United States v. Avon Banks

UNITED STATES OF AMERICA v. AVON BANKS, Defendant.

Crim. No. JKB-09-0288

United States District Court, D. Maryland

April 6, 2022

MEMORANDUM AND ORDER

James K. Bredar Chief Judge

Avon Banks is presently serving a sentence of 262 months' imprisonment for conspiracy to violate the Racketeer Influenced and Corrupt Organizations ("RICO") Act. Presently pending hefore the Court is Banks' Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582, or Alternatively, for Sentencing Reduction Pursuant to Section 404 of the First Step Act. (ECF Nos. 1998, 2000). The gravamen of these Motions is that several changes in applicable law have dramatically shifted the sentencing landscape from where it was when Banks was originally sentenced. Banks argues that both the 18 U.S.C. § 3582(c)(1)(A) and Section 404 of the First Step Act provide vehicles to a resentencing under the now-applicable legal frameworks. He further argues that this resentencing should be informed by his personal history; his age at the time of incarceration; his significant rehabilitation in prison; and sentence reductions received by several of his codefendants. (Id. at 17-42.) Banks concludes that consideration of these factors, as well as the other factors enumerated in 18 U.S.C. § 3353(a) supports a reduction of his sentence to' "time served or to 168 months of imprisonment." (See ECF No. 2000 at 3.)^[1] While the Government disputes whether Banks has established grounds for compassionate release, it agrees that he would be entitled to resentencing under Section 404 of the First Step Act. (See ECF No. 2017 at 2-12.) It also agrees that Banks' Guidelines calculations are significantly lower under presently applicable law. (See Id. at 4-5.) It disagrees, however, on how the remaining facts of this case affect the 18 U.S.C. § 3553(a) analysis. In contrast to Banks' position, the Government argues that those factors support a more modest sentence reduction than that suggested by Banks, to 226 months' imprisonment. (See Id. at 18.) The present Motion is fully briefed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2021). For the following reasons, Banks' Motion is GRANTED IN PART and an Amended Judgment shall issue reducing his sentence to 188 months' imprisonment.

I. Eligibility Under Section 404 of the First Step Act

"The First Step Act provides that a sentencing court 'may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.'" United States v. Wirsing, 943 F.3d 175, 180 (4th Cir. 2019) (quoting First Step Act § 404(b), 132 Stat, at 5222). A "covered offense is a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 [and] that was committed before August 3, 2010." Id. The parties agree that Banks' present sentence was imposed for a "covered offense" and that he is accordingly eligible for a Section 404 sentence reduction. (See ECF Nos. 2000 at 16, 2017 at 11.) As such, the Court does not consider whether Banks would be independently eligible for a sentencing reduction under 18 U.S.C. § 3582(c)(1)(A). Rather, it turns to consideration of whether and to what extent Banks' sentence should be reduced.

II. Section 404 Sentence Reduction

Even where a defendant's offense qualifies for a sentencing reduction under Section 404, "the decision whether to grant any reduction under the Act 'is entrusted to the district court's discretion.'" United States v. Webb, 5 F. 4th 495, 498 (4th Cir. 2021). In exercising this discretion, "a court must [ ] 'consider a defendant's arguments, give individual consideration to the defendant's characteristics in light of the 18 U.S.C. § 3553(a) factors, determine whether a given sentence remains appropriate in light of those factors, and adequately explain that decision.'" Id. (quoting United States v. Collington, 995 F.3d 347, 360 (4th Cir. 2021)) (cleaned up). Particularly relevant here, a district court must both "engage in a brief analysis that involves the recalculation of the Sentencing Guidelines in light of 'intervening case law' . .. and a brief reconsideration of the factors set forth in 18 U.S.C. § 3553(a)." United States v. Lancaster, 997 F.3d 171, 175 (4th Cir. 2021) (internal quotation marks and citations omitted). In the latter inquiry, the Court may "take into account a defendant's conduct after his initial sentencing." Id. (citing United States v. Chambers, 956 F.3d 667, 674 (4th Cir. 2020)).

