United States v. Allen

1

UNITED STATES OF AMERICA, v. MARIO L. ALLEN, Defendant.

CRIMINAL No. 3:03cr394 (DJN)

United States District Court, E.D. Virginia, Richmond Division

June 13, 2022

MEMORANDUM OPINION

David J. Novak United States District Judge

This matter comes before the Court on Defendant Mario Allen's Motion to Reduce Sentence Pursuant to the First Step Act of 2018 (ECF No. 1674), moving the Court to reduce his sentence from life imprisonment to time served. For the reasons that follow, Defendant's Motion will be GRANTED IN PART and DENIED IN PART. The Court will not reduce Defendant's life imprisonment sentence for Count One, but it will reduce Defendant's sentence for Count Two from life imprisonment to forty (40) years' imprisonment.

I. BACKGROUND

A. Factual Background

Defendant operated as a street-level distributor of crack cocaine in an organization known as the Third Ward Gang in Petersburg Virginia, since at least 2000 until his arrest for the instant offenses on August 29, 2001. (January 15, 2020 Presentence Investigation Report (“PSR”) (ECF No. 1641-1) ¶¶ 42, 50, 69.) Members of the drug distribution organization, including Defendant, carried firearms to intimidate rivals and defend themselves and their drug proceeds. (PSR ¶ 45.) In particular, the Third Ward gang had an ongoing conflict with a rival gang, the Carter Boys, over drug territory, which routinely resulted in acts of violence between the two groups. (PSR ¶ 45.)

On August 28, 2001, Defendant participated in the murder of Robert Brabson in Petersburg, Virginia. (PSR ¶ 50.) That day, Defendant, accompanied by fellow members of his Third Ward Gang, drove by a location used by the rival gang to distribute drugs. There, they saw a rival gang member and began shooting at him. (PSR ¶ 50.) A bullet struck and killed Brabson, a bystander, instead. (PSR ¶ 50.) Defendant subsequently pled guilty to Accessory After the Fact to Murder, a misdemeanor, in the Circuit Court for the City of Petersburg, Virginia. That court sentenced him to 12 months' imprisonment. (PSR¶¶ 50, 69.)

B. Procedural History

On March 2, 2004, a grand jury returned a two-count Third Superseding Indictment against Defendant and seventeen others for Conspiracy to Violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. § 1962(d) (“Count One”), and Conspiracy to Distribute and Possess with Intent to Distribute 50 or More Grams of Cocaine Base, in violation of 21 U.S.C. § 846 (“Count Two”). (Third Superseding Indictment (“Indictment”) (Dkt. No. 379).) The predicate crimes underlying the RICO violation in Count One charged that Defendant conspired to commit multiple acts involving murder and drug trafficking. (Indictment at 5.) On August 3, 2004, following a seven-day trial, a jury found Defendant guilty of both counts. (Verdict (Dkt. No. 685).) Specifically, the jury found that the Government had proven beyond a reasonable doubt that Defendant had committed the following predicate offenses underlying the RICO charge in Count One: (1) the First Degree Murder of Robert Brabson, in violation of Va. Code §§ 18.2-18 and 18.2-32; and (2) Conspiracy to Distribute 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). (Verdict at 3-4.)

At the time of his sentencing, Count One carried a statutory maximum sentence of life imprisonment based on the statutory maximum sentences for each of the two predicate offenses. Count Two carried a mandatory minimum of ten years' imprisonment and a maximum sentence of life imprisonment. (PSR at 1.) Defendant faced a sentencing guideline range of Life, based on a Combined Offense Level of 44 and a Criminal History Category VI. (PSR ¶¶ 114-16.) On November 17, 2004, United States District Judge James R. Spencer sentenced Defendant to a term of Life imprisonment on each count, to run concurrently to each other and with his then-present state sentence, followed by concurrent five-year terms of supervised release on each count. (Judgment (Dkt. No. 787).)

C. Defendant's Motion for First Step Act Relief

On December 23, 2019, Defendant filed a Motion to Appoint Counsel, requesting that the Court appoint an attorney to represent him in his Motion for relief under the First Step Act. (ECF No. 1636.) The Court then appointed the Federal Public Defender to represent Defendant for the purpose of the First Step Act and ordered the United States Probation Office to prepare a First Step Act Worksheet. (ECF No. 1637.)

