United States v. Black, Case No. 3:04cr100

388 F.Supp.3d 682

UNITED STATES of America

v.Adolphus BLACK, Defendant.

Case No. 3:04cr100

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

Signed June 7, 2019

Michael C. Wallace, Sr., Office of the U.S. Attorney, Richmond, VA, for United States of America.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on Defendant Adolphus Black's Motion to Reduce Sentence Pursuant to the First Step Act of 2018 (the "Motion"). (ECF No. 154.) Black asserts that the First Step Act entitles him to relief because he committed a covered offense before August 3, 2010. (Mot. 1–3.) The United States responded, recognizing that the First Step Act applies to Black but disputing the extent of relief Black seeks in the Motion (the "Opposition"). (Opp'n 1, ECF No. 157.) Black replied. (ECF No. 159.) The Motion is ripe for disposition. For the reasons articulated below, the Court will grant in part and deny in part the Motion.

I. Background

In 2004, a jury convicted Black of three counts: (1) possessing at least 200 grams but less than 300 grams of powder cocaine, in violation of 21 U.S.C. § 841 (2000) ("Count One"); (2) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000) ("Count Two"); and, (3) distributing fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 841 (2000) ("Count Three"). (Mot. 3; PSR ¶¶ 5–6, ECF No. 158–1.)

The presentence report prepared following these convictions attributed to Black 249.8 grams of powder cocaine for Count One and 59.5 grams of cocaine base for Count Three. (PSR ¶¶ 5–6.) The presentence report then organized the three counts into two groups of "closely related counts" before tabulating the combined adjusted offense level. See U.S. SENTENCING GUIDELINES MANUAL ("USSG") ch.3, pt. D, introductory cmt. (U.S. Sentencing Comm'n 2004). For Counts One and Three (the first group), the presentence report determined an adjusted offense level of 32 based on the quantity of drugs involved in the offenses. (PSR Wkst A.) For Count Two (the second group), the presentence report calculated an offense level of 24, pursuant to USSG § 2K2.1(a)(2), because Black possessed a firearm after sustaining two felony convictions for crimes of violence. (PSR Wkst A, 2.) Combining the offense levels applicable to each group resulted in a combined adjusted offense level of 33. (PSR Wkst B).

The presentence report also classified Black as a career offender based on his convictions for New York robbery offenses that occurred in September 1987 when he was 18 years old. The presentence report specified that Black pled guilty to three robbery offenses that occurred over a five-day period and that Black began serving his sentence for each of those offenses on April 11, 1989. (PSR ¶¶ 18–19, 35, Wkst C, D.) These predicate robbery offenses occurred without an intervening arrest. (Compare PSR ¶¶ 18–19 (listing arrest dates as 9-15-87 and 12-3-87) with Wkst C, 3 (noting robbery offenses "had the same arrest and conviction dates").)¹ Using the career offender designation, the presentence report calculated a total offense level of 37 and a criminal history category VI, resulting in a sentencing Guidelines range of 360 months to life.² (PSR Wkst D.) Count One, however, carried a statutory maximum sentence of 240 months. (Id. )

Although Black objected to his status as a career offender and argued that his criminal history score substantially overrepresented the seriousness of his criminal history, the Court overruled his objection.³ (PSR B-1–B-2; Sent Tr. 8–9, ECF No. 159-1.) After adopting the Guidelines as presented in the presentence report, the Court imposed a sentence of 360 months for Counts Two and Three, at the low end of the Guidelines range, and the statutory maximum sentence of 240 months for Count One. (Sent. Tr. 14.) The Court ordered these terms of imprisonment to run concurrently. (Id. ) The Court also imposed a three-year supervised-release term for Counts One and Two and a five-year supervised-release term for Count Three, running concurrently. (Id. ) The United States Court of Appeals for the Fourth Circuit affirmed Black's convictions and sentences. United States v. Black , 200 Fed. App'x 249, 250–51 (4th Cir. 2006). Black unsuccessfully sought postconviction relief. (See ECF Nos. 91, 92, 114, 115, 147, 148.)

