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United States v. Clarence Hicks

April 19, 2013


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


In 1999, a jury convicted Clarence Hicks of conspiracy to distribute cocaine and cocaine base ("crack"), based on his involvement in a long-running, violent narcotics distribution organization operating in and around the O'Donnell Heights public housing community in Baltimore, Maryland. On March 22, 2000, Judge Benson E. Legg sentenced Hicks to a term of imprisonment of 360 months (i.e. thirty years), which was at the bottom of the then-applicable guidelines range of 360 months to life, to be followed by five years of supervised release.*fn1 The conviction and sentence were affirmed by the Fourth Circuit in a consolidated appeal that involved several co-defendants. See United States v. Johnson, 26 F. App'x 111 (4th Cir. 2001), cert. denied, 535 U.S. 949 (2002).

In 2002, Hicks challenged his criminal conviction and sentence by way of a post-conviction petition under 28 U.S.C. § 2255. The district court did not rule expeditiously on Hicks's § 2255 petition and, in 2005, the Fourth Circuit issued a writ of mandamus, directing the district court to resolve Hicks's petition within sixty days. See In re Hicks, 118 F. App'x 778 (4th Cir. 2005); see also 28 U.S.C. §1657(a). The district court subsequently denied Hicks's § 2255 petition, and Hicks did not appeal from that decision. See In re Hicks, 145 F. App'x 433 (4th Cir. 2005) (denying writ of mandamus directing district court to address allegedly unresolved claim of actual innocence, because Hicks had not filed a notice of appeal from denial of § 2255 petition). However, Hicks filed a motion under Fed. R. Civ. P. 60(b), seeking post-judgment relief from the district court's denial of his § 2255 petition. Because the district court did not expeditiously resolve the Rule 60(b) motion, the Fourth Circuit issued another writ of mandamus, directing the district court to resolve the motion within sixty days. See In re Hicks, 279 F. App'x 236 (4th Cir. 2008). The district court denied the Rule 60(b) motion, and Hicks's appeal from that decision was dismissed for want of a certificate of appealability or any ground for such a certificate to issue. See United States v. Hicks, 300 F. App'x 246 (4th Cir. 2008), cert. denied, 130 S. Ct. 207 (2009). In 2009 and 2010, Hicks filed two other Rule 60(b) motions, seeking to reopen the § 2255 proceeding on the basis of "fraud, mistake, and newly discovered evidence." The district court denied these Rule 60(b) motions as untimely and lacking in merit, and Hicks's appeals from both decisions were again dismissed for want of a certificate of appealability. See In re Hicks, 389 F. App'x 328 (4th Cir. 2010); In re Hicks, 421 F. App'x 276 (4th Cir.), cert. denied, 132 S. Ct. 833 (2011).

In the meantime, in 2007 the United States Sentencing Commission amended the sentencing guidelines relevant to Hicks's crime of conviction, and gave the amendment retroactive effect. See U.S.S.G., Amendment 706 (eff. Nov. 1, 2007). Accordingly, in 2008, the district court appointed the Federal Public Defender to review Hicks's sentence to determine whether he was eligible for a reduction in sentence, due to the guidelines amendments, pursuant to 18 U.S.C. § 3582(c)(2). See ECF 648, 668, 676. The Public Defender represented that the applicable amended guidelines range for Hicks's sentence was 324 to 405 months and requested, on Hicks's behalf, that he be resentenced, again at the bottom of the applicable guidelines, to a sentence of 324 months.*fn2 See ECF 675. The government did not oppose this reduction, see ECF 689, and so, by Order entered on June 23, 2009 (ECF 695), Judge Legg reduced Hicks's sentence of imprisonment from 360 months to 324 months.

Four motions are now pending for decision by the Court: (1) a letter from Hicks to Judge Legg dated March 25, 2012, docketed on March 29, 2012, as a "Motion for Reconsideration re: sentence reduction" ("Sentence Reduction Motion") (ECF 788); (2) a "Motion to Correct Sentence" pursuant to 18 U.S.C. § 3582(c)(2), dated April 17, 2012 ("First § 3582(c)(2) Motion") (ECF 789); (3) a second motion filed pursuant to § 3582(c)(2) on October 9, 2012, which Hicks described as providing "a more indepth [sic] view of the facts submitted in his original pleading pursuant to . . . § 3582" ("Second § 3582(c)(2) Motion") (ECF 805); and a "Motion to Reopen Case Pursuant [to] Rule 60(b)(6)," filed on November 15, 2012 ("Fourth Rule 60(b) Motion") (ECF 808). 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.

