Babb v. United States

WALTER BABB, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Criminal Action No. ELH-04-0190

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 4, 2021

MEMORANDUM OPINION

This Memorandum Opinion resolves the "Motion to Reduce Sentence Pursuant To 18 U.S.C. § 3582(c)(1)(A)(i) Or, In The Alternative, For Imposition Of A Reduced Sentence Pursuant To Section 404 Of The First Step Act," filed by counsel on behalf of defendant Walter Babb. ECF 248 (the "Motion").¹ The Motion is supported by more than 50 exhibits.

Babb has been incarcerated since April 2004. He is serving a sentence of life imprisonment plus 60 months for drug trafficking and related offenses, imposed in August 2007 by Judge Andre M. Davis.² Babb seeks a sentence reduction to 25 years in one of two ways: based on compassionate release, under 18 U.S.C. § 3582(c)(1)(A)(i), due to "extraordinary and compelling reasons" or, alternatively, under § 404 of the First Step Act, Pub. L. 115-391, 132 Stat. 5239 (2018). See ECF 248 at 5.

The government opposes the Motion. ECF 254. Defendant has replied. ECF 259. In addition, Babb has filed multiple notices of supplemental authority (ECF 260; ECF 262; ECF 266; ECF 268; ECF 269; ECF 273) and a supplement to his Motion (ECF 261), to which the government responded (ECF 263) and defendant replied (ECF 267). In response to a request from the Court (ECF 270), both parties also provided the Court with their respective positions as to the proposed Guidelines calculations that would apply to Babb if he were sentenced today. See ECF 272; ECF 274.

No hearing is necessary to resolve the Motion. For the reasons that follow, I shall construe the Motion under both § 3582(c)(1)(A)(i) and § 404. And, I shall grant the Motion in part and shall reduce defendant's sentence to 30 years of imprisonment.

I. FACTUAL AND PROCEDURAL BACKGROUND³

Babb and two codefendants were charged with various drug and firearms offenses in an Indictment issued on April 7, 2004. ECF 1. Superseding indictments were returned on August 11, 2004; September 1, 2004; and April 6, 2006. See ECF 10, 24, 106. The Third Superseding Indictment charged Babb and his codefendant, James Moore, with conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846 (Count One); conspiracy to possess firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(o) (Count Two); two counts of discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Counts Three and Four); two counts of use of a firearm to commit murder in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(j) (Counts Five and Six); and possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Seven).

The facts of this case were recited in this Court's Memorandum Opinion of April 10, 2012, with regard to motions under 28 U.S.C. § 2255 filed by Babb and Moore. See ECF 197.⁴ The facts here constitute only a brief summary, and derive primarily from ECF 197 as well as the summary of facts contained in the Presentence Investigation Report ("PSR"). ECF 271.⁵

From at least 2002 through 2004, Babb was part of a drug trafficking organization that distributed large quantities of powder cocaine and cocaine base in Maryland. ECF 271, ¶¶ 9-10. For a period of months from late 2002 to early 2003, for example, Babb bought and distributed a half kilogram of crack cocaine per week. Id. ¶ 9. During the conspiracy, Babb also traveled to El Paso, Texas to broker high-volume cocaine purchases. Id. ¶ 10.

In October 2003, Babb and Moore traveled to El Paso, along with two other individuals, Willie Robinson and Alexandria Withers, to pursue a drug transaction with an individual named Ray Sanchez. Id. In late October 2003, Babb, Moore, Robinson, and Withers left El Paso and returned to Babb's house in Greensboro, North Carolina. Id. ¶ 27. According to several witnesses, half the deal with was done in El Paso and the other half of the deal was to be completed in Greensboro on November 5, 2003. Id. ¶¶ 10, 28. Apparently, Moore and Robinson had a monetary dispute. ECF 182-1 at 9.

On November 6, 2003, Porsha Harper, Babb's girlfriend, agreed to drive Moore to New York. Id. at 10. While in Maryland, the vehicle, a Dodge Intrepid, was stopped by Maryland State trooper Jacob Cameron for speeding. ECF 197 at 4. At the time, Moore was driving. Id. Moore could not produce a driver's license. Id. Trooper Cameron patted Moore down after noticing a bulge in one of his pockets, and he discovered approximately $1,000 in Moore's pocket. Id. The officer was suspicious because of the cash; discrepancies in statements by Moore and Harper regarding Moore's name, their destination, and ownership of the Intrepid; and he noted that the rear end of the vehicle was unusually low. Id. The trooper called for backup, and two additional officers responded. Id.

