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United States v. Johnson

United States District Court, N.D. Iowa, Western Division

August 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NYLES EARLMONDO JOHNSON, Defendant.

          MEMORANDUM OPINION AND ORDER

          Leonard T. Strand, Chief Judge.

         This case is before me pursuant to defendant's motion (Doc. No. 96) to reduce sentence pursuant to the First Step Act. The Government resists. Doc. No. 100.

         I. BACKGROUND

         The FSA became law on December 21, 2018, and, relevant to this case, made the “Fair Sentencing Act of 2010” retroactive. Section 404 of the FSA provides 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. § 404(b); see also 18 U.S.C. § 3582(c)(1)(B). The FSA 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 ... that was committed before August 3, 2010.” Id. § 404(a). Section 2 of the Fair Sentencing Act modified the statutory penalties for certain violations of 21 U.S.C. 841(b) related to cocaine, effectively reducing the penalty applicable to a qualifying defendant. Specifically:

The Controlled Substances Act sets forth three statutory penalty ranges, of 10 years to life in prison, 5 to 40 years in prison, and up to 20 years in prison, “applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense.” Dorsey v. United States, 567 U.S. 260, 266 (citing 21 U.S.C. §§ 841(b)(1)(A)-(C)). . . [U]ntil 2010, the 10-years-to-life statutory penalty range was triggered by a drug trafficking offense involving 50 grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A)(iii) (1993), the 5-to-40-year range by a drug trafficking offense involving 5 grams or more of cocaine base, id. § 841(b)(1)(B)(iii) (1993), and the 0-to-20-year range by a drug trafficking offense involving only a detectable amount of cocaine base, Id. § 841(b)(1)(C) (1993). This penalty scheme treated “crack cocaine crimes as far more serious” than powder cocaine crimes, Dorsey, 567 U.S. at 266, “impos[ing] 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. at 263.
“During the next two decades, the [U.S. Sentencing] Commission and others in the law enforcement community strongly criticized Congress' decision to set the crack-to-powder mandatory minimum ratio at 100-to- 1.” Id. at 268. Thus, in 2010, well after the instant defendants' 1994 sentencings, Congress “accepted the Commission's recommendations ... and enacted the” [Fair Sentencing Act] into law, id. at 269, “reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1, ” id. at 264. Specifically, [Fair Sentencing Act's] section 2, titled “Cocaine Sentencing Disparity Reduction, ” provides, in full:
(a) CSA.-Section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) is amended
(1) in subparagraph (A)(iii), by striking “50 grams” and inserting “280 grams”; and
(2) in subparagraph (B)(iii), by striking “5 grams” and inserting “28 grams”.
(b) IMPORT AND EXPORT ACT.-Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended-
(1) in paragraph (1)(C), by striking “50 grams” and inserting “280 grams”; and
(2) in paragraph (2)(C), by striking “5 grams” and inserting “28 grams”.
FSA, Pub. L. 111-220, § 2, 124 Stat. 2372. 2372 (2010).

United States v. Antone White, et al., 2019 WL 3719006, at *9 (D.D.C. Aug. 6, 2019). On January 29, 2019, I entered an order (Doc. No. 95) appointing the federal public defender to represent the defendant and directing the defendant to file a motion pursuant to the FSA. On February 11, 2019, the defendant filed a motion requesting a reduction in his sentence pursuant to the FSA. Doc. No. 96. On March 1, 2019, the Government filed a response opposing any sentence reduction. Doc. No. 100. On March 22, 2019, the defendant filed a reply. Doc. No. 103. On March 29, 2019, the Government filed a supplement. Doc. No. 104. On April 5, 2019, the defendant filed a final response. Doc. No. 105.

         II. ORIGINAL SENTENCE

         On March 23, 2006, defendant was indicted on three counts related to the distribution of crack cocaine. Doc. No. 1. On September 14, 2006, defendant pled guilty to all three counts pursuant to Rule 11(c)(1)(C) plea agreement.[1] Doc. Nos. 43, 45. Specifically, defendant pleaded guilty to distributing 50 grams or more of crack cocaine and admitted to participating in the distribution of at least 250 grams of cocaine. Doc. No. 40-1. The presentence investigation report (PSIR) attributed 347.2 grams of crack to the defendant. Doc. No. 53. The PSIR found a total offence level 31 and a criminal history category II, resulting in a guideline of 121 to 151 months.[2] On January 3, 2007, the court imposed the 200-month sentence stipulated in the plea agreement. Doc. No. 52. The court also imposed a five-year term of supervised release. Id.

         Subsequently, the court denied the defendant a sentence reduction pursuant to various guideline changes, including Amendment 750 (implementing the Fair Sentencing Act) and Amendment 782 (All Drugs Minus Two). See Doc. Nos. 58, 64, 73, 79 and 93. In denying the motions, the court relied on the parties' Rule 11(c)(1)(C) agreement. See, e.g., Doc. No. 93 at 3-4, stating:

Here, the court is unable to rely on Amendment 782 (subject to subsection (e)(1)) to reduce the defendant's sentence under 18 U.S.C. § 3582(c)(2) and USSG §1B1.10. See generally United States v. Curry, 584 F.3d 1102, 1104 (8th Cir. 2009) (discussing United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir. 1997)) (explaining requirements under USSG §1B1.10(b)). Because the parties entered into an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and the defendant's sentence is predicated on an agreed upon sentence rather than a sentencing range, relief under 18 U.S.C. § 3582(c)(2) is not available to the defendant. See United States v. Williams, 598 F.3d 963, 965 (8th Cir. 2010) (holding 18 U.S.C. § 3582(c)(2) does not apply because court imposed sentence in accordance with Federal Rule of Criminal Procedure 11(c)(1)(C)); see also Freeman v. United States, __U.S.__, __, 131 S.Ct. 2685, 2692-2700 (2011) (requiring a court to determine whether an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) expressly uses a guideline range applicable to the charged offense to establish the term of imprisonment); United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014) (applying Freeman). Accordingly, the court concludes that a reduction under 18 U.S.C. § 3582(c)(2) and USSG §1B1.10 is not justified.

