United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S PRO SE MOTION FOR
RESENTENCING UNDER THE FIRST STEP ACT OF 2018 (DKT. NO. 90)
AND MOTION TO REDUCE SENTENCE UNDER THE FIRST STEP ACT (DKT.
NO. 92) BUT DELAYING IMPOSITION OF NEW SENTENCE PENDING A
SUPPLEMENTAL REPORT FROM THE PROBATION DEPARTMENT
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
December 2004, the defendant was indicted in a three-count
indictment; one of those three counts charged him with
possessing with intent to distribute cocaine base. Dkt. No.
1. About a month later, the government filed an information
under 21 U.S.C. § 851, giving notice of its intent to
seek an enhanced penalty because the defendant had a prior
felony drug offense. Dkt. No. 7. On March 21, 2005, the
defendant pled guilty to all three counts. Dkt. Nos. 10, 11.
Judge Clevert sentenced the defendant on November 23, 2005;
he imposed a sentence of 120 months on the
felon-in-possession charge in Count One; 262 months on the
cocaine base charge in Count Two, to run concurrently with
the sentence imposed on Count One; and sixty months for the
charge of using and carrying a gun in relation to a drug
trafficking offense in Count Three, to run consecutively to
the sentences imposed on Counts One and Two, for a total
sentence of 322 months. Dkt. Nos. 27, 28.
appeal, the Seventh Circuit vacated the sentence and remanded
for re-sentencing. Dkt. No. 46. On April 9, 2008, Judge
Clevert resentenced the defendant to serve 120 months on
Count One; 180 months on Count Two, to run concurrently with
the sentence imposed on Count One; and sixty months on Count
Three, to run consecutively to the sentence imposed on Counts
One and Two, for a total sentence of 240 months. Dkt. Nos.
50, 51. He credited the defendant for the forty-two months
he'd already spent in custody, which meant that the
defendant had 198 months left to serve on the new sentence.
Dkt. No. 51 at 2.
January 2, 2019, the defendant-on his own, without a
lawyer-filed a motion asking the court to resentence him
under 18 U.S.C. §3582(c)(2), because of the passage of
the First Step Act of 2018. Dkt. No. 90. Two months later,
counsel filed an appearance on behalf of the defendant, and
filed a second motion to reduce the sentence as a result of
the First Step Act. Dkt. No. 92. The motion filed by counsel
asserts that the defendant is eligible for a sentence
reduction because he was convicted of an offense that was
modified by the Fair Sentencing Act of 2010, and he committed
that offense before that statute's effective date (August
3, 2010). Id. at 6. It appears that the defendant is
correct as to his eligibility-Judge Clevert resentenced the
defendant two and a half years before the FSA went into
effect, and one of the counts of conviction was 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
7. 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. 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 130 to 147 months. Id. at 8. He
asks the court to declare him eligible for a reduced sentence
under the First Step Act, then “either reduce his
sentence to allow for his immediate release and impose six
years of supervised release or set this case for a
resentencing hearing.” Id. at 10-11.
government objects. Dkt. No. 95 at 1. 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. Id. at 3. It
also agrees that his career offender guideline would be lower
under the Fair Sentencing Act, because that the career
offender offense level and guideline ranges are triggered by
the statutory maximum. Id. Despite this, the
government urges the court not to reduce the 180-month
sentence Judge Clevert imposed. The government states that
that sentence already is below what the guideline range would
have been had the Fair Sentencing Act been in effect at
resentencing, because the First Step Act didn't change
the fact that the defendant qualified as a career offender
and because the First Step Act does not authorize plenary
resentencing. Id. The government recognizes that,
despite its opposition, the court may decide to exercise its
discretion to reduce the sentence, and in that event, asks
that the court impose a sentence of time served plus ten days
(to allow time to collect DNA samples). Id. at 4.
reply, the defendant asserts that he isn't asking for
much of a reduction, that he has done well while in prison
and that if he were being sentenced today, his guideline
range would be half of what it was in 2008. Dkt. No. 98 at 1.
He makes a number of legal arguments that this court has
since rejected (the court will mention those below), then
notes that he tried to assist the government when he was
arrested, that he was young when he was sentenced (twenty-six
years old) and that he already has served a very long
sentence. Id. at 4. He asks the court not
to impose a time-served sentence, because to do so would
“trigger” the start of the sixty-month mandatory
minimum sentence Judge Clevert imposed on Count Three.
Id. He asserts that the court need not add ten days
for collection of DNA samples, because the probation office
can do that while he's on supervised release.
Id. He asks the court to reduce his sentence by
twenty-three months “in either fashion imposed in his
original motion.” Id. at 5. (The original
motion asked the court to reduce the drug sentence from 180
months to 160 months or to schedule a resentencing hearing.
Dkt. No. 92 at 1.)
court starts with how Judge Clevert calculated the 262-month
sentence he imposed in 2005.
17, 2005 presentence investigation report indicates that the
defendant was responsible for 22.6 grams of cocaine base.
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 month and a half after the grand jury indicted the
defendant, the government filed an information under 21
U.S.C. §851(a). Dkt. No. 7. 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 a 2002 conviction
in Milwaukee County Circuit Court for possession with intent
to deliver cocaine. 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.
Three charged the defendant with carrying a firearm during
and in relation to a drug offense, in violation of 18 U.S.C.
§924(c)(1)(A)(i). Dkt. No. 1 at 3. That crime carried
(and still carries) a mandatory sentence of sixty 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.
Count Two-the cocaine base charge-the offense level for
possession of more than twenty but less than ...