Trooper Cameron continued to speak with Harper, who appeared shaken. Id. He commented on the unusually low rear end of the vehicle. Harper then asked the trooper if he wanted to look in the trunk. The officer answered in the affirmative. Id. Harper then opened the trunk, revealing two corpses. Id. The bodies were later identified as those of Robinson and Withers, both of whom had both been shot to death. Id. Each body was wrapped in bedding, plastic bags, and a shower curtain liner. Id. The items were determined to have come from Babb's residence in North Carolina. Id. at 4-5.

Moore's fingerprints were recovered from the bags wrapped around the bodies as well as a separate trash bag recovered from the trunk and money wrappers seized from the vehicle. ECF 271, ¶¶ 17, 18, 21. Other items in the trunk, including a black shower curtain and a floral bathmat, were also identified as coming from Babb's residence. Id. ¶ 18. But, his fingerprints were not recovered. ECF 197 at 5.

Harper and Moore were taken into custody at the scene. ECF 271, ¶ 12.⁶ In a search of Moore incident to arrest, a substantial amount of cash was recovered. Id. ¶ 16. Some of the cash also appeared to be bloodstained. Id. Moore informed the officers that there was over $100,000 in cash inside a duffel bag in the vehicle that was to be used to pay for cocaine in New York. Id. ¶ 14. In a post-arrest statement, Moore explained that he was a drug dealer transporting drugs for Sanchez. Id.

Several other significant items were recovered from the Intrepid, including shell casings, a shirt stained with Robinson's blood, a map to El Paso, a woman's boot containing $2,000, a calendar with Babb's phone number written on it, and a pen inscribed with the name of Sanchez's El Paso auto-repair business. ECF 197 at 5.

Following the arrest, Babb paid Harper's bail ($21,000 in cash) and sent at least $35,000 to Davita Bush, another acquaintance of Moore, with whom he sold drugs. ECF 271, ¶¶ 10, 23, 40, 41. In addition, on two occasions, Bush traveled to Babb's home in North Carolina to obtain quantities of crack cocaine and money from him. Id. ¶ 42. Babb also changed his cell phone number, moved out of his house, and disposed of some of his furniture Id. ¶ 32. Robinson's DNA was later recovered from the cushion of one of the discarded couches. Id.

Babb was arrested in Greensboro on August 2004. Id. ¶ 47. After his arrest, officers executed a search warrant at his home and discovered two assault rifles, a Glock pistol, a scale, some Ecstasy pills, and an identification card for Babb. Id.

On September 8, 2006, a week before a motions hearing, the government filed a sentencing enhancement notice for Babb under 21 U.S.C. § 851 (the "§ 851 Notice"). ECF 117. The § 851 Notice stated that Babb had five prior felony drug offenses. See ECF 271, ¶¶ 123, 129, 132, 135. Notably, one of the prior convictions that qualified as a predicate offense does not appear in the PSR. But, according to the government's § 851 Notice, in 1993 Babb was convicted for possession with intent to distribute 40.9 grams of cocaine and trafficking of cocaine, for which he received a sentence of ten years' imprisonment. ECF 117, ¶ (a).

Babb and Moore proceeded to a jury trial that began on April 2, 2007. The government dismissed Counts Five and Six prior to submission of the case to the jury. ECF 197 at 7. On April 19, 2007, the jury convicted Babb of Counts One, Two, and Seven, but the jury was unable to reach a verdict as to Counts Three and Four with respect to Babb. ECF 135. As to Count One, the jury determined that 5 kilograms or more of cocaine and 50 grams or more of crack cocaine were attributable to Babb. Id. Moore was convicted of Counts One, Two, Three, Four, and Seven. The government elected not to re-try Babb as to Counts Three and Four.

According to the PSR, Babb had a base offense level of 38 for Count One, the drug conspiracy count, pursuant to § 2D1.1(c)(1) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), based on a finding that his criminal activity involved over 1.5 kilograms of crack cocaine and 20 kilograms of powder cocaine. ECF 271, ¶ 53. And, he had a base offense level of 24 for Count Two (gun conspiracy). Id. However, in determining Babb's Guidelines range for Counts One and Two, the PSR applied the murder cross-reference provision, pursuant to U.S.S.G. § 2D1.1(d)(1) and § 2A1.1(a), based on the murders of Withers and Robinson. Id. ¶ 53. In particular, U.S.S.G. § 2D1.1(d)(1) states: "If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111, had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1." Therefore, the PSR reflected a base offense level of 43. ECF 271, ¶¶ 53, 61.

Babb had a Criminal History Category of VI based on 23 criminal history points. Id. ¶ 138. He also qualified as a career...