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United States v. Baxter

United States District Court, S.D. West Virginia, Charleston Division

October 31, 2019

UNITED STATES OF AMERICA
v.
KIRK BAXTER

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant's Motion for Reduction of Sentence pursuant to the First Step Act of 2018. Eligibility Mem., ECF No. 65. For the reasons set forth below, the Court GRANTS the motion.

         I. BACKGROUND

         On October 5, 1998, Defendant was arrested and found in possession of fifty grams of cocaine base, or “crack.” Id. at 5. Eleven months later-on November 3, 1999-a grand jury returned a single-count indictment charging Defendant with possession with the intent to distribute a quantity of crack in violation of 21 U.S.C. § 841(a)(1). Resp., ECF No. 70, at 1. Defendant subsequently entered into a plea agreement with the government and pleaded guilty to the charge. Eligibility Mem., ECF No. 65, at 2.

         Based upon “a May 1, 1986 conviction for Attempted Second Degree Burglary in Brooklyn, New York . . . and on a January 24, 1992 conviction for possession with intent to deliver in Baltimore, Maryland, ” Defendant was “determined to be a career offender under U.S.S.G. § 4B1.1(A).” Id. Under section 4B1.1(A), Defendant's base offense level was calculated at thirty-seven. Id. Unfortunately for Defendant, his conduct-based offense level was one point higher than that provided by the career offender enhancement; as over 1.5 kilograms of crack were attributed to him for sentencing purposes, his base offense level was calculated at thirty-eight. Resp., at 2. With a two-level enhancement for possession of a firearm and a four-level enhancement for an aggravating role, his offense level increased to forty-four. Id. After a three-level decrease for acceptance of responsibility, Defendant's total offense level landed at forty-one. Id. With a criminal history category of VI, the sentencing court determined the mandatory “guideline range to be 360 months to life.” Id.

         On June 12, 2000, Defendant was sentenced to the Guideline minimum of 360 months imprisonment and five years supervised release. Id. Since then, he has received no reductions in his sentence. Id. He has adjusted relatively well to federal custody; while he has accumulated several sanctions, he has also completed two drug programs and is enrolled in classes to obtain his GED.[1] Probation Mem., at 4. He is projected to be released on July 4, 2026. Eligibility Mem., at 3.

         II. LEGAL STANDARD

         When a court imposes a sentence of imprisonment, it is considered the final judgment on the matter and the court, as a general prohibition, “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. §§ 3582(b) & 3582(c)(1)(B). However, a court can modify a sentence where it is “expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B).

         The First Step Act of 2018 states, in relevant part, that a “court that 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 . . . were in effect at the time the covered offense was committed.” Pub. L. No. 115- 391, 132 Stat. 5194, § 404(b) (2018) (hereinafter “The First Step Act”). Section Two of the Fair Sentencing Act increased the quantity of cocaine base, or “crack, ” which triggers a mandatory minimum penalty. Pub. L. No. 111-220, §2, 124 Stat. 2372 (2010). Section Three eliminated the statutory minimum sentence for simple possession of crack. Id. at § 3.

         To be eligible for a reduction in sentence, a defendant's sentence must not have been imposed or previously reduced under sections two or three of the Fair Sentencing Act of 2010.[2]Id. at § 404(c). Nor can a defendant have been previously denied a reduction under § 404 of the First Step Act. Id. While a defendant, the Government, or the Court can move for a reduced sentence, individuals are not entitled to a reduction as courts are not required to grant relief under § 404. Id. The First Step Act therefore represents a broad grant of authority to the federal courts.

         Courts in this district and throughout the Fourth Circuit agree that the proper mechanism to seek relief under the First Step Act is 18 U.S.C. § 3582(c)(1)(b).[3] United States v. Banks, No. 1:07-00157, 2019 WL 2221620, at *4 (S.D. W.Va. May 22, 2019) (Faber, J.) (citing United States v. Shelton, No. 3:07-329, 2019 WL 1598921, at *3 (D.S.C. April 15, 2019) (listing cases)). As such, the language of First Step Act controls the Court's ability to grant relief. See Wright v. United States, Nos. 4:95-39, 4:95-44, 2019 WL 3046096, at *4 (E.D. Va. July 11, 2019). Under § 3582(c)(1)(B), a court can choose to conduct a simple mechanical reduction of a sentence based on a decreased exposure to statutory minimums and the correlating lower guideline range.

         However, courts are not limited by § 3582(c)(1)(B). The First Step Act allows a court to “impose a reduced sentence” if an individual is eligible. The First Step Act, § 404(b). Reading the word “impose” consistently within the United States Code reveals that this equates to the announcement of a convicted person's sentence. See 18 U.S.C. §§ 3553(a) and 3582(a). Therefore, the First Step Act grants courts statutory authority to conduct a full resentencing, in addition to the discretion to decide when doing so is appropriate. See Wright, 2019 WL 3046096, at *4. Whether or not a court decides to resentence a defendant, the language of the First Step Act does not require a hearing. See Id. at *5. It is within the sound judgment of the Court to determine if an evidentiary or sentencing hearing is necessary to address the issues of a particular case.

         When considering the statutory authority under the First Step Act, federal courts presume Congress acts in the context of relevant case law. Abuelhawa v. United States, 556 U.S. 816, 821 (2009) (citing Williams v. Taylor, 529 U.S. 362, 380-81, n.12 (2000). The Fair Sentencing Act, and its application through the First Step Act, is administered in light of the Supreme Court's decision in United States v. Booker, which held that mandatory guideline ranges are unconstitutional. 543 U.S. 220, 244-45 (2005). While Booker is not retroactively applied on a collateral attack, a court may now vary outside of the guideline range if it chooses to conduct a full resentencing. United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). This includes variances based on policy disagreements with the Sentencing Guidelines. See Kimbrough v. U.S., 552 U.S. 85 (2007).

         Once a defendant is determined to be eligible, the Court must examine the statutory threshold to which that defendant pleaded and compare it to the alteration of the applicable law. The Court recognizes that the drug quantity listed in an indictment traditionally tracks the statutory minimums to ensure a defendant's plea or conviction complies with the Sixth Amendment. It is not illogical to speculate that had the Fair Sentencing Act been enacted at the time of a defendant's plea, the elevated statutory amounts would be listed in the indictment and may have had little to no impact on the defendant's decision to plea. See U.S. v. Blocker, No. 4:07-36-RH, 2019 WL 2051957, at *4 (N.D. Fla. Apr. 25, 2019) (explaining “indictment-controls” versus “offense-controls” theories, and adopting the latter). Yet to assume such a fact impermissibly alters the indictment and unconstitutionally abridges a defendant's Sixth Amendment rights. See Alleyne v. United States, 570 U.S. 99 (2013). In the context of First Step Act cases, this is true whether a court is conducting a full resentencing or not. See, e.g., United States v. Smith, 379 F.Supp.3d 543, 546-47 (W.D. Va. May 13, 2019). Due to the constitutional ...


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