         Defendant has been in federal custody since June 7, 2006. See PSIR 6. According to the BOP time computation, submitted by defendant, he had served approximately 160 months as of February and has earned approximately 10 months of good time credit.

         III. FSA APPLICABILITY

         The parties agree that defendant is potentially eligible for relief because:

defendant was charged by Indictment in March 2006, with three separate crack cocaine related crimes. (Docket # 1). In Count 1, defendant was charged with conspiracy to distribute 50 grams or more of crack cocaine, after a prior felony drug conviction, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851. (Id.). In Count 2, defendant was charged with the possession with intent to distribute 5 grams or more of crack cocaine, after a prior felony drug conviction, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851. (Id.). In Count 3, defendant was charged with the distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Id.). Defendant pled guilty to all of these counts pursuant to a Rule 11(c)(1)(C) plea agreement, with the government withdrawing its 851 notice, and defendant was later sentenced to the agreed-upon 200-month sentence. (Docket # 40, 45, 52). Section 2 of the FSA 2010 changed the statutory penalties associated with the federal crimes set forth in Counts 1 and 2, and defendant committed the offenses prior to August 3, 2010. Therefore, defendant was convicted of a “covered offense.”

         Doc. No. 100 at 5-6. Additionally, if the Fair Sentence Act of 2010 had been in effect when defendant was sentenced, defendant's guideline range would have been reduced. Even using the quantity most favorable to the Government's argument, the 347 grams attributed to the defendant in the PSIR, the defendant's total offense level would be 27, for a guideline range of 78 to 97 months.

         However, as will be discussed more below, the parties disagree about the statutory sentence range. The defendant argues that the statutory range is controlled by the quantity charged. He notes that he was charged under 21 U.S.C. § 841(b)(1)(A) with conspiracy to distribute 50 grams or more of crack and that the Fair Sentencing Act increased the minimum threshold for a (b)(1)(A) offense to 280 grams while amending the range for a (b)(1)(B) offense to 28 grams or more. Thus, post-Fair Sentencing Act, a charge of 50 grams or more of crack, but less than 280 grams, is punishable by a mandatory minimum sentence of 5 and a maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B).

         The Government notes that the presentence report, which was adopted at sentencing, found a quantity greater than 280 grams. Thus, the Government contends, even had the Fair Sentencing Act applied at the time defendant was charged, he would have been charged under (b)(1)(A) and his statutory penalties would have remained the same. Among other things, defendant would still have been subject to a ten-year mandatory minimum sentence on Count 1, rendering him ineligible for relief.

         IV. PARTIES' PLEADINGS

         A. Defendant's Opening Brief

         In his supporting brief, defendant argues that he is entitled for relief. Specifically,

Under the FSA, 50 grams or more of crack is punishable by a mandatory minimum sentence of 5 and a maximum of 40 years. 21 U.S.C. § 841(b)(1)(B). Even if the court uses the 347 grams attributed by the PSR, a post-FSA guideline would have only been 32, which would have resulted in a TOL of 29, at CHC II, equaling 97-121 months. USSG § 2D1.1(c)(4) (2011). Under the current guidelines, the defendant's BOL would be 30, and his TOL would be 27, for a guideline range of 78-97 months. Of course, that sentencing range would effectively become 120 months. USSG § 5G1.1(b). The fact that a concurrent 20-year sentence was imposed on count 3, in which the defendant was charged under § 841(b)(1)(C), is not a bar to relief. Although FSA 2010 did not amend (b)(1)(C), the court was merely following the guidance contained in § 5G1.2(b) of the guidelines. Under the guidelines, all three counts were grouped together for purposes of determining the defendant's total punishment. USSG § 3D1.2(d). (PSR 23).

         Doc. No. 96-1 at 5. Defendant did not anticipate the Government's objection based on the disparity between the charged quantity and the quantity determined at sentencing. However, defendant did anticipate the Rule 11(c)(1)(C) argument, stating:

[the] Rule 11(c)(1)(C) plea agreement [does not] preclude a reduction under Section 404 of the First Step Act. The agreement, which was accepted by the court, allowed the parties to avoid a 240-month mandatory minimum sentence, one of the “disproportionally harsh sentences imposed for crack cocaine offenses.” United States v. Tucker, 2019 WL 324423, at *2 (S.D. Iowa, Jan. 23, 2019). An argument that defendant's sentence was only the result of the 11(c)(1)(C) plea agreement, and not of the statutory scheme that predated the FSA 2010, ignores the overall sentencing framework for crack offenses. See Hughes v. United States, 138 S.Ct. 1765, 1775 (2018). (In context of 18 U.S.C. ยง 3582(c)(2), a sentence imposed under an 11(c)(1)(C) plea agreement was ...

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