II. Legal Framework under the First Step Act

Following Black's conviction, Congress passed, and the President enacted, the Fair Sentencing Act of 2010 (the "Fair Sentencing Act"), Pub. L. No. 111-220 ; 124 Stat. 2372, which "reduced the statutory penalties for cocaine based offenses" to "alleviate the severe sentencing disparity between crack and powder cocaine," United States v. Peters , 843 F.3d 572, 575 (4th Cir. 2016). In 2018, Congress passed, and the President signed into law, the First Step Act of 2018 (the "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194, which made retroactive certain provisions of the Fair Sentencing Act.

Section 404 of the First Step Act permits "[a] court that imposed a sentence for a covered offense ... [to] impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111-220 ; 124 Stat. 2372) were in effect at the time the covered offense was committed." Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018). The First Step Act defines a "covered offense" 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 ( Public Law 111-220 ; 124 Stat. 2372), that was committed before August 3, 2010." Id. These specified sections modified the drug amounts required to trigger mandatory minimums for crack cocaine trafficking offenses from 5 grams to 28 grams with respect to the 5–year mandatory minimum and from 50 grams to 280 grams with respect to the 10–year mandatory minimum. Fair Sentencing Act, Pub. L. No. 111–220, § 2(a), 124 Stat. 2372, 2372. The Fair Sentencing Act also eliminated the 5–year mandatory minimum for simple possession of crack. Id. at § 3, 124 Stat. 2372, 2372. See also Dorsey v. United States , 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) (explaining sentencing discrepancies for certain drug offenses that Fair Sentencing Act sought to remedy).

Section 404 of the First Step Act does not expressly provide for a full or plenary resentencing or for a reconsideration of the original sentencing determinations.⁴ The United States therefore contends that 18 U.S.C. § 3582(c)(1)(B) governs these proceedings. (Opp'n 5–11).

That provision states: "[T]he court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). While the United States asserts that § 3582 proceedings are limited in scope and do "not authorize a de novo resentencing," (Opp'n 6), nothing in subsection 3582(c)(1)(B) prohibits the Court from considering relevant sentencing factors when examining a defendant's Guidelines range. See also United States v. Dunphy , 551 F.3d 247, 256 (4th Cir. 2009) (finding that the district court properly considered the § 3553(a) sentencing factors, which did not turn the § 3582(c) proceeding into a full sentencing hearing).

This approach mirrors the Fourth Circuit's analysis under Rule 35(b), which allows the Court to "consider other sentencing factors ... when deciding the extent of a reduction." United States v. Davis , 679 F.3d 190, 195 (4th Cir. 2012) ; see also U. S. Sentencing Comm'n, Office of Educ. & Sentencing Practice, First Step Act , https://www.ussc.gov/sites/default/files/pdf/training/newsletters/2019-special_FIRST-STEP-Act.pdf (last visited May 2, 2019) ("[T]he courts should consider the guidelines and policy statements, along with the other 3553(a) factors, during the resentencing."). Furthermore, the Fourth Circuit has recently emphasized that in analogous § 3582(c)(2) proceedings district courts must adequately consider evidence of rehabilitation and other post-conviction mitigating conduct before deciding § 3582 motions for sentence reductions. United States v. Martin , 916 F.3d 389, 398 (4th Cir. 2019) (when considering § 3582(c)(2) motions, "district court cannot ignore a host of mitigation evidence and summarily deny a motion to reduce a sentence and leave both the defendant and the appellate court in the dark as to the reasons for its decision").

In determining the propriety of a sentence modification, the Court first addresses whether a reduction comports with the requirements of the First Step Act and then "consider[s] whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Dillon v. United States , 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). The First Step Act makes clear that even if a defendant is eligible for a sentence reduction, the decision whether to grant a reduction remains within the district court's discretion. See Pub. L. No. 115–391, §§ 404(a)–(b), 132 Stat. 5194, 5222.

III. Analysis

A. Black's Conviction in Count Three Constitutes a Covered Offense

Black committed an offense before August 3, 2010, which involved distributing fifty grams or more of crack cocaine (Count Three). The United States does not dispute that Black's offense in Count Three constitutes a "covered offense" as defined by the First Step Act. See First Step Act, Pub. L. 115–391, § 404(a); 132 Stat. 5194, 5222. Relevant here, section 2 of the Fair Sentencing Act increased the drug quantities necessary to trigger mandatory minimum sentences under 21 U.S.C. § 841(b)(1), see Fair Sentencing Act Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372. Because Black's offense falls within section 2 of Fair Sentencing Act, the First Step Act "reduce[s] the statutory penalties for cocaine base offenses" and modifies the...