On November 30, 2020, Defendant, through his appointed counsel, filed the instant Motion under § 404(b) of the First Step Act, asking the Court to reduce his sentences for both counts and to reduce his term of supervised release from five years to four years. (Def.'s Mot. to Reduce Sentence Pursuant to the First Step Act (“Def.'s Mot.”) (ECF No. 1674) at 1.) Defendant argues that both Count One and Count Two constitute covered offenses under the First Step Act of 2018, because the Fair Sentencing Act of 2010 modified the statutory penalties for controlled substance offenses, and the First Step Act of 2018 allows the Court to retroactively impose those modified statutory penalties for offenses that occurred before the Fair Sentencing Act's enactment on August 3, 2010. (Def.'s Mot. at 1-2.) Specifically, Defendant argues that the First Step Act covered Count One, because one of the underlying predicates involved the distribution ofcrack cocaine. Because both convictions constitute covered offenses, Defendant further argues that the Court should reduce his term of imprisonment, because he deserves a sentence reduction under the applicable § 3553(a) factors. (Def.'s Mot. at 10-16.)

On January 19, 2021, the Government filed its opposition to Defendant's Motion, conceding that Defendant's convicted counts constitute covered offenses, but arguing that he does not deserve discretionary relief under the 18 U.S.C. § 3553(a) sentencing factors. (Govt's Resp. in Opp'n to Def.'s Mot. to Reduce Sentence Pursuant to the First Step Act (“Govt's Resp.”) (ECF No. 1679) at 11-13.) Defendant filed his Reply to the Government's Response on February 18, 2021, ((“Def.'s Reply”) (ECF No. 1685)).

Following the Government's concession that Count One constituted a covered offense, the Supreme Court narrowed the definition of a “covered offense, ” rejecting the Fourth Circuit's previous framework for determining a covered offense. See Terry v. United States, 141 S.Ct. 1858, 1862 (2021) (defining a “covered offense” as an individual offense for which the statutory penalty was modified by the Fair Sentencing Act); United States v. Thomas, 32 F. 4th 420, 425 (4th Cir. 2022) (“Recently, however, the Supreme Court [in Terry] rejected our approach in Woodson ....”). On July 19, 2021, because the Government had based its Count One concession on the Fourth Circuit's pre-Terry framework, the Court ordered the Parties to submit supplemental briefing on whether Terry rendered Count One ineligible for relief under the First Step Act. (ECF No. 1695). On September 27, 2021, Defendant filed his Position on Terry v. United States, arguing that Count One still constitutes a covered offense even after Terry. ((“Def.'s Supp. Mem.”) (ECF No. 1701).) On October 14, 2021, the Government filed its Supplemental Memorandum on Terry v. United States, now claiming that Count One does not constitute a covered offense. ((“Govt.'s Supp. Mem.”) (ECF No. 1704).) On October 20, 2021, Defendant filed his Reply to Government Supplemental Memorandum. ((“Def.'s Supp. Reply.”) (ECF No. 1707).) This matter is now ripe for review.

In its Worksheet filed before the initial briefing, the United States Probation Office recommended that the Court find Defendant ineligible for relief on Count One and eligible on Count Two. (First Step Act Amendment Application Worksheet (“Worksheet”) (ECF No. 1641).) The Probation Officer recalculated Defendant's Combined Adjusted Offense Level for all counts of conviction from 44 to 43 and noted that the statutory penalty for Count One did not change under the Fair Sentencing Act. However, the statutory maximum under Count Two now stands at forty years. (ECF No. 1641.)

IL STATUTORY BACKGROUND

Courts operate under a “baseline rule of sentence finality ” which states that “sentences may not be modified once imposed.” United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020). Congress has provided a “narrow exception to finality” in 18 U.S.C. § 3582(c)(1)(B). United States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019). This statute provides that “[t]he court may not modify a term of imprisonment once it has been imposed except that, in any case, the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B) (emphasis added).

This general rule of finality guides the Court in its interpretation of the scope of the other specific statutes in this case. By the plain language of § 3582(c)(1)(B), the Court may modify Defendant's sentences only as expressly permitted by the Fair Sentencing Act and the First Step Act. See Wirsing, 943 F.3d at 184 (“The First Step Act thus fits under the narrow exception to finality provided in § 3582(c)(1)(B) because it expressly permits the court to modify a term of imprisonment.” (quotations omitted)). Accordingly, the Court turns to those statutes.

The Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat 2372 (2010), provided the substantive change that Defendant claims entitles him to a reduction of his sentences for his murder and drug convictions. The Fair Sentencing Act addressed a sentencing disparity between crack and powder cocaine offenses by increasing the amount of crack cocaine needed to trigger...