The opinion of the court was delivered by: Ellen Lipton Hollander United States District Judge
In 1999, a jury convicted Kendall Schuyler of conspiracy to distribute cocaine and cocaine base ("crack"), in violation of 21 U.S.C. §§ 841 & 846, and use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The convictions arose out of Schuyler's participation in a long-running, violent narcotics distribution organization operating in and around the O'Donnell Heights public housing community in Baltimore, Maryland. In March 2000, Judge Benson E. Legg sentenced Schuyler to imprisonment for life as to the narcotics conspiracy count, and to a consecutive sentence of imprisonment for 60 months as to the firearm count. As a result of a series of appellate decisions that are discussed infra, Judge Legg resentenced Schuyler in March 2010 to a term of 20 years' imprisonment as to the narcotics conspiracy count, leaving the consecutive five year term for the firearm count unaltered, for a total sentence of 25 years' imprisonment.
Now pending before the Court is Schuyler's motion, filed January 10, 2012, seeking a further reduction of his sentence pursuant to certain retroactive amendments to the United States Sentencing Guidelines ("Motion") (ECF 783). Judge Legg was unable to rule on the Motion before his retirement. Therefore, on November 20, 2012, the case was reassigned to me. The government did not file a response to the Motion. However, neither a response nor a hearing is necessary, because the Motion can readily be resolved on the basis of the record. See Local Rule 105.6. My ruling follows.
In June 2008, Schuyler filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See ECF 628. On March 8, 2010, Judge Legg issued a Memorandum (ECF 724) ruling on the Schuyler's § 2255 motion. In that Memorandum, Judge Legg provided a summary of the procedural history of Schuyler's case thus far. He said, in part, ECF 724 at 1-3:
Schuyler was a member of a drug trafficking conspiracy based predominantly in the O'Donnell Heights area of Southeast Baltimore. On November 23, 1999, after a 30 day jury trial, Schuyler was convicted of (i) conspiring to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841, and (ii) carrying a firearm in connection with drug trafficking in violation of 18 U.S.C. § 924(c). The Court sentenced Schuyler to life on the drug conspiracy count and sixty months consecutive on the firearms count.
Schuyler and five other defendants appealed. On November 2, 2001, the Fourth Circuit vacated the defendants' sentences based on Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Johnson, 26 Fed. Appx. 111 (4th Cir. 2001) (unpublished).*fn1 The Fourth Circuit remanded with instructions to sentence each of the defendants at or below the relevant statutory maximums found in 21 U.S.C. § 841(b)(1)(c). Id. at 119. This Court scheduled the re-sentencing for February 28, 2009. The Court continued the proceeding, however, because the Supreme Court had granted certiorari in United States v. Cotton, 261 F.3d 397 (4th Cir. 2001). [In a footnote, Judge Legg observed that the "Fourth Circuit's decision in Cotton formed the basis of its ruling in Johnson."]
In Cotton, [535 U.S. 625 (2002),] the Supreme Court ruled that an indictment rendered defective by Apprendi does not require vacation of the resulting sentence if evidence against the defendant is "overwhelming" and "essentially uncontroverted." Id. at 633 (citation and internal quotation marks omitted). Therefore, on May 23, 2003, this Court re-imposed the 2000 sentences.
On appeal, those sentences were affirmed by the Fourth Circuit. See United States v. Robinson, 390 F.3d 833 (4th Cir. 2004). The Supreme Court, however, granted the defendants' writs of certiorari and remanded to the Fourth Circuit for further consideration in light of United States v. Booker, 543 U.S. 220 (2005). See Robinson v. United States, 544 U.S. 971 (2005). On remand, the Fourth Circuit remanded the case to this Court for re-sentencing. See United States v. Robinson, 560 F.3d 550 (4th Cir. 2006).
On July 19, 2007, the Court sentenced Schuyler to 20 years on the drug conspiracy count and 5 years consecutive on the firearm count. Schuyler did not appeal his 25 year sentence.
In the § 2255 motion, Schuyler contended that, despite having agreed in 2007 to waive his right to appeal the 25-year sentence in exchange for the government's agreement not to seek a higher sentence, he had directed his defense counsel to file a notice of appeal, but that defense counsel had failed to do so. Schuyler's defense counsel averred, in response, that Schuyler had never asked him to note an appeal.
Judge Legg ruled: "To avoid the credibility contest inherent in this situation, the Court will permit Schuyler to take an appeal. Although the appeal lacks any apparent merit, that decision is for the Court of Appeals to make." ECF 724 at 5. Accordingly, on March 8, 2010, Judge Legg issued a Third Amended Judgment (ECF 726) (which is the operative judgment here), so as to restart the time to file a notice of appeal, and appointed new counsel to represent Schuyler on appeal.
Thereafter, the Fourth Circuit affirmed Schuyler's conviction and sentence. See United States v. Schuyler,407 F. App'x 649 (4th Cir.), cert. denied, 131 S. Ct. 2468 (2011). Subsequently, Schuyler filed the instant ...