Judge Legg was unable to rule on these matters before his retirement. Therefore, on November 20, 2012, the case was reassigned to me. My rulings follow.


A. Original Sentencing

In order to place Hicks's contentions in context, it is helpful to provide background based on review of the record, including the Transcript of Hicks's sentencing (ECF 449); the Pre-Sentence Report ("PSR"), which was prepared as of January 12, 2000, and revised February 9, 2000; and the then-applicable United States Sentencing Guidelines.

In January 1999, almost nine months before trial, the government filed a "Joint Information on Enhanced Penalties Pursuant to 21 U.S.C. §§ 841(b) and 851(a)(1)" ("Enhancement Notice") (ECF 164), by which it gave notice that it intended to seek a statutory enhanced sentence against Hicks if he was convicted of a controlled substance offense.*fn3 The government stated in the Enhancement Notice that it intended to seek a mandatory life sentence, pursuant to 21 U.S.C. § 841(a)(1)(A), based on an amount of crack exceeding the applicable statutory threshold, combined with any two of three prior Maryland state convictions: a conviction for manufacture or distribution of a controlled dangerous substance arising from an arrest on November 7, 1989 (the "1989 Conviction"), and two other convictions for controlled dangerous substance offenses in the early 1990s.

In convicting Hicks of conspiracy to distribute cocaine and crack, the jury was not asked to make, and did not make, any finding as to the amount of cocaine or crack attributable to Hicks. See Verdict Sheet (ECF 356). At the time of Hicks's sentencing, the determination of facts, such as narcotics quantity, that could subject a defendant to statutory sentence enhancements was a matter for the sentencing judge. See, e.g., United States v. Williams, 152 F.3d 294, 300-01 (4th Cir. 1998). Moreover, a sentencing judge was entitled to adopt a recommendation in a PSR as to a finding of drug quantity "'without . . . specific inquiry or explanation,'" in the absence of an objection to the PSR's recommendation. Id. at 301 (citation omitted).

Hicks's PSR indicated that Hicks "could be held accountable for at least 3 kilograms of cocaine base." PSR ¶ 66. Under the Sentencing Guidelines at the time, attribution to a defendant of 1.5 kilograms or more of cocaine base dictated a base offense level of 38. See U.S.S.G. (1998), § 2D1.1(c). Three kilograms of crack was (and is) more than sufficient to trigger statutory enhanced penalties under 21 U.S.C. § 841(b)(1)(A). The statutory threshold for enhancement under § 841(b)(1)(A) at that time was 50 grams of crack.*fn4

As discussed in more detail, infra, Hicks's trial and sentencing predated Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Following Apprendi, "in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt." United States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc) (footnote omitted).

At sentencing, the defense did not challenge the PSR's determination of three kilograms of crack, and did not object to the resulting base offense level of 38.*fn5 Over the defense's objections, Judge Legg ruled that Hicks was subject to two upward adjustments to his base offense level, of two levels each, leading to an adjusted base offense level of 42. See Transcript at 16-29. The first of the two disputed adjustments was a two-level increase under U.S.S.G. § 3B1.1(c) for a managerial role in the conspiracy. See PSR ¶ 70. Section 3B1.1(c) authorizes a two-level upward adjustment to the base offense level "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity . . . ." As to this adjustment, Judge Legg said, Transcript at 24:

Mr. Hicks did exercise management responsibility over the property and assets of the criminal organization because, for one reason, he was responsible with [a co-defendant] for making . . . wholesale purchases of drugs in New York, which was the primary asset of the organization, that was then sold at a retail and also a sub-wholesale level here in the State of Maryland.

The second disputed adjustment was a further two-level increase for obstruction of justice under U.S.S.G. § 3C1.1, because Hicks took the stand at trial and testified falsely concerning his role in the conspiracy. As to this adjustment, Judge Legg stated, Transcript at 28-29:

Application Note Four states that the following is a non-exhaustive list of examples of the type of conduct to which this adjustment applies. Number B states, committing perjury.

Here, Mr. Hicks was charged in Count Three with participating in a drug conspiracy along with . . . others. Mr. Hicks took the stand and denied that he was involved in the conspiracy, denied that he had transported Tide boxes of cocaine from New York, denied that he was involved in any way.

