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United States v. Glore

United States District Court, E.D. Wisconsin

March 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
THEODORE GLORE, Defendant.

          ORDER DENYING MOTION TO CORRECT JUDGMENT (DKT. NO. 112)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On February 25, 2019, the court issued an order granting the defendant's motion for resentencing under the First Step Act of 2018, and resentencing him to time served. Dkt. No. 110. The next day, the defendant filed this motion, asking the court to “correct” that sentence. Dkt. No. 112. The court did not err in imposing the time-served sentence, and will deny the motion.

         I. The 1994 Case

         On July 6, 1994, the grand jury indicted the defendant and Jermaine O'Conner on several counts of possessing with intent to distribute and distributing cocaine. United States v. Jermaine O'Conner and Theodore Glore, No. 94-cr-102 (E.D. Wis.), Dkt. No. 13. The defendant pled guilty before Judge Terence T. Evans. Id. at Dkt. No. 50. On December 12, 1994, Judge Evans sentenced the defendant to serve a total of 144 months in custody, followed by five years of supervised release. Id. at Dkt. No. 57. Judge J.P. Stadtmueller later revised that sentence (presumably because Judge Evans had ascended to the Seventh Circuit), but the term of supervised release-five years-remained the same. Id. at Dkt. Nos. 80, 85. Judge Evans had imposed conditions of supervised release, including a condition that the defendant could not illegally possess any controlled substance, ordering that if he did, he would be revoked and sent to prison. Id.

         II. The 1999 Case

         On May 11, 1999, the grand jury indicted the defendant for possession with intent to distribute in excess of five grams of cocaine base, or “crack”- that indictment is the basis for this current case. Dkt. No. 4. As the defendant states in his motion, “[a]t the time, that five-gram threshold was enough to subject a person to the penalties of 21 U.S.C. § 841(b)(1)(B), and its minimum/maximum prison range of five-to-40 years.” Dkt. No. 107 at 1. The defendant was serving his five-year term of supervised release in No. 94-cr-102 at the time he committed the offense in this case.

         A. The Contempt Finding

         On July 7, 1999, during the final pretrial conference in this case, the defendant “intentionally threw or knocked the microphone from the defense table causing it to break; he cursed, shouted, and had to be restrained by deputy U.S. Marshals, thereby delaying and disrupting the proceeding.” Dkt. No. 31. On October 5, 1999, Judge Clevert found the defendant in contempt, based on this conduct. Id.

         B. The Conviction and Sentencing

         After a bench trial on the substantive charge of possession with intent to distribute crack, the defendant was convicted on July 21, 1999. Dkt. No. 29. Judge Clevert conducted the sentencing hearing on October 5, 1999. Dkt. No. 32. As noted, a defendant convicted of possessing in excess of five grams of crack faced a mandatory minimum sentence of five years (sixty months), and a maximum of forty years. The United States Sentencing Guidelines were mandatory at that time (the Supreme Court did not issue its decision in United States v. Booker until 2005). The defendant qualified as a career offender under §4B1.1. Because the applicable statutory maximum was forty years and he qualified as a career offender, the defendant's base offense level under §4B1.1(b)(2) was 34 and his criminal history category was VI, resulting in a guideline range of 262 to 327 months. Dkt. No. 107 at 1-2. Judge Clevert imposed a sentence of 276 months-fourteen months over the low end of the range. Dkt. Nos. 32, 33.

         During that same hearing, the defendant admitted that his conviction in this case proved that he had violated the conditions of his supervised release in No. 94-cr-102; Judge Clevert sentenced him to serve eighteen months in custody for that violation, to run consecutively to the sentence imposed in this case. No. 94-cr-102, Dkt. No. 93.

         Finally, Judge Clevert found that the defendant had committed contempt of court during his outburst at the final pretrial conference, and sentenced him to serve ninety days in custody for the contempt. Dkt. No. 31. Judge Clevert ordered that that ninety-day sentence run concurrently with the eighteen-month sentence he'd imposed for the defendant's supervised release violations in No. 94-cr-102 (which he'd imposed to run consecutively to the 276-month sentence imposed in this case). Id.

