United States District Court, E.D. Wisconsin
ORDER GRANTING MOTION TO RECONSIDER (DKT. NO. 123)
AND ORDERING PROBATION DEPARTMENT TO PREPARE A SUPPLEMENTAL
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
or so later, the defendant filed this motion to reconsider.
Dkt. No. 123. 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.” 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.
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.
court starts with how Judge Clevert calculated the 276-month
sentence he imposed on October 5, 1999.
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.
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.
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 ...