United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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. 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.
court starts with how Judge Clevert calculated the 230-month
sentence he imposed in 2005.
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.
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.
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.
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.
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.
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.
each of Counts Two through Six-the cocaine base charges-the
base offense level was 30, with no ...