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United States v. Dodd

United States District Court, S.D. Iowa

April 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY TIMOTHY DODD, Defendant.

          ORDER REDUCING SENTENCE

          ROBERT W. PRATT, JUDGE

         Before the Court is Defendant Anthony Timothy Dodd's Motion to Reduce Sentence under the First Step Act of 2018, filed March 15, 2019. ECF No. 763. The Government filed its resistance on March 22, 2019, ECF No. 767, and Defendant filed his Reply on April 5. ECF No. 773. The case is fully submitted.

         I. BACKGROUND

         Defendant pleaded guilty to one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, on August 19, 2003. See ECF No. 127. On May 25, 2006, the Court sentenced him to life in prison. See ECF No. 494. On December 19, 2016, then-President Obama commuted Defendant's sentence to a term of 240 months, “leaving intact and in effect . . . the term of supervised release imposed by the court with all its conditions and all other components of each respective sentence.” ECF No. 723.

         At his original sentencing, Defendant was held accountable for at least 1.5 kilograms of crack cocaine. See ECF No. 495 (adopting PSR); ECF No. 506 ¶ 60. At that time his base offense level was 38 and, after a two-level enhancement for a dangerous weapon and a three-level reduction for acceptance of responsibility, his final offense level was 37. ECF No. 506 ¶¶ 61, 67. He had a criminal history category of V, and his advisory guideline range was 324- 405 months. Id. ¶ 82; ECF No. 495. His mandatory minimum sentence was life in prison, as a result of two prior qualifying felonies under 21 U.S.C. § 851. See 21 U.S.C. § 841(b)(1)(A).

         II. ANALYSIS

         The First Step Act of 2018 was enacted on December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194. Section 404 of the First Step Act provides that the court may “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.” Id. § 404(b); see also 18 U.S.C. § 3582(c)(1)(B). The First Step Act defines a “covered offense” as “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.” Id. § 404(a). Section 2 of the Fair Sentencing Act modified the statutory penalties for certain violations of the Controlled Substances Act, 21 U.S.C. § 841(b)(1), effectively reducing the penalty applicable to Defendant's offense of conviction. Pub. L. No. 111-220, sec. 2, § 401(b)(1), 124 Stat. 2372 (2010).

         At the time of his sentencing in 2006, Defendant's quantity of conviction was fifty grams of crack cocaine, which triggered a statutory mandatory minimum sentence of ten years. See 21 U.S.C. § 841(b)(1)(A)(iii) (2006). Because Defendant had two qualifying prior felonies under 21 U.S.C. § 851, his mandatory minimum was increased to life in prison. See 21 U.S.C. § 841(b)(1)(A). Section 2 of the Fair Sentencing Act increased the amount of cocaine base required to trigger a mandatory minimum of ten years from fifty grams to 280 grams. Sec. 2(a)(1), 124 Stat. at 2372; see 21 U.S.C. § 841(b)(1)(A)-(B) (2012). Applying the Fair Sentencing Act retroactively to Defendant, as directed by section 404 of the First Step Act, fifty grams of cocaine base is greater than twenty-eight grams but less than 280 grams, for a mandatory minimum sentence of five years with a mandatory four-year term of supervised release. See 21 U.S.C. § 841(b)(1)(B). Because he has a qualifying prior felony under 21 U.S.C. § 851, his mandatory minimum is increased to ten years, and his term of supervised release is increased to eight years.[1] Id. In other words, applying the First Step Act reduces Defendant's mandatory minimum sentence from life in prison to ten years.

         Defendant's Sentencing Guidelines range has also changed. Under today's guidelines a quantity of 1.5 kilograms of crack cocaine results in a base offense level of 32. U.S.S.G. § 4B1.1(b)(1). After a two-level enhancement for possession of a weapon and a three-level reduction for acceptance of responsibility, his final offense level is now 31. When combined with his criminal history category of V, Defendant's Guidelines range is now 168-210 months.

         The Government in its resistance makes two arguments why Defendant is nonetheless not eligible for a sentence reduction under the First Step Act. First, that Supreme Court caselaw as articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99, 108 (2013), is not retroactive and therefore Defendant-who at sentencing was found responsible for at least 1.5 kilograms of crack cocaine by a preponderance of the evidence-is subject to the enhanced mandatory minimum regardless of the drug quantities he pleaded guilty to. See ECF No. 767 at 4. The First Step Act, however, applies to offenses and not conduct. See United States v. Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019). Defendant's offense was conspiracy to distribute and possess with intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(A) (2006) as it then existed. See ECF No. 131. It is that offense that was affected by the Fair Sentencing Act, and that offense with which the First Step Act is concerned.