A. Intervening Case Law

Banks was initially sentenced at an offense level of 34 and a criminal history category of VI resulting in a Guidelines range of 262-327 months. See U.S. Sent'g Guidelines Manual, Sentencing Table (U.S. Sent'g Comm'n 2010). However, two intervening changes in law significantly impact these Guidelines calculations. First, the parties agree that Banks was subject to a career offender enhancement that would no longer be applicable, reducing both his offense level and criminal history category. See Id. § 4B 1.1(b) (mandating minimum offense levels and a criminal history category of VI for persons subject to a career offender enhancement). Second, Amendment 782, effective November 1, 2014, reduced the base offense levels for offenses calculated based on the drug quantity table. See U.S. Sent'g Comm'n, Amendment 782 (Nov. 1, 2014). Despite agreeing on both of these predicates, the parties (at least facially) disagree on Banks' final offense level and criminal history category under present law. Having considered the parties' arguments, the Court concludes that, if sentenced today, Banks would have an offense level of 30 and a criminal history category of V resulting in a Guidelines range of 151-188 months.

1. Career Offender Status

When Banks was originally sentenced, he was subject to a career offender enhancement under Guidelines § 4B1.1. See U.S. Sent'g Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2021) (hereinafter ("USSG")). However, to qualify for this enhancement, "the instant offense of conviction [must be] a felony that is either a crime of violence or a controlled substance offense[.]" Id. Since Banks' original sentencing, the Fourth Circuit has held that conspiracy under 21 U.S.C. § 846 is not a "controlled substance offense" within the meaning of USSG § 4B1.2(b). See United States v. Norman, 935 F.3d 232, 237-38 (4th Cir. 2019). Banks argues that the reasoning in Norman extends to the conclusion that a RICO conspiracy involving underlying drug offenses similarly cannot be a "controlled substance offense" under USSG § 4B1.2(b). The Court agrees.

Specifically, the Norman court reaffirmed the principle that although USSG § 4B1.2 extended to certain conspiracy offenses, '"an overt act is an element of the generic definition of conspiracy' as incorporated into § 4B1.2." Id. at 237 (quoting United States v. McCollum, 885 F.3d 300, 308 (4th Cir. 2018)). In contrast, "'conspiracy' under § 846 does not require an'overt act." Id. at 238 (citing United States v. Shabani, 513 U.S. 10, 11 (1994)). Thus the Fourth Circuit concluded that "a 'conspiracy' conviction under § 846 is a categorical mismatch to the generic crime of conspiracy enumerated in § 4B 1.2(b)" and could not be the subject of a career offender enhancement. Id. at 239.

Like § 842, "the RICO conspiracy statute contains 'no requirement of some overt act or specific act.'" United States v. Cornell, 780 F.3d 616, 624 (4th Cir. 2015) (quoting Salinas v. United States, 522 U.S. 52, 63 (1997)): Thus, as with § 842, RICO conspiracy cannot qualify as a "controlled substance offense" under USSG § 4B1.2 and cannot, therefore, be the type of "instant offense of conviction" that qualifies for a career offender enhancement under the Guidelines. See USSG § 4B1.1(a) ("A defendant is a career offender if [inter alia] ... the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense."); see also United States v. Lisbon, 276 F.Supp.3d 456, 459 (D. Md. 2017) (holding based on similar reasoning that "Lisbon's conviction for RICO conspiracy does not constitute a 'controlled substance offense' subject to enhancement under the career offender provision."). The Government agrees that, at least for purposes of the presently pending Motion, "[Banks] would not be a career offender and that, if sentenced today, his sentencing range would be substantially lower." (ECF No. 2017 at 4.)

2. Amendment 782

Banks' sentencing range is also affected by the changes to the Guidelines' drug quantity table made by Guidelines Amendment 782. See USSG § 2D 1.1(c). "Amendment 782 lowered the offense levels for drug offenses involving certain quantities of drugs." United States v. Bornales, 639 Fed.Appx. 169, 170 (4th Cir. 2016). Banks argues that these changes reduce the base offense level for his underlying drug trafficking conduct to 30 on one of two theories. First, he argues that a base offense level of 30 is supported by the quantities of drugs stipulated in his Plea Agreement. (See ECF No 2000 at 13.) In his Plea Agreement, the parties agreed that "the racketeering activity of drug trafficking involved at least 500 grams but less than 1.5 kilograms of cocaine base."(ECF No. 523 at 5.) On the present drug quantity table, this amount spans two different offense levels, as the modern table assigns an offense level of 32 for offenses involving "[a]t least 840 G but less than 2.8 KG of Cocaine Base" but an offense level of 30 for offenses involving "[a]t least 280 G but less than 840 G of Cocaine Base." USSG § 2Dl.l(c). Banks...