United States v. Cotton, CASE NO. 6:00-CR-60029-01

UNITED STATES OF AMERICA v. JOHN TIMOTHY COTTON (01)

CASE NO. 6:00-CR-60029-01

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION

April 12, 2021

JUDGE ROBERT G. JAMES

MAG. JUDGE PATRICK J. HANNA

RULING

Before the Court is a Motion for Sentence Reduction Pursuant to Section 404 of the First Step Act ("FSA"), filed by Defendant John Timothy Cotton. [ECF No. 947; see also ECF No. 951]. By his motion, Cotton moves the Court to reduce his term of imprisonment to twenty years. [ECF No. 951 at 2, 9]. The government opposes the motion, arguing Cotton is not eligible for relief under the FSA. [ECF No. 950 at 1]. Alternatively, and in the event the Court finds Cotton is eligible for relief, the government asks that the Court "consider the sentencing factors provided in 18 U.S.C. §3553(a) and the defendant's post-sentencing conduct when determining relief." Id. For the following reasons, Defendant's motion is GRANTED, and the Court will reduce Defendant's term of imprisonment to twenty years.

I.BACKGROUND

On November 15, 2000, Cotton and eight co-defendants were charged in a superseding indictment with various narcotics offenses. [ECF No. 52]. As pertinent here, the indictment alleged that over a ten year period, Cotton and his co-defendants would procure cocaine and cocaine base (also known as "crack"), convert cocaine into cocaine base, and transport cocaine and cocaine base from Houston, Texas to various locations in Texas, Louisiana, Mississippi, and Kansas for distribution purposes. Specifically, Cotton was charged as follows: (1) conspiracy to possess with intent to distribute more than fifty grams of cocaine base (Count 1); (2) possession with intent to distribute over fifty grams of cocaine base (Count 2); (3) conspiracy to commit money laundering involving the proceeds of drug trafficking activity (Count 3); (4) continuing criminal enterprise ("CCE") (Count 4); and (5) forfeiture of all property derived from drug proceeds (Count 5). The case proceeded to trial, and Cotton was prosecuted on the conspiracy, CCE, and forfeiture charges (counts 1, 4, 5).¹ On August 12, 2004, following a fourteen-day jury trial, Cotton was found guilty on the conspiracy charge and the CCE charge. [ECF No. 599]. The jury also returned a forfeiture verdict against Cotton. [ECF No. 600]. Because of Cotton's conviction on the CCE charge, the district court granted the government's motion to dismiss the conspiracy count against Cotton to avoid double jeopardy issues. [ECF No. 596 at 2].

A sentencing hearing was held on January 26, 2005. [ECF No. 706]. Cotton was sentenced pursuant to 21 U.S.C. 848(b), which mandates life in prison for a CCE if certain statutory elements are met.² As to the sentencing guidelines, due to the amount of crack involved Cotton's total offense level was 42, and his criminal history category was II, thereby resulting in a guideline range of imprisonment of 360 months to life, adjusted to life in prison pursuant to U.S.S.G. § 5G1.1(b).³ See Sentencing Transcript at 20, 32. In accordance with the statutorily mandated minimum term of imprisonment, the court sentenced Cotton to life in prison, and additionally imposed a five-year term of supervised release. [ECF No. 708]. On January 19, 2017, PresidentBarack Obama commuted Cotton's total term of imprisonment to 360 months. [ECF No. 945 at 4]. Pursuant to the First Step Act, Cotton now asks that his sentence be reduced to twenty years.

II.APPLICABLE LAW

On August 3, 2010, after more than two decades of substantial criticism from the Sentencing Commission and others in the law enforcement community that the harsh treatment of crack cocaine offenses was fundamentally unfair when compared to offenses involving powder cocaine, Congress passed the Fair Sentencing Act. Dorsey v. United States, 567 U.S. 260, 268 (2012). Section 2 of the Fair Sentencing Act amended 21 U.S.C. § 841(b)(1)(A)(iii) by increasing the 50-gram threshold for cocaine base convictions to 280 grams. See 124 Stat. at 2372. Section 2 similarly amended § 841(b)(1)(B)(iii) by increasing the 5-gram cocaine base threshold to 28 grams. Id. The Fair Sentencing Act took effect on August 3, 2010 but applied only to sentences imposed thereafter. Dorsey at 264.

In 2018, Congress passed the First Step Act, which made the revised crack cocaine minimums established by the Fair Sentencing Act retroactive. First Step Act of 2018 ("FSA"), Pub. L. No. 115-391, § 404, 132 Stat 5194 (2018). Section 404 of the First Step Act provides:

(a) DEFINITION OF COVERED OFFENSE.—In this section, the term "covered offense" means 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 . . . , that was committed before August 3, 2010.

(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a sentence for a covered offense 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.

(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 . . . or if a previous motion made under this section toreduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

Id.

III.ANALYSIS

A. Whether Defendant is eligible for relief under the First Step Act

The government acknowledges "a violation of § 848(b)(2)(A) can be a covered offense under the First Step Act," because the statutory penalty for that offense was modified by Section 2 of the Fair Sentencing Act.⁴ [ECF No. 950 at 6; see also Id. at n.5; United States v. Butler, 8:92CR14, 2021 WL 366108, at *3 (D. Neb. Feb. 3, 2021)]. Nevertheless, the government argues Cotton should be deemed ineligible for relief under the First Step Act due to the amount of cocaine base attributed to him in the sentencing record. Id. at 8. The government concedes "this argument was rejected by the Fifth Circuit, but makes it to preserve it for future proceedings in this case." Id. (citing United States v. Jackson, 945 F.3d 315, 320 (5th Cir. 2019)). The Court agrees that this argument is now foreclosed by the Fifth Circuit. In Jackson, the Fifth Circuit held "whether a defendant has a 'covered offense' under section 404(a) depends only on the statute under which he was convicted. If he was convicted of violating a statute whose penalties were modified by theFair Sentencing Act, then he meets that aspect of a 'covered offense.'" Jackson at 320; see also United States v. Winters, 986 F.3d 942, 948 (5th Cir. 2021) ("The inquiry does not turn on the facts specific to the defendant's offense. . . ."). In this matter, