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United States v. Drake

United States District Court, N.D. West Virginia

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEANTE DRAKE, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SENTENCE REDUCTION [DKT. NO. 433], REDUCING DEFENDANT'S SENTENCE PURSUANT TO THE FIRST STEP ACT, AND DENYING AS MOOT DEFENDANT'S MOTION FOR JUDICIAL NOTICE [DKT. NO. 447]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On June 5, 2007, a grand jury sitting in the Northern District of West Virginia returned a five-count indictment, charging the defendant, Deante Drake (“Drake”), with one count of conspiring to possess with intent to distribute and distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (Count One); one count of aiding and abetting the distribution of cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (Count Two); and one count of aiding and abetting possession with intent to distribute 50 grams or more of cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) (Count Four) (Dkt. No. 1).

         On January 9, 2008, Drake pleaded guilty to Count One of the Indictment (Dkt. Nos. 136, 141), and on May 12, 2008, the Court, after determining that he qualified as a career offender, sentenced him to 292 months of incarceration followed by 5 years of supervised release (Dkt. Nos. 164, 165). On appeal, Drake challenged, among other things, his career offender enhancement (Dkt. Nos. 170, 202). On March 16, 2009, the United States Court of Appeals for the Fourth Circuit dismissed Drake's appeal in part because it was barred by the terms of his plea agreement and affirmed his designation as a career offender (Dkt. No. 202).

         On January 17, 2017, then President Barack Obama granted Drake executive clemency, reducing his term of incarceration from 292 to 188 months (Dkt. No. 403).

         On May 1, 2019, Drake filed a pro se motion for a further sentence reduction pursuant to the First Step Act of 2018 (Dkt. No. 433). The Government responded on April 9, 2019 (Dkt. No. 434), and Drake replied on April 29, 2019 (Dkt. No. 435). Thereafter, on July 2, 2019, an attorney from the Federal Public Defender's Officer moved for leave to appear and file a supplemental reply in support of Drake's pro se motion (Dkt. No. 439). After the Court granted the motion (Dkt. No. 440), counsel for Drake filed the supplemental reply on July 9, 2019 (Dkt. No. 442), and also filed a motion to take judicial notice of publicly filed documents on August 21, 2019 (Dkt. No. 447). At the Court's direction, the Government filed its supplemental response on August 23, 2019 (Dkt. No. 448), following which counsel for Drake filed a notice of supplemental authority and updated information on October 8, 2019 (Dkt. No. 450). The matter is fully briefed and ripe for disposition.

         II. APPLICABLE LAW

         Under Section 404 of the First Step Act, courts that have “imposed a sentence for a covered offense” may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.” Pub. L. No. 115-015, § 404, 132 Stat. 015, 015 (2018). “A ‘covered offense' is defined as ‘a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” United States v. Delaney, No. 6:08-cr-00012, 2019 WL 861418, at *1 (W.D. Va. Feb. 22, 2019) (citations omitted).

         “However, defendants are ineligible for a reduced sentence under the [First Step Act] if their sentence ‘was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010.'” United States v. Evans, No.1:08CR00024-001, 2019 WL 1199474, at *1 (W.D. Va. Mar. 14, 2019) (quoting § 404(c)).

         III. ANALYSIS

         “In determining if modification is appropriate, the Court will first address whether a reduction is consistent with the First Step Act, and will then ‘consider whether the authorized reduction is warranted, either in whole or in part, according to the facts set forth in § 3553(a).'” Delaney, 2019 WL 861418, at *1 (footnote omitted) (quoting Dillon v. United States, 560 U.S. 817, 826 (2010)).

         A. Drake is eligible for a sentence reduction under the First Step Act.

         Drake was convicted of one count of conspiring to possess with intent to distribute and distribute in excess of 50 grams of crack cocaine (Count One) (Dkt. No. 165). This crime was committed before August 3, 2010. Id. The statutory penalties are set forth in 21 U.S.C. § 841(b)(1), which was amended by the Fair Sentencing Act in Before the Fair Sentencing Act took effect, a violation of 21 U.S.C. § 841(a)(1) involving more than 50 grams of crack cocaine resulted in a mandatory minimum sentence of 10 years and a statutory maximum sentence of life in prison. Section 2(a) of the Fair Sentencing Act amended these penalties by striking “50 grams” in subparagraph (A)(iii) of § 841(b)(1) and inserting in its place “280 grams.” Thus, after the Fair Sentencing Act took effect in 2010, a violation of § 841(a)(1) involving more than 28 grams but less than 280 grams of crack cocaine resulted in a mandatory minimum sentence of 5 years and a statutory maximum sentence of 40 years. 21 U.S.C. § 841(b)(1)(B)(iii).

         When the Court sentenced Drake in 2008, Congress had not yet passed the Fair Sentencing Act. Consequently, the Court determined that his sentencing range was 10 years to life in prison as then required by § 841(b)(1)(A) (Dkt. No. 185 at 9). Because Drake's statutory sentencing range was 10 years to life in prison, his sentence clearly was not “previously imposed . . . in accordance with the amendments made by section[] 2 . . . ...


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