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United States v. Rivas

United States District Court, E.D. Wisconsin

April 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PEDRO L. RIVAS, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR RESENTENCING UNDER THE FIRST STEP ACT OF 2018 (DKT. NO. 45), BUT DELAYING IMPOSITION OF NEW SENTENCE PENDING A SUPPLEMENTAL REPORT FROM THE PROBATION DEPARTMENT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         In October 2004, the defendant was indicted in a seven-count indictment; five counts charged him with possessing with intent to distribute cocaine base. Dkt. No. 1. On January 20, 2005, the defendant pled guilty to the charges (he entered a “blind” plea, without a plea agreement). Dkt. Nos. 18, 19. Judge Clevert sentenced the defendant on August 31, 2005; he imposed a sentence of 120 months on the 18 U.S.C. §924(c) gun charge; 170 months on each of the five cocaine base charges, to run concurrently with each other and with the 120 months on the gun charge; and 60 months on the last gun charge, to run consecutively to the sentences imposed on the other counts, for a total sentence of 230 months, or nineteen years and two months. Dkt. No. 32.

         On March 6, 2019, the defendant filed this motion, asking the court to reduce his sentence under the First Step Act of 2018. Dkt. No. 45. He asserts that he is eligible for a sentence reduction because he was convicted of offenses that were modified by the Fair Sentencing Act of 2010, and he committed those offenses before that statute's effective date (August 3, 2010). Id. at 3-4. It appears that he is correct as to his eligibility-Judge Clevert sentenced the defendant five years before the FSA went into effect, and five of the counts of conviction involving charges of possession with intent to distribute cocaine base.

         The defendant asks the court to re-sentence him as if the FSA had been in effect on the date he was sentenced. Id. at 6. But he also asks the court to apply current law to find (contrary to what Judge Clevert found in 2005) that he does not qualify as a career offender under §4B1.1 of the guidelines. Id. at 6-7. He argues that if the court re-sentences him (a) as if the FSA had been in effect and (b) without treating him as a career offender, his guidelines will drop from the 322 to 387 month total he faced before Judge Clevert to 144 to 165 months. Id. at 7. The defendant says that if the court agrees to his calculations, and “reduces [his] drug sentences to terms that result in his immediate release, ” he “agrees to waive his right to a hearing under the [First Step] Act.” Id. at 10. If the court doesn't agree to reduce his sentence to one that results in immediate release, the defendant asks the court to schedule a hearing. Id. He asks the court to impose a sentence of 138 months each on Counts 2, 3, 4, 5 and 6, to run concurrently with each other and “to Count 1.” Id. He makes no mention of the 60-month consecutive sentence Judge Clevert imposed on Count Seven.

         The government objects. The government agrees that if the Fair Sentencing Act had been in effect at the time of the defendant's sentencing, the statutory maximum for his offenses would have been lower. Dkt. No. 48 at 3. But the government argues that under the career offender guideline, this would have no effect on the defendant's guideline range, nor would it have any effect on the sixty-month consecutive sentence required by Count Seven. Id. Second, the government argues that Judge Clevert gave the defendant the benefit of a below-guidelines sentence back in 2005. Id. Third, the government asserts that the defendant has had several disciplinary sanctions while in custody- possession of drugs or alcohol and assault of other inmates on several occasions. Id. Fourth, the government argues that the even if the original sentencing took place today, the defendant still would qualify as a career offender. Id. at 4 n.1. Finally, the government asserts that the First Step Act does not authorize the court to conduce a plenary sentencing, at which it starts from scratch in calculating the defendant's sentence. Id. at 4. The government argues that the First Step Act does nothing more than allow the court to consider what the defendant's sentence would have been had the FSA been in effect as of his original sentencing date. Id. For these reasons, the government urges the court to decline to use the discretion given it by the First Step Act, and to decline to reduce the defendant's sentence. Id. at 4-5.

