reduction from the low end of the pre-amendment guideline range of 70-87 months. (Id.) Based upon the parties' intent to accomplish a forty percent variance, Defendant asked that the Court consider imposing a sentence as to Count 15 that was reflective of the parties' intent, applied to the reduced guideline range of 57-71 months. (Id.)
On the day of sentencing, at the parties' request, the Court conferred with counsel in chambers prior to the hearing to discuss the Amendment 782 two-level reduction as applied to the Rule 11(c)(1)(C) plea agreement in the instant case. (Doc. 339 at 2-9). Ultimately, the parties agreed to modify the binding sentence proposed under the plea agreement, such that, upon acceptance of the agreement, the Court would impose a sentence of 35 months (as opposed to 42 months) on Count 15 and would then, as anticipated, impose a sentence of 60 months on Count 16, to run consecutive, for an aggregate sentence of 95 months. (Id. at 7:23-9:6, 13:4-14:12). Defendant openly recognized that he would not be entitled to further reduction if and when Amendment 782 officially took effect and formally waived any further reduction based on retroactive application of the amendment. (Id. at 7:12-17, 9:11-22, 14:19-15:23).
Following the in-chambers conference, the sentencing hearing proceeded in open court. (Id. at 10-22). The Court confirmed that the parties had received and reviewed the PSR, and that neither party had any objection to the PSR, nor to the Court adopting as its own the findings of fact contained therein. (Id. at 11:12-24, 12:2-17).
In short, with the full agreement and consent of the parties, the binding plea agreement was verbally amended to propose a binding sentence of 35 months imprisonment as to Count 15, and 60 months imprisonment as to Count 16, to be run consecutive, for an aggregate term of 95 months imprisonment. (Id. at 13:22-14:12). The Court accepted the Rule 11(c)(1)(C) plea agreement, as amended, and sentenced Defendant accordingly. (Id. at 20:3-9; Doc. 277 at 3). No procedural or substantive objections were raised by either party.
"The Court may
On August 17, 2015, Defendant filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). (Doc. 348). Subsequently, defense counsel contacted chambers to request a status conference, stating that he wished to clarify the alternative basis upon which Defendant sought reduction of his sentence. (Not. Order, 10/1/2016). Rather than schedule a status conference, the Court ordered defense counsel to file
On March 23, 2016, Defendant filed a motion for resentencing, wherein Defendant essentially offers the Court a procedural mechanism for granting the relief requested in his supplemental memorandum. (Doc. 351).
Defendant first seeks reduction of his sentence pursuant to 18 U.S.C. § 3583(c). (Doc. 348). Specifically, Defendant's § 3582 motion seeks a
As fully stated in Section I(B) of this Order, supra, Defendant received the benefit of his two-point reduction at the time of sentencing, based upon the DOJ's policy of applying the reduction in advance of Amendment 782 being formally adopted or implemented. More significantly, however, Defendant acknowledged and agreed at that time that he would not be entitled to, nor would he seek any further reduction if and when the amendment was adopted. Yet Defendant now seeks that exact relief.
Having previously received the benefit of the two-point offense reduction
As previously stated, Defendant's supplemental memorandum actually seeks modification of Defendant's sentence on grounds entirely distinct from those set forth in the motion for reduction of sentence. Specifically, Defendant seeks "credit for all of the time he served in the Montgomery County jail on this case, including time he was also serving on a state case...." (Doc. 349 at 2). Defendant alleges that receiving credit for time served on his state sentence "was a material part of his plea agreement." (Id.)
Moreover, Defendant claims that "[t]he negotiating point of the Government, which was accepted and believed by [Defendant], was that he had already served approximately two (2) years of the ultimate sentence." (Id.) Further, Defendant alleges that the negotiations "were premised on the idea that he had already served several months in custody," and that "[i]t was never contemplated that [Defendant's] jail time credit would not apply to [his federal] sentence." (Id.)
As an initial matter, and as previously noted, supra, there is
Additionally, as detailed in Section I(A) of this Order, supra, during the Court's
Further, while Defendant alleges that "[i]t was never contemplated that [his] jail time credit would not apply to [his federal] sentence," the issue was actually specifically addressed in three separate paragraphs of the PSR, wherein the Probation Office recommends that this Court impose the federal sentence to run consecutive to Defendant's state court sentence. (PSR ¶ 126; PSR Sent. Rec. at 3 and 4). Notably, Defendant did not object to the PSR in that regard, nor did he even raise the issue in mitigation of sentencing.
Finally, although Defendant fails to specify, the state court sentence for which he seeks credit was imposed in State of Ohio v. Brittan A. Gibson, Montgomery County, Ohio Court of Common Pleas, Case No. 2011 CR 4049.
In sum, receiving credit for time served on his state sentence was not expressly set forth in Defendant's Rule 11(c)(1)(C) plea agreement. Moreover, Defendant not only failed to raise the issue or to request such credit, he in fact denied repeatedly that there were any other agreements, assurances, promises, or understandings that informed his decision to plead guilty other than those contained in the six pages of the Rule 11(c)(1)(C) plea agreement. The Court accepted Defendant's plea, as well as the proposed binding plea agreement as modified to implement the two-level Amendment 782 reduction and to reflect the intent of the parties. Defendant was sentenced according to the binding plea agreement, which agreement he signed and unequivocally affirmed as complete and accurate.
The Court finds absolutely no statutory basis to revisit the issue of Defendant's sentence in this case. See 18 U.S.C. § 3582(c). Additionally, the Court is disinclined to disturb the finality of the imposed sentence and finds no justification under the 18 U.S.C. § 3553(a) factors why giving Defendant a reduction, based upon time he spent in custody for a prior, unrelated state court offense, in any way serves the purposes of sentencing as they relate to the instant federal case.
Based upon the foregoing, Defendant's motion for reduction of sentence (Doc. 348) and supplemental memorandum for reduction of sentence (Doc. 349) are
