United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution are motions filed by Petitioner James Orlando Johnson for a reduction of sentence (ECF No. 35) and to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 36). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, both motions will be denied.
On February 23, 2009, Petitioner was charged by indictment with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). While on pretrial release, he was arrested in Virginia and charged by indictment in the United States District Court for the Western District of Virginia with identical offenses. A superseding information filed on September 1, 2011, charged Petitioner with two counts of possession with intent to distribute cocaine base (counts one and three); using and carrying a firearm during and in relation to a drug trafficking crime (count two); and possession of a firearm by a felon (count four) based on both the Maryland and Virginia indictments.
On September 8, 2011, Petitioner entered into a written agreement with the government, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to waive indictment and venue and to plead guilty to all counts contained in the superseding information in exchange for "a sentence of 216 months (18 years) of imprisonment[, ]... consist[ing] of [a] 132 months aggregate sentence as to Counts One, Three and Four, followed by 84 months as to Count Two, to run consecutive to the other counts." (ECF No. 26, at 6). Petitioner acknowledged his understanding that "the Court will determine a sentencing guidelines range for this case... pursuant to the Sentencing Reform Act of 1984" and that he would be "sentence[d] pursuant to the Sentencing Reform Act, " taking into account the advisory guidelines range in establishing a reasonable sentence. ( Id. at 4). The agreement contemplated that counts one, three, and four would be grouped, that the base offense levels for those counts was 22, and that the final offense level was 24. ( Id. at 5-6). There was no agreement as to Petitioner's criminal history.
Attached to the plea agreement was a statement of facts, which set forth the circumstances related to the Maryland conduct, occurring on July 20, 2006; the Virginia conduct, occurring on August 3, 2010; and establishing that Petitioner was prohibited from possessing a firearm due to an April 2, 2007, conviction in the Circuit Court for Prince George's County, Maryland, for possession of cocaine, and that he knowingly possessed a firearm in relation at the time of the Virginia conduct. Petitioner separately signed the statement of facts, acknowledging that he had reviewed it and agreed that it was correct. (ECF No. 26-1).
At a Rule 11 hearing on September 20, 2011, Petitioner was advised of the charges contained in the superseding information; he acknowledged the rights he was required to forfeit by pleading guilty; and the court accepted his plea. On November 22, 2011, consistent with the written plea agreement, Petitioner was sentenced to a total term of imprisonment of 216 months - consisting of 66 months on count one, a consecutive 66-month term on count three, a concurrent 77-month term on count four ( i.e., a 132-month aggregate term as to counts one, three, and four), and a consecutive term of 84 months as to count two - to be followed by a five-year term of supervised release. (ECF No. 33). Petitioner did not file a notice of appeal.
On July 16, 2012, he filed the pending motion for reduction of sentence, arguing that, pursuant to the Supreme Court's decision in the consolidated cases of Dorsey v. United States and Hill v. United States, ___ U.S. ___, 132 S.Ct. 2321 (2012), he is entitled to resentencing under the Fair Sentencing Act of 2010 ("FSA"). (ECF No. 35). One month later, Petitioner filed the pending motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, asserting a claim based on ineffective assistance of counsel. (ECF No. 36). The government responded, in effect to both motions, on April 15, 2013 (ECF No. 46), and Petitioner filed a reply on May 6, 2013 (ECF No. 47). On September 3, 2013, Petitioner filed a supplemental memorandum, contending that, pursuant to the Supreme Court's decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), "[t]his court must rightfully exclude any enhancements as it relates to the 924(c) offenses and exclude any enhancement as it relates to the drug evidence in this case because the petitioner's superseding [information] did not contain any penalties as to the drug prohibited act." (ECF No. 50, at 5).
II. Motion for Reduction of Sentence
In Dorsey and Hill, 132 S.Ct. at 2335, the Supreme Court held that "Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders." As relevant here, the FSA, which became effective on August 3, 2010, changed the amount of cocaine base required for application of a mandatory five-year minimum sentence from 5 grams to 28 grams. See 21 U.S.C. § 841(b)(1)(B)(iii). Noting that his offenses took place prior to (and on) the effective date, Petitioner contends that he is entitled to resentencing because his "two drug crimes involved a total of 22 grams of crack cocaine, which is below the [threshold triggering the] 5 year minimum term now established by the FSA." (ECF No. 36-1, at 10). In opposing this motion, the government argues that "full effect was given to the FSA amendments at the time of the agreement and at sentencing" (ECF No. 46, at 7) and, in any event, that a reduction of sentence is not authorized because Petitioner was sentenced pursuant to a plea agreement under Fed.R.Crim.P. 11(c)(1)(C).
Although the sentencing transcript has not been prepared, there is little reason to doubt that a post-FSA guidelines range was calculated and considered. The written plea agreement was entered after emergency guidelines amendments implementing the FSA's changes went into effect, see 75 Fed. Reg. 66188 (Oct. 27, 2010), and it references post-FSA base offense levels (ECF No. 26, at 5). Moreover, Petitioner was sentenced after the permanent guidelines amendments took effect on November 1, 2011, see 76 Fed. Reg. 41332-35 (July 13, 2011), and a July 31, 2012, memorandum of the probation department, which the government attaches to its opposition papers, reflects that he was considered for a sentence reduction and found not eligible because the drug quantity attributed to him "results in the same [base offense level]" (ECF No. 46-2).
Even if there was some error in calculating the applicable guidelines range, however, the court has no authority to reduce Petitioner's sentence because it was "based on" a written plea agreement pursuant to Rule 11(c)(1)(C). As the United States Court of Appeals for the Fourth Circuit recently explained:
Resolution of the question raised here rests on the proper application of Freeman v. United States, ___ U.S. ___, 131 S.Ct.
2685 , 180 L.Ed.2d 519 (2011), to the case at hand. In Freeman, the Supreme Court held that a defendant sentenced in accord with Rule 11(c)(1)(C)... is eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) if his sentence had been "based on" a Sentencing Guidelines range that had been lowered. But if the sentence was "based on" the agreement of the parties, the defendant is not eligible for a § 3582(c)(2) sentence reduction. The Freeman Court divided 4-1-4, with a plurality concluding that defendants who enter into Rule 11(c)(1)(C) pleas are not categorically barred from eligibility for a § 3582(c)(2) sentence reduction. Justice Sotomayor concurred in the judgment. Her opinion, narrower than that of the plurality, controls. See United States v. Brown , 653 F.3d 337, 340 (4th Cir. 2011) (applying rule of ...