         Further, this argument rests on a misplaced equivalency with sentence reductions under 18 U.S.C. § 3582(c)(2), a narrow avenue limited by the U.S. Sentencing Commission through 28 U.S.C. §§ 994(o) and 994(u) and U.S. Sentencing Guidelines § 1B1.10. Such a reduction does not “impose a new sentence in the usual sense.” Dillon v. United States, 560 U.S. 817, 827 (2010). In contrast, section 404(b) of the First Step Act contains a broader grant of authority to “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010” were in effect.[2] Both Apprendi and Alleyne are binding on this Court for sentencings held today. That these procedural rules do not trigger a right to relief retroactively on collateral review, see Walker v. United States, 810 F.3d 568, 574-75 (8th Cir. 2016), is distinct from whether they apply to proceedings independently authorized under the First Step Act.

         Second, the Government argues that because Defendant's sentence was commuted by the President in 2016, Defendant no longer qualifies for relief within the meaning of the First Step Act. ECF No. 767 at 4-5. Although the Court is sensitive to the breadth of the Executive's clemency power, it is not infringed here. The executive clemency warrant specifically states that it commutes “the total sentence of imprisonment” but leaves “intact and in effect for each named person the term of supervised release imposed by the court with all its conditions and all other components of each respective sentence.” ECF No. 723 (emphasis added). In other words, the commutation changed the length of the term of imprisonment imposed but did not otherwise alter either the sentence or the crime of conviction. Defendant's offense of conviction remains a “covered offense”-a violation of the federal criminal law modified by the Fair Sentencing Act of 2010 committed before August 3, 2010-and this Court remains the “court that imposed a sentence for [the] covered offense” that is authorized to impose a new sentence under section 404 of the First Step Act. As a change in the sentence under the First Step Act does not purport to modify the commuted term of Defendant's sentence, or modify a condition added by the executive clemency warrant, the existence of a grant of clemency does not foreclose relief under the First Step Act. See Biddle v. Perovich, 274 U.S. 480 (1927) (“No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively, on the one side, and, on the other, would leave the reduced term or fine valid and to be enforced.”). Nor is the commutation “the overturning of judgment of conviction by some other tribunal” but “[a]n executive action that mitigates or sets aside punishment for a crime.” Nixon v. United States, 506 U.S. 224, 232 (1993) (citing Black's Law Dictionary 1113 (6th ed. 1990)). In other words, the commutation “shortened an existing sentence, ” it “did not impose a new sentence” that would place it outside the reach of the First Step Act. United States v. Stilling, No. 8:08-cr-230-SCB-SPF, slip op. at 3 (M.D. Fla. Mar. 15, 2019); see also United States v. Walker, No. 1:94-CR-5, 2019 WL 1226856, at *2 (N.D. Ohio Mar. 15, 2019) (“[T]he Court finds that the First Step Act's relief applies to defendants with presidential commutations.”). Further, Defendant's sentence has not previously been reduced by the Fair Sentencing Act nor has he previously filed a motion for reduction of his sentence pursuant to the First Step Act, satisfying section 404(c) of the First Step Act. See Walker, 2019 WL 1226856, at *1.

         The Government relies on the concurring opinion in United States v. Surratt, 855 F.3d 218, 219-20 (4th Cir. 2017), and the Fourth Circuit's subsequent decision in Blount v. Clarke, 890 F.3d 456, 462-63 (4th Cir. 2018), for the proposition that the clemency warrant prevents the Court from otherwise modifying the sentence in any way. In Surratt, the Fourth Circuit found moot a challenge to the petitioner's mandatory life sentence after the President commuted his sentence to 200 months during his appeal.[3] See 855 F.3d at 219. The same pattern followed in Blount, where the propriety of a life sentence following Graham v. Florida, 560 U.S. 48 (2010), was determined to be moot after the sentence was commuted to forty years. 890 F.3d at 456-57. The Government also cites to Schick v. Reed, 419 U.S. 256, 267 (1974). There the Supreme Court explained that relief based on Furman v. Georgia, 408 U.S. 238 (1972), which temporarily prohibited the death penalty, was not available to a defendant who had initially been sentenced to death but whose sentence had been commuted to life in prison by the time Furman was decided. 419 U.S. at 266.

         These three cases stand for the proposition that the commutation of a sentence moots a legal challenge to the unlawfulness of the prior sentence when the commutation cures the alleged unlawful defect in that sentence. But Defendant does not seek relief based on a prior version of his sentence. Instead, he seeks relief under the First Step Act for a sentence consistent with “sections 2 and 3 of the Fair Sentencing Act of 2010.” He is eligible for relief even after his commutation, and his case is not moot. Nothing about the nature of the commutation prevents this Court's action when the commutation does not moot the legal issue. See Walker, 2019 WL 1226856, at *2 (explaining ...


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