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United States v. Alfred Cheese

April 16, 2013


The opinion of the court was delivered by: Ellen Lipton Hollander United States District Judge


In 1999, Alfred Cheese was convicted by a jury of one count of conspiracy to distribute heroin, cocaine, and cocaine base ("crack"), in violation of 21 U.S.C. § 846, and two counts of possession of a firearm after conviction of a felony, in violation of 18 U.S.C. § 922(g)(1). On March 14, 2000, Judge Benson E. Legg sentenced Cheese to concurrent terms of life imprisonment as to each of the three counts. The convictions and sentences were affirmed by the Fourth Circuit in a consolidated appeal that also involved several co-defendants. See United States v. Johnson, 26 F. App'x 111 (4th Cir. 2001), cert. denied, 535 U.S. 949 (2002). Judge Legg subsequently denied Cheese's motion for post-conviction relief under 28 U.S.C. § 2255, see ECF 553 & 554, and Cheese's appeal from that decision was dismissed. See United States v. Cheese, 177 F. App'x 316 (4th Cir. 2006). Thereafter, Cheese filed a motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2) ("First Sentence Reduction Motion") (ECF 615). Judge Legg denied the First Sentence Reduction Motion, see ECF 660, 671, 699, which was affirmed on appeal. See United States v. Cheese, 384 F. App'x 245 (4th Cir. 2010).

Cheese subsequently filed four motions that are now pending before the Court: a "Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)" ("Second Sentence Reduction Motion") (ECF 777); a "Motion for the Clarification Regarding the Courts Order/Reasoning for Denying Petitioners [sic] Motion to Suppress Evidence seized at 1215 Sugarwood Circle and the Courts [sic] finding Existence of Probable cause to believe the Vehicle linked to Petitioners was Forfeitable Contraband" ("First Clarification Motion") (ECF 779); another "Motion for Clarification" ("Second Clarification Motion") (ECF 794); and a "Status Motion" (ECF 800), which simply asks the Court for an update as to the status of the other three motions.

The government has not filed a response to any of the motions. However, neither a response nor a hearing is necessary, because the motions can readily be resolved on the basis of the record. See Local Rule 105.6. Because Judge Legg was unable to rule on these matters before his retirement, the case has been reassigned to me. My rulings follow.

A. Second Sentence Reduction Motion

In the Second Sentence Reduction Motion, Cheese asserts that his sentence should be reduced by virtue of retroactive application of amendments to the United States Sentencing Guidelines, see U.S.S.G., Amendments 748 (eff. Nov. 1, 2010), 750 (eff. Nov. 1, 2011), and 759 (eff. Nov. 1, 2011), which were adopted in connection with the enactment of the Fair Sentencing Act of 2010 ("FSA"), Pub. L. 111-220, 124 Stat. 2372 (enacted Aug. 3, 2010). The purpose of the FSA and the related amendments to the guidelines was to partially alleviate the so-called "crack v. powder disparity," by which defendants who were convicted of a drug offense involving a given amount of cocaine base (a.k.a. "crack") were exposed to substantially higher guidelines sentences and statutory minimum sentences than defendants convicted of offenses involving the same amount of powder cocaine. See United States v. Bullard, 645 F.3d 237, 245 & n.4. (4th Cir.), cert. denied, 132 S. Ct. 356 (2011). The FSA lowered the disparity but did not eliminate it. Id. The disparity now corresponds to a weight ratio of approximately 18:1 (i.e., it takes approximately 18 times as much powder cocaine as crack to trigger a given statutory minimum sentence or guidelines base offense level); under prior law, the ratio was 100:1. With respect to the Sentencing Guidelines, the reduction of the crack/powder disparity was accomplished by amending the "Drug Quantity Table" in U.S.S.G. § 2D1.1(c), which establishes the base offense levels for conviction of an offense involving given quantities of any particular controlled substance.*fn1 In Amendment 759, the United States Sentencing Commission made the amendments to the Drug Quantity Table eligible for retroactive application via resentencing, pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.

Section 3582(c)(2) is a limited exception to the ordinary rule that a sentence of imprisonment is a final judgment that cannot be modified after it has been imposed. In pertinent part, the statute provides that, "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission," the court "may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) (emphasis added). A sentence may be modified pursuant to § 3582(c)(2) upon motion of the defendant or the Bureau of Prisons, or by the court on its own motion. Id.

The "applicable policy statements" of the Sentencing Commission to which § 3582(c)(2) refers are collected in U.S.S.G. § 1B1.10. See United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).

Under § 1B1.10, only certain specifically enumerated amendments to the guidelines are eligible for retroactive application; as noted, the amendments to the Drug Quantity Table contained in Amendment 750 are among the "covered" amendments. U.S.S.G. § 1B1.10(c). However, the following policy statement is pertinent here: "A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . a[ ] [covered] amendment . . . does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G § 1B1.10(a)(2)(B). Further, the Application Notes to § 1B1.10 explain that the foregoing policy statement applies where a covered amendment "is applicable to the defendant but the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)." U.S.S.G. § 1B1.10, Application Note 1(A). As I will explain, Mr. Cheese's case comes within the exclusion stated in § 1B1.10(a)(2)(B), rendering him ineligible for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2).

The record of conviction indicates that the Second Sentence Reduction Motion is barred under U.S.S.G. § 1B1.10(a)(2)(B) for two reasons, each of which is independently sufficient. First, the sentence of life imprisonment as to the narcotics distribution conspiracy charge (which was Count Three of the indictment) was a statutory mandatory minimum term of imprisonment imposed pursuant to 21 U.S.C. § 846(b). Accordingly, the life sentence was not based on a sentencing guidelines calculation. Second, even if the sentence had been based on the sentencing guidelines, the applicable guidelines sentence was a life sentence due to application of the "murder cross-reference" of U.S.S.G. § 2D1.1(d)(1). Because the Drug Quantity Table had no impact on the applicable guidelines sentence, Cheese is not eligible for resentencing.

With respect to the sentence and the applicable sentencing guidelines, Judge Legg stated the following at the sentencing hearing, Transcript at 4-5 (ECF 463) (emphasis added):

Because of the notice of enhanced sentence that the government filed pretrial, and because of Mr. Cheese's felony convictions, the sentence that must be imposed is a life sentence, meaning that, in a real sense, the intermediate computations found in paragraphs 72 through 80 [of the Pre-Sentence Report] calculating the offense level, and in the criminal history computation section resulting in paragraph 122 with a criminal history computation of roman numeral VI are irrelevant because they do not contribute to the ultimate sentence.

They are relevant, however, in the sense that they are determinations that need to be made. Because there are no objections, I hereby adopt the recommendations and findings of ...

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