United States v. Barber

409 F.Supp.3d 542

UNITED STATES of America

v.Norwood Wallace BARBER, Jr., Defendant

Case No. 5:05-CR-15

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed August 9, 2019

Jeb T. Terrien, United States Attorneys Office, Harrisonburg, VA, for United States of America.

MEMORANDUM OPINION

Michael F. Urbanski, Chief United States District Judge

Defendant Norwood Wallace Barber, Jr., represented by counsel, filed a motion to reduce his sentence pursuant to the First Step Act of 2018, Pub. L. No. 115-015. ECF No. 174. He asks that his sentence be reduced from 240 months to time served. The government argues that Barber is not eligible for consideration of a reduction of his sentence because he previously received an executive grant of clemency.

The government additionally argues that Barber is ineligible for consideration because he was sentenced for a violation involving 1.5 kilograms of cocaine base, which exceeds the current threshold of 21 U.S.C. § 841(b)(1)(A). For the reasons set forth below, the court will GRANT Barber's request to modify his sentence to time served. The order will be stayed for up to ten days to allow the Bureau of Prisons time to process Barber's release.

I.

On July 13, 2005, following a jury trial, Barber was found guilty of one count of conspiring with other persons to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). ECF Nos. 1, 38. The government had previously filed a notice pursuant to 21 U.S.C. § 851 that Barber had at least two prior felony drug convictions. ECF No. 25.

In the PSR, it was noted that Barber "was responsible for significant amounts of both powder and crack cocaine, justifying the jury's finding that the defendant was involved with more than 50 grams of cocaine base." ECF No. 177 at ¶ 14. One codefendant testified that from October 2, 2002 through June 2003, he supplied Barber with approximately 200 grams of crack cocaine weekly. There was additional testimony that on one occasion, Barber purchased one-quarter of a kilogram of powder cocaine and 4 ounces (113 grams) of cocaine base. Id. at ¶ 12.

The combination of a conviction for 50 grams or more of cocaine base and having two prior felony drug convictions resulted in a statutory mandatory life sentence for Barber. 21 U.S.C. § 841(b)(1)(A) (2002) ; ECF No. 177 at ¶ 58. Barber's guidelines range was calculated on 1.5 kilograms of cocaine base, which gave him a total offense level of 38 with no adjustments. He also was found to be a career offender under the guidelines, which gave him an offense level of 38.¹ ECF No. 177 at ¶¶ 18-28, 59. Based on the offense level of 38 and his criminal history category of VI, his guidelines range was 360 months to life. On December 22, 2005, the court sentenced Barber to life in prison, to be followed by a 10-year period of supervised release. ECF No. 51.

Barber sought an executive grant of clemency and it was granted by President Barack Obama on October 6, 2016. Barber's sentence of life was reduced to 240 months to be followed by a 10-year term of supervised release. ECF No. 172 at 3. Barber has served approximately 176 months and his current projected release date is June 15, 2022. ECF No. 179.

At the time Barber was sentenced, a violation of § 841(a)(1) carried a mandatory minimum sentence of 10 years and a maximum of life imprisonment if the offense involved more than 50 grams of cocaine base, and a penalty range of 5 to 40 years if the offense involved more than 5 grams of cocaine base. 21 U.S.C. § 841(b)(1)(A) and (B) (2002). In 2010, the Fair Sentencing Act was enacted, and Section 2 of the act reduced penalties for offenses involving cocaine base by increasing the threshold drug quantities required to trigger mandatory minimum sentences under 21 U.S.C. § 841(b)(1). Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010). Currently, in order to trigger the 10-years-to-life-sentencing range, the offense must involve more than 280 grams of cocaine base, and to trigger the 5-to-40-year sentencing range, the offense must involve more than 28 grams of cocaine base.

The First Step Act was passed on December 21, 2018. Section 404 of the act permits a court, upon motion of the defendant or the government, or upon its own motion, to impose a reduced sentence for certain offenses in accordance with the Fair Sentencing Act of 2010, if such a reduction was not previously granted. Offenses qualify for the reduction if they were committed before August 3, 2010 and carry the statutory penalties which were modified by section 2 or 3 of the Fair Sentencing Act of 2010. First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 (2018).

II.

