United States District Court, E.D. Wisconsin
ORDER DENYING MOTION TO CORRECT JUDGMENT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
The 1994 Case
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.
The 1999 Case
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.
The Contempt Finding
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
The Conviction and Sentencing
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.
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.
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.
The First Step Act
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.
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.
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.
The Defendant's Motion to Reduce His Sentence
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 or time served, ” followed by three
years of supervised release. Id. at 12.
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.
The Defendant's Motion to “Correct” the