The jury saw it otherwise and convicted Mr. Hicks under Count Three, finding beyond a reasonable doubt that he was, in fact, a willing, knowing participant in the conspiracy.

Accordingly, by denying his conduct, he committed perjury as defined in Application Note Two and Four and testified willfully and materially in a way that was false. Accordingly, [the probation officer who prepared the PSR] was correct in adding the two level enhancement for obstruction of justice.

In addition, Judge Legg determined that Hicks had a criminal history category of II. See id. at 31-33. Based on an adjusted base offense level of 42 and a criminal history category of II, the applicable sentencing guidelines range was 360 months to life. See id.

Judge Legg proceeded to consider the applicable statutory sentence enhancements. As noted, the government had filed an Enhancement Notice stating that it intended to seek a sentence of life imprisonment on the basis of any two of Hicks's three prior convictions for felony drug offenses. Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of an offense involving the requisite threshold amount of crack (at the time of Hicks's sentencing, 50 grams; now, 280 grams) and who has previously been convicted of two or more felony drug offenses is subject to a mandatory life sentence. A defendant convicted of an offense involving the same threshold amount of crack who has only one prior felony drug offense conviction is subject to a mandatory minimum of 20 years' imprisonment, and is exposed to a potential life sentence. See 21 U.S.C. § 841(b)(1)(A). A defendant who commits an offense involving the threshold amount of crack but who does not have any prior felony drug offense convictions is subject to a mandatory minimum of ten years' imprisonment, and remains exposed to a potential life sentence. See id. In contrast, a defendant convicted as to an amount below the statutory thresholds is exposed to a potential maximum sentence of 20 years' imprisonment, unless he has one or more prior felony drug offense convictions, in which case he is exposed to a potential maximum sentence of 30 years' imprisonment. See id. § 841(b)(1)(C).*fn6

The defense conceded at sentencing that Hicks had three prior convictions. See Transcript at 37-38. But, the defense raised two challenges to the statutory sentence enhancements. First, defense counsel contended that the defense did not properly receive the Enhancement Notice. In this regard, Hicks's counsel at the time of the filing of the Enhancement Notice subsequently withdrew, and Hicks was represented by other counsel at trial and at sentencing. At sentencing, defense counsel reported that he previously had raised with the prosecutor the issue of the government's alleged failure to give proper notice of the enhancements, stating: "I remember addressing this matter to [the prosecutor's] attention, saying, are you going to be filing with regard to the other defendants? He said, we filed with regard to all of them. I said, . . . I've been through this entire filed provided to me by [prior defense counsel]. It's very complete and very well organized and there's nothing concerning mandatory penalties." Transcript at 34.*fn7

Second, the defense disputed that two or more of Hicks's prior convictions qualified as prior felony drug offenses, so as to subject him to a mandatory life sentence under § 841(b)(1)(A). In particular, the defense expressly conceded that the 1989 Conviction counted as a prior felony drug offense for purposes of sentence enhancement. See id. However, as to the two convictions from the early 1990s, the defense argued that they could not be counted as "prior" offenses for purposes of sentence enhancement, because at trial the government had, over the defense's objections, successfully introduced into evidence the conduct underlying those two convictions as acts performed as part of the conspiracy charged in the underlying federal case. See id. at 38.

In response, the government conceded that the two convictions from the 1990s "were intrinsic to the conspiracy, were part of the conspiracy as a whole. And so [defense counsel] is correct, that there would simply only be one conviction that would be usable in this case, the 1989 conviction. So we would not be pressing the mandatory." Id. at 39. Accordingly, Judge Legg ruled that Hicks was not subject to a mandatory life sentence under § 841(b)(1)(A).*fn8 See Transcript at 39. Judge Legg also stated: "This means that I need not decide the issue as to whether or not [prior defense counsel] received the pretrial enhancement notice." Id.

The government requested a sentence "somewhere in the middle of the guidelines range" of 360 months to life. Id. at 41. But, Judge Legg sentenced Hicks to the bottom of the guidelines range, stating: "My view is that Mr. Hicks should be placed at the low end of the range, simply because . . . 360 months is, it's a long, long time and constitutes a substantial punishment for the offense that Mr. Hicks committed." Id. at 43. As to his sentence of 360 months, Judge Legg observed: "This is a substantial sentence and adequately punishes Mr. Hicks for having participated in a widespread, major drug ...

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