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United States v. Robinson

United States District Court, D. Maryland

August 13, 2019

UNITED STATES OF AMERICA Respondent
v.
EVERETT F. ROBINSON, JR. Petitioner

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         Everett F. Robinson, Jr., through counsel, has filed a Motion for Imposition of a Reduced Sentence Pursuant to Section 404 of the First Step Act of 2018.[1] ECF No. 145. He asks the Court to reduce his term of imprisonment from 210 months to 188 months and his term of supervised release from five years to four years. See Id. The Government opposes. ECF No. 150. For the following reasons, the Court will GRANT Robinson's Motion.

         I.

         On December 10, 2003. Robinson was found guilty by a jury of Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine and Cocaine Base, in violation of 21 U.S.C. § 846, and Possession with Intent to Distribute Cocaine and Cocaine Base, in violation of 21 U.S.C. § 841. ECF No. 42. At sentencing, the Court adopted the factual findings and advisory guideline application in the Presentence Report, which determined Robinson's base offense level involving drugs to be 34, per U.S.S.G. § 2D1.1 See Sentencing Transcript at 67, ECF No. 83; Presentence Report at ¶ 22. Robinson received a two-level upward adjustment for obstruction of justice because he testified falsely at trial, and an additional two-level upward adjustment for obstruction of justice because he attempted to run over an officer while trying to flee the scene of his arrest. Presentence Report at ¶¶ 26, 27. Accordingly, Robinson's final offense level was determined to be 38. ECF No. 77; Statement of Reasons at 1. While Robinson unquestionably qualified as a career offender under U.S.S.G. § 4B1.1, because his offense level under U.S.S.G. § 2D1.1 involving drugs (i.e., 38) resulted in a higher offense level than that determined under U.S.S.G. § 4B1.1 for career offenders (i.e., 37). the higher offense level based on the § 2D1.1 drug guidelines was held applicable. Presentence Report at ¶ 41-42. The bottom line: Robinson had a total offense level of 38 and a criminal history category of VI, which resulted in a sentencing range of 360 months to life in custody. Presentence Report at Sentencing Recommendation.

         The Court sentenced Robinson to the low end of the guidelines range-360 months-and 5 years of supervised release. See Sentencing Transcript at 67; Statement of Reasons at 1; Judgment, ECF No. 77. However, during sentencing, the Court stated that it would impose an alternative sentence of 264 months if the Supreme Court ruled that the guidelines were merely advisory. See Sentencing Transcript at 78. Later that very same day, the Supreme Court issued its opinion in United States v. Booker, 542 U.S. 220 (2005), ruling that the guidelines were indeed only advisory. Accordingly, this Court's alternative sentence of 264 months' imprisonment was imposed. ECF No. 79.

         On September 16, 2009. the Court granted Robinson's Motion to Reduce Sentence pursuant to Amendment 706 to the U.S. Sentencing Guidelines. ECF No. 109; ECF No. 110. Robinson's sentence was further reduced to 210 months imprisonment. ECF No. 110.

         On March 16, 2015, Robinson filed a Motion for Modification of Sentence, seeking a reduction in his sentence pursuant to Amendment 782. ECF No. 127. On May 16, 2017, the Government filed an Opposition, arguing that Robinson was ineligible for the reduction because his 210-month sentence of imprisonment was lower than his amended guideline range when calculated using his career offender status. ECF No. 137. Robinson filed no direct reply to this Motion, instead filing a Motion for Nunc Pro Tunc Order and Motion Under Federal Rule of Civil Procedure 60(b)(6), asserting that his career offender status should be removed. ECF No. 138. On August 9, 2017, the Court issued a Memorandum Opinion and Order denying both of Robinson's Motions. ECF Nos. 140, 141. His term of imprisonment remained at 210 months.

         On April 29, 2019, Robinson filed a Motion for Imposition of a Reduced Sentence Pursuant to Section 404 of the First Step Act of 2018. ECF No. 145. After the Court granted two Motions for Extension of Time, the Government filed its Opposition on June 6, 2019. ECF No. 150. Robinson filed his Reply on June 19, 2019. ECF No. 151.

         II.

         In 2010, the Federal Government enacted the Fair Sentencing Act of 2010. Pub. L. No. 111-220, 124 Stat. 2372 (2010) ("FSA"). The FSA increased the amounts of cocaine base, otherwise known as crack cocaine, necessary to trigger mandatory minimum sentences for certain trafficking offenses. See Id. Specifically, the FSA increased from five to twenty-eight grams the threshold quantity of crack cocaine necessary to implicate the five-year mandatory minimum sentence. See Id. at § 2(a). The FSA also increased from fifty to 280 grams the amount of crack cocaine necessary to trigger the ten-year mandatory minimum sentence. See Id. Accordingly. offenses involving more than twenty-eight but less than 280 grams of crack cocaine were made subject to a sentencing range of five to forty years, and offenses involving more than 280 grams of crack cocaine were made subject to a sentencing range of ten years to life. See 21 U.S.C. § 841(b). The FSA had the effect of reducing the sentencing disparity between offenses for crack cocaine and powder cocaine from 100-to-1 to 18-to-1. See Dorsey v. United States, 567 U.S. 260, 269 (2012).

         On December 21, 2018, the Federal Government enacted the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ("First Step Act"), which states that courts "may, on motion of the defendant. . . impose a reduced sentence" for a criminal defendant who (1) was convicted of a "covered offense," i.e., a "violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the [FSA]"; and (2) the offense was committed before August 3, 2010; and (3) the defendant did not already receive a reduction under the FSA or the First Step Act. See First Step Act, § 404, 132 Stat. 5194, 5222. Section 404 of the First Step Act also made retroactive the FSA's revisions of the statutory ranges for defendants convicted of offenses involving crack cocaine. See First Step Act, § 404(b). Accordingly, the violation of a criminal statute whose statutory penalties were revised by the FSA was deemed to be a "covered offense" within the First Step Act, meaning that defendants previously convicted of such a "covered offense" would be eligible to seek a sentence reduction under the First Step Act. See Id. § 404(a).

         The parties disagree over whether Robinson is eligible for a sentence reduction under the First Step Act. The Government contends that he has not been convicted of a "covered offense." ECF No. 150 at 13-15. Arguing that "the key question is whether the actual 'violation' would have had a different statutory penalty had the higher quantity thresholds of the [FSA] been in place when it was 'committed.'" Id. at 15, the Government notes that Robinson was found to have been in possession of 312 grams of crack cocaine, an amount that would have subjected him to the sentencing range often years to life regardless of the statutory modifications in the FSA. See id. at 14-15. Robinson counters that a "covered offense" under the First Step Act is defined by the elements of the offense of a defendant's conviction, as laid out in his indictment, not by the defendant's particular conduct. ECF No. 151 at 11-13. The Court agrees with Robinson.

         Nearly all other district courts that have considered motions to reduce sentences under the First Step Act have adopted the elemental approach in determining what qualifies as a "covered offense."

[I]n determining whether a defendant is eligible for relief under ยง 404 of the First Step Act, the sentencing court should look to whether the offense of conviction was modified by the Fair Sentencing Act of 2010 to determine eligibility; it should refrain from delving into the particulars of the record to determine how this specific defendant committed his or her offense of conviction, and how those facts would ...

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