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United States v. Coleman

United States District Court, E.D. Wisconsin

April 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DANTE N. COLEMAN, Defendant.

          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

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         In 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.

         On 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.

         On 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.

         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 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.

         The 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.

         In 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.)

         The Original Sentencing

         The court starts with how Judge Clevert calculated the 262-month sentence he imposed in 2005.

         Statutory Maximums

         The May 17, 2005 presentence investigation report indicates that the defendant was responsible for 22.6 grams 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 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.

         Count 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.

         The Sentencing Guidelines

         The PSR indicated that for Count One-the felon-in-possession charge- the base offense level was 24.

         For Count Two-the cocaine base charge-the offense level for possession of more than twenty but less than ...


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