         III. The First Step Act

         In 2010, Congress passed the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder offenses; it reduced the powder-to-crack ratio from 100 to 1 to 18 to 1. Dorsey v. United States, 567 U.S. 260, 263 (2012). The statute took effect on August 3, 2010. Id. Specifically, the statute changed the triggering amount for the five-year mandatory minimum and forty-year maximum in 21 U.S.C. §841(b)(1)(B)(iii) from five grams or more of crack to twenty-eight grams or more. Fair Sentencing Act of 2010, PL 111-220, Aug. 3, 2010, 124 Stat. 2372 at §2(a)(2). Under the Fair Sentencing Act, crack offenses involving less than twenty-eight grams carried no mandatory minimum penalty and a maximum of twenty years. 21 U.S.C. §841(b)(1)(C). The Supreme Court analyzed the language of the Fair Sentencing Act and determined that “Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders.” Dorsey, 567 U.S. at 281. Under that ruling, people like the defendant in this case, who had both offended and been sentenced before August 3, 2010, did not receive the benefit of the reduced statutory minimums and maximums created by the Fair Sentencing Act.

         If the Supreme Court had held that the Fair Sentencing Act applied retroactively, that holding would have impacted the defendant's sentencing guidelines calculation. The career offender guideline in §4B1.1(b) is calculated using the statutory maximum penalty applicable to the offense of conviction. A defendant whose offense of conviction carries a maximum of twenty-five years or more is subject to an offense level of 34, regardless of what his offense level would have been were he not a career offender. Level 34 in criminal history category VI yields a sentencing range of 262 to 327 months. An offender whose offense of conviction carries a maximum of twenty years is subject to an offense level of 32. Level 32 in criminal history category VI yields a sentencing range of 210 to 262 months. The lower statutory maximum would have resulted in a difference of fifty-two months on the low end of the defendant's applicable guideline range and sixty-five months on the high end.

         In December 2018, Congress passed the First Step Act. The First Step Act made the statutory sentencing ranges for crack offenses established by the Fair Sentencing Act of 2010 retroactive to defendants who committed their offenses and were sentenced before August 3, 2010. Dkt. No. 107 at 3-4. Section 404 of the First Step Act made the Fair Sentencing Act reduction retroactive. Id. at 4-5. It applied to any defendant who, prior to August 3, 2010, was convicted of an offense for which the Fair Sentencing Act would have reduced the statutory penalties. Id. at 5. The First Step Act does not mandate sentence reductions for defendants who meet these qualifications; it leaves to the court's discretion whether to reduce their sentences. Id. Nor does the First Step Act reduce the statutory penalties for such defendants; it does not retroactively subject such defendants to the lower statutory minimums and maximums created by the Fair Sentencing Act. It allows courts only to resentence eligible defendants as if the reduced minimums and maximums had been in effect when the defendants committed their offenses and were sentenced.

         IV. The Defendant's Motion to Reduce His Sentence

         In his First Step motion (filed in case number 99-cr-82), the defendant argued that he was eligible for a First Step reduction because the offense of conviction was committed before August 3, 2010 (and he was sentenced before that date), and because if Judge Clevert had sentenced him after the Fair Sentencing Act went into effect, the defendant would have faced a lower sentence. Id. at 6-7. As the court has noted, had the defendant been sentenced under the Fair Sentencing Act, his guideline range would have been 210 to 262 months-a low end of sixty-six months below the sentence Judge Clevert imposed, and a high end of fourteen months below the sentence he imposed. The motion asked this court to reduce the defendant's sentence to “224 months[1] or time served, ” followed by three years of supervised release. Id. at 12.

         Three days after receiving the defendant's motion, the court ordered the government to respond. Dkt. No. 108. Ten days later, the government complied with that order, agreeing that the defendant was eligible for a reduction under the First Step Act and joining the defendant's recommendation that the court resentence the defendant to time served. Dkt. No. 109. Given that, the court granted the defendant's motion, vacated the October 5, 1999 sentence that Judge Clevert had imposed in this case, and imposed a new sentence of time served. Dkt. Nos. 110 at 2, 111.

         V. The Defendant's Motion to “Correct” the Amended Sentence

         A. The ...


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