         In reply, the defendant first asserts that the parties do not dispute “that under today's law [the defendant] is not a career offender.” Dkt. No. 51 at 1. (That is not the way the court read the government's objection.) Next, the defendant argues that “[p]recedent and the text of the [First Step] Act” allow for plenary sentencing. Id. at 1-3. (He does not cite any “precedent;” he argues only that the authority cited by the government-Dillon v. United States, 560 U.S. 817 (2010)-is distinguishable. Id. at 2-4.) Third, he argues that even if the court treats him as a career offender, his guideline range still would be lower under the FSA than it was at the time of sentencing. Id. at 3. Fourth, he argues that the court should not deny his motion due to his disciplinary infractions, which he addressed in a letter to Judge Clevert.[1] Id. at 4. Finally, the defendant argues that the court should not impose a sentence of time served, because such a sentence “would trigger the beginning of that consecutive 924(c) sentence, thus lengthening his sentence by several years.” Id. at 5. He argues that the First Step Act does not allow the court to increase sentences. Id.

         The Original Sentencing

         The court starts with how Judge Clevert calculated the 230-month sentence he imposed in 2005.

         Statutory Maximums

         The March 18, 2005 presentence investigation report indicates that the defendant was responsible for 46.1 grams of cocaine base-6.2 grams on July 30, 2004 for Count Two; 11.5 grams on August 3, 2004 for Count Three; 11.6 grams on August 19, 2004 for Count Four; 12.1 grams on August 20, 2004 for Count Five, and 4.7 grams seized during the search of the defendant's residence on August 20, 2004 for Count Six.

         In its response to the defendant's First Step motion, the government included a chart listing the offense dates and drug amounts. Dkt. No. 48 at 2. The amounts the government lists are less than the amounts reflected in the PSR-4.69 grams for Count Two, 9.63 grams for Count Three, 9.42 grams for Count Four, 9.59 grams for Count Give and 3.9 grams for Count Six. Id.

         Either way, at least three of the counts to which the defendant pled- possibly four-involved five grams or more of cocaine base. At the time the defendant committed these offenses, 21 U.S.C. §841(b)(1)(B)(iii) provided that a defendant convicted of a drug offense involving five grams or more of cocaine base was subject to a five-year mandatory minimum sentence and a maximum sentence of forty years.

         Section 841(b)(1)(B)(iii) also required that that if a defendant was convicted of a violation involving five grams or more of cocaine base “after a prior conviction for a serious drug felony or a serious violent felony has become final, ” that person was subject to an enhanced sentence-a mandatory minimum sentence of ten years and a maximum of life. A little over a week after the grand jury indicted the defendant, the government filed an information under 21 U.S.C. §851(a). Dkt. No. 9. That statute requires the government to give notice if it seeks an enhanced sentence based on qualifying prior convictions. The government's information provided that notice, listing two predicate drug offenses-a 1996 conviction for possession of cocaine with intent to distribute, and a 2000 conviction for possession of marijuana, second offense. Id. Once the government had filed the information, the defendant faced a mandatory minimum sentence of ten years and a maximum of life on any count that involved five grams or more of cocaine base.

         Count Seven charged the defendant with knowingly possessing a gun in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(a)(A)(i), dkt. no. 1 at 7; that crime carried (and still carries) a mandatory sentence of 60 months, to be imposed consecutively to any other sentence. The only count of conviction that did not carry a mandatory minimum sentence was Count One- the charge of being a felon in possession of a firearm. Regardless of the application of the sentencing guidelines, the defendant faced a mandatory minimum sentence of 180 months, or fifteen years, and a maximum sentence of life.

         The Sentencing Guidelines

         The PSR indicated that for Count One-the felon-in-possession charge- the base offense level was 24, plus 2 levels because the gun had an obliterated serial number, plus 4 levels because the defendant used or possessed the gun in connection with another felony (the drug offenses). The total offense level for Count One was 30.

         For each of Counts Two through Six-the cocaine base charges-the base offense level was 30, with no ...


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