The government contends that Barber is ineligible for relief under the First Step Act because he received the executive grant of clemency lowering his sentence to 240 months. It argues that he no longer is serving a sentence whose penalties were modified by the First Step Act, but is serving a sentence imposed by the President. However, by the terms of the grant of clemency, the President did not impose a new sentence. Rather, the grant of clemency commuted the total sentence of imprisonment, remitted any unpaid balance of the $2,500 fine imposed by the court that remains unpaid upon Barber's release, and "[left] intact and in effect the 10-year term of supervised release imposed by the court with all its conditions and all other components of the sentence." ECF No. 172 at 3. Thus, the grant of clemency shortened the sentence, but did not impose a new sentence.

The government cites a concurring opinion in United States v. Surratt, 855 F.3d 218, 219 (4th Cir. 2017) (en banc), where the Fourth Circuit Court of Appeals dismissed as moot a habeas corpus challenge to a mandatory life sentence for a cocaine base conviction, following a presidential term commutation. Other district courts looking at Surratt in the context of the First Step Act have found that it is distinguishable. In United States v. Stallworth, No. 1:08-cr-24, 2019 WL 2912845 (W.D. Va. July 8, 2019), the court found that Surratt did not implicate the defendant's eligibility for relief under the First Step Act, because Surratt addressed the question of whether commutation of a sentence mooted a challenge to the unlawfulness of the sentence when the commutation cured the unlawful defect in the sentence. Stallworth, 2019 WL 2912845 at *2 (citing United States v. Dodd, 372 F.Supp.3d 795, 798 (S.D. Iowa 2019) ). The court reasoned that defendants seeking relief under the First Step Act are not challenging the unlawfulness of their sentences, but are seeking additional relief under new statutory authority. Id. See also United States v. Buckery, No. 1:08-cr-30032, 2019 WL 2724340 at *2 (W.D. Va. July 1, 2019) (same); United States v. Mitchell, No. 05-00110 (EGS), 2019 WL 2647571 at *6 (D.D.C. June 27, 2019) (finding mootness doctrine did not apply because a case becomes moot only when it is impossible for a court to grant relief to the prevailing party, and relief is possible under the First Step Act); and United States v. Razz, 379 F.Supp.3d 1309, 1316-1317 (S.D. Fla. 2019) (noting that every court to have addressed the Surratt argument in a First Step Act case has rejected it).

The court finds persuasive the reasoning in Stallworth and the other cases cited above. Accordingly, the fact that Barber's original sentence was commuted by President Obama does not make him ineligible for relief under the First Step Act.

III.

The government next argues that even if the court finds that the grant of executive clemency does not render Barber ineligible for relief under the First Step Act, the quantity of drugs described in the PSR, 1.5 kilograms, makes him ineligible for relief. If Barber were sentenced on 1.5 kilograms of cocaine base, his sentence would be the same today under 21 U.S.C. § 841(b)(1)(A). The government further argues that neither Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) nor Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), apply in the context of the First Step Act.

Barber responds that he was sentenced not on the quantity of drugs described in the PSR, but on the conviction finding him responsible for 50 grams or more of cocaine base. He asserts that the relevant quantity of drugs for purposes of applicability of the First Step Act is that which defines the offense rather than the conduct, because the First Step Act applies to offenses and not conduct. See Sec. 404 of the First Step Act (applying Fair Sentencing Act to a "covered offense," defined as "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").

The majority of district courts, including this one, that have addressed this issue have found that when deciding whether a petitioner is entitled to relief under the First Step Act, the court should consider the quantity of cocaine base on which the defendant was convicted rather than the quantity of drugs reported in the PSR. The majority of courts also have concluded that when modifying a sentence under the First Step Act, a court should do so taking into consideration the holdings in Apprendi and Alleyne. See, e.g., United States v. Stanback, 377 F.Supp.3d 618, 623 (W.D. Va. 2019) (collecting cases); United States v. Opher, No. 00-323-09 (KSH), 404 F.Supp.3d 853, 868–67, 2019 WL 3297201 at *14 (D.N.J. July 23, 2019) (collecting cases); United States v. White, No. 99-cr-628-04, 2019 WL 3228335 (S.D. Tex. July 17, 2019) (collecting cases); and United States v. Paulino, No. 03-cr-0274 JAP, 2019 WL 2437214 (D.N.M., June 11, 2019).

The rationale for these decisions is that in Apprendi, the Supreme Court held that the Sixth Amendment to the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the...