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United States v. Glore

United States District Court, E.D. Wisconsin

April 22, 2019

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

          ORDER GRANTING MOTION TO RECONSIDER (DKT. NO. 123) AND ORDERING PROBATION DEPARTMENT TO PREPARE A SUPPLEMENTAL PRESENTENCE REPORT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         A lot of water has passed under the bridge in this case over the past two and a half months. On February 10, 2019, the defendant filed a motion asking the court to reduce his sentence under the First Step Act of 2018. Dkt. No. 107. That motion asked that the court either reduce the defendant's sentence to 224 months or to time served, followed by three years of supervised release. Id. at 12. The government agreed that the court should reduce the defendant's custodial sentence to time served, and his supervised release term to three years. Dkt. No. 109. The court granted the defendant's motion and reduced his sentence to time served followed by three years of supervised release. Dkt. Nos. 110, 111.

         The day after the court entered the amended judgment, the defendant filed a motion asking the court to “correct” the reduced sentence, by replacing the “time served” custodial disposition with a determinate sentence of 219 months. Dkt. No. 112. The motion indicated that the court's order reducing the sentence to time served had not had the “intended effect” of effectuating the defendant's immediate release; the defendant asserted that the Bureau of Prisons had calculated the time served disposition in such a way that the defendant would be released only seven months before he would have been released under the original sentence. Id. at 2-3.

         The government not only objected to this motion, but argued that the court should not grant a sentence reduction at all. Dkt. No. 113. The government asserted that it shouldn't have agreed to a sentence reduction, and that in any event, it had agreed to a reduction only to the extent that the defendant's sentence would have been different had the Fair Sentencing Act been in effect at the time he committed his crimes. Id. at 2-4. It argued that the First Step Act did not authorize the court to resentence the defendant on other aspects of his punishment, such as the eighteen-month sentence Judge Clevert had imposed when revoking the defendant's supervised release in Case No. 94-cr-102. Id. at 4.

         The defendant's response implied that when the court reduced his sentence to time served, it imposed an illegal sentence. Dkt. No. 114. The defendant asserted, “In truth, for this Court's new sentence to be legally permissible, let alone carry out the intentions of the First Step act, the court has to resentence [the defendant] to a specific term that is 240 months or less.” Id. at 1-2. Ignoring the fact that the First Step Act gave courts discretion about whether to grant a reduction at all, the defendant argued that the sentence of time served was “greater than the new statutory maximum, ” id. at 3, that the time-served sentence was “not permissible” under the Act, id., that his original sentence was unfair, id. at 4-5, and that the First Step Act allowed the court to conduct what amounted to a plenary resentencing, id. at 10-16.

         The court denied the defendant's motion to “correct” the amended sentence. Dkt. No. 115. While it rejected the government's suggestion that it should reconsider its grant of the original sentence reduction request, id. at 11-15, it declined to “correct” the amended judgment because it found that there was no “error” to correct, id. at 16. The court disagreed that it had “intended” for the defendant to be released immediately. Id. at 16-17. It disagreed that it had the ability to change the revocation sentence. Id. at 17-18. It disagreed that the time-served sentence was illegal. Id. at 18-19. It disagreed with all the defendant's arguments, in a lengthy (probably excessively lengthy) decision.

         The defendant-acting on his own, not through counsel-filed a notice of appeal. Dkt. No. 116. A couple of weeks later, the defendant's lawyer asked the court to extend the deadline for filing a notice of appeal; he wanted to do some research and talk with the defendant about whether an appeal made sense. Dkt. No. 120. The court granted that request, dkt. no. 121, and the Seventh Circuit dismissed the pro se appeal, dkt. no. 122.

         A day or so later, the defendant filed this motion to reconsider. Dkt. No. 123.[1] The motion specifically addressed the court's statement in its denial of the motion to correct that the defendant had, at the time the court issued the amended judgment on February 25, 2019, served 237 months and nineteen days in custody, and that the court had “used its discretion to reduce the defendant's sentence by approximately thirty-nine months.”[2] Id. at 1 (quoting Dkt. No. 116 at 19, 25). Those statements prompted defense counsel to contact the Bureau of Prisons and ask for documentation regarding how the BOP had treated the court's order imposing a new sentence of time served. Id. at 1-2. Defense counsel attached to the motion to reconsider a document titled “Public Information Inmate Data As of 04-03-2019.” Dkt. No. 123-1. Counsel indicated that he received this document from Robert A. Martinez, the associate general counsel at the Bureau of Prisons. Dkt. No. 123 at 1. Counsel observed that the document reflected that the Bureau of Prisons did not show a thirty-nine-month reduction in the defendant's sentence. Id. at 2. The defendant asked the court to modify the amended judgment, and to impose a determinate sentence of 238 months. Id.

         Since February 10, 2019, the defendant has asked the court to reduce his sentence to time served, 224 months, 219 months, less than 240 months and now, 238 months. The target has moved because (a) the defendant wants to be released immediately (and has wanted that since long before the First Step Act went into effect), (b) this court made the mistake of indicating in its order denying the motion to correct that it intended to reduce the defendant's sentence by thirty-nine months and (c) this court neglected to request input from one source that could help clarify the confusion about the true impact of a First Step reduction for this defendant, given his particular circumstances. The court is granting the defendant's request that it reconsider the reduced sentence it imposed, but it will not announce a new sentence or enter an amended judgment until it clarifies some things, and obtains input from probation.

         The Original Sentence

         The court starts with how Judge Clevert calculated the 276-month sentence he imposed on October 5, 1999.

         The indictment alleged that on May 6, 1999, the defendant possessed with intent to distribute in excess of five grams of cocaine base. Dkt. No. 107-1. At that time, 21 U.S.C. §841(b)(1)(B)(iii) provided that a defendant who committed an offense involving more than five grams of crack faced a mandatory minimum sentence of five years in custody and a maximum of forty years in custody.

         The government indicated in its opposition to the defendant's motion to correct his sentence that the presentence investigation report reflects that the offense of conviction involved 46.5 grams of crack. Dkt. No. 113 at 1-2. It also indicates (as do other pleadings) that the defendant qualified as a career offender under U.S.S.G. § 4B1.1. Id. at 2. Under the 1998 sentencing guidelines in effect at the time of the defendant's October 1999 sentencing, a career offender convicted of an offense with a statutory maximum of forty years was assigned an offense level of 34 and a criminal history category of VI. Because he went to trial, the defendant would not have received an adjustment for acceptance of responsibility. The guideline range for offense level 34 in criminal history category VI was 262 to 327 months.

         In 1999, the sentencing guidelines were mandatory. Judge Clevert had no choice but to sentence the defendant within that 262-to-327-month range, and that is what he did. He sentenced the defendant to serve 276 months- fourteen months above the low end of ...


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