United States v. Braswell

          ORDER

          H. RUSSEL HOLLAND SENIOR UNITED STATES DISTRICT JUDGE

         Motion to Reduce Sentence ^[1]

         Defendant moves pro se for a reduction of his current 365-month sentence imposed by this court's judgment of August 22, 2008.^[2] The court interprets defendant's motion to seek relief under both 18 U.S.C. § 3582(c)(2) and Section 404 of the First Step Act of 2018, Pub. L. No. 115-391. The motion is opposed.^[3] Defendant has served and filed his reply.^[4] By a case status order of February 12, 2019, ^[5] the court posed several questions to the parties, to which they responded.^[6] The court ordered an updated pre-sentence report from the Probation Service which was filed under seal on February 15, 2019.^[7] The court had intended that defendant receive a copy of the addendum to the pre-sentence report, but that did not happen; and on March 19, 2019, ^[8] the defendant requested the addendum to the pre-sentence report which was forwarded to him. The defendant's reply regarding the addendum to the pre-sentence report was filed April 2, 2019.^[9] As a result of the court's order of March 29, 2019, ^[10] the court received an additional reply from defendant.^[11]

         There are no factual disputes as to defendant's motion. No. hearing is necessary.

         Application of First Step Act of 2018

         Section 404 of the First Step Act of 2018 was enacted to extend the availability of sentence reductions authorized by Section 2 of the Fair Sentencing Act, Pub. L. No. 111-220 to certain additional defendants. To obtain the benefit of Section 404(b), a defendant must have been imprisoned with respect to a “covered offense”. Section 404(a). A covered offense is one based upon a violation of a federal criminal statute committed before August 3, 2010, the statutory penalty for which was modified by Section 2 of the Fair Sentencing Act.

         Defendant committed multiple violations of a federal criminal statute: 21 U.S.C. § 841(a)(1).^[12] The offenses were all committed prior to August 3, 2010. Section 2 of the Fair Sentencing Act modified the statutory penalties for violations of 21 U.S.C. § 841(a). The Fair Sentencing Act raised the threshold beyond which statutory, mandatory minimum sentences for violation of 21 U.S.C. § 841(b)(1)(A)(iii) apply, from 50 grams of cocaine base to 280 grams of cocaine base. Pertinent to this case, subsection 21 U.S.C. § 841(b)(1)(A)(iii), as amended, made drug offenses involving 280 grams or more of cocaine base subject to a ten-year mandatory minimum sentence. If Section 2 of the Fair Sentencing Act had been in effect in 1998 when defendant was sentenced, he would have been subject to a mandatory minimum sentence of ten years if he were responsible for 280 grams or more of cocaine base, irrespective of a lower advisory guideline sentencing range. As discussed below, defendant was responsible for far in excess of 280 grams of cocaine base, and his guideline range was much higher than 10 years.

         As reflected by the pre-sentence report which preceded defendant's original sentencing, he was responsible for 156 grams of cocaine base, 111.8 grams of powder cocaine, and 1, 300 grams of marijuana. In addition, defendant was held responsible for another 1, 786 grams of cocaine base because of his receipt of a total of $70, 168 in proceeds from dealing in cocaine base. Converting those drug quantities to the equivalent amount of marijuana, defendant was responsible for 38, 863 kilograms of marijuana.^[13]Defendant's original sentence was controlled by the amount of drugs for which defendant was responsible, not by subsection 841(b)(1)(A)(iii). Based upon the amount of drugs for which defendant was responsible (38, 863 kilograms of marijuana), his base offense level was 38. An upward adjustment of two levels for obstruction of justice was added, for a total offense level of 40. Defendant's criminal history category was determined to be III. Docket No. 147 at 8. The advisory guideline range for imprisonment was therefore 360 months to life.

         Defendant was sentenced to a term of imprisonment of 400 months.^[14] Defendant did not receive a statutory, mandatory minimum sentence. If the amendment to subsection 841(b)(1)(A)(iii) had been in effect at the time of sentencing, it would not have affected defendant's sentence.

         In consideration of the foregoing, defendant's motion for relief based upon the First Step Act and Fair Sentencing Act is denied.

         Section 3582(c)(2)

         Based upon 18 U.S.C. § 3582(c)(2), defendant seeks a reduction of his current sentence of 365 months to time served. In opposing a sentence reduction, plaintiff contends that a sentence reduction is not warranted.

         At age 37, defendant was charged, tried, convicted, and sentenced for five violations of 21 U.S.C. § 841(a)(1).^[15] The defendant's presentence report^[16] and judgment found defendant to have been responsible for distribution or possession of the following controlled substances: 156 grams of cocaine base; 111.8 grams powder cocaine, 1, 300 grams of marijuana, and $70, 168 of proceeds from dealing in cocaine base (which was converted to 1, 786 grams of cocaine base). Using the 1997 drug equivalency tables - U.S.S.G § 2.D.1.1 Application Note 8(D) - the foregoing drug quantities were converted to the equivalent amount of marijuana: 38, 863 kilograms. Based upon that computation, defendant's base offense level was 38. U.S.S.G. § 2D1.1(c)(2) (1997). The court imposed a two-level upward adjustment for obstruction of justice. A presentence report placed defendant's criminal history category at II. However, the sentencing judge imposed a variance to criminal history category III. Defendant's total offense level of 40 and criminal history category III yielded an advisory sentencing range of 360 months to life imprisonment.^[17] A sentence of 400 months was imposed, ^[18] to be followed by five years of supervised release.^[19]

         In 2008, defendant sought and was granted a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Defendant's amended total offense level was 38. His criminal history category remained III, and his amended guideline range was 292 to 365 months. Defendant's sentence was reduced from 400 months to 365 months.^[20] Defendant has presently served approximately 260 months.^[21]

         By the instant motion, defendant seeks a further sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based upon a further amendment to the Sentencing Commission guidelines. Amendment 750 to the Sentencing Commission guidelines effected a substantial revision of the drug equivalency tables.

         Under the 1997 drug equivalency table, defendant was responsible for 38, 863 kilograms of marijuana. Under the current drug equivalency table, U.S.S.G. § 2D1.1, Application Note 8(D), one gram of cocaine powder equals 0.2 kilograms of marijuana, and one gram of cocaine base equals 3.571 kilograms of marijuana. Under the current drug equivalency table, defendant is responsible for the following:

156 grams of cocaine base converts to 557.0 kilograms of marijuana;

111.8 grams of powder cocaine converts to 22.36 kilograms of marijuana;

1, 300 grams of marijuana equals 1.3 kilograms of marijuana; and

$70, 168 equals 1, 786 grams of cocaine base which converts to 6, 377.8 kilograms of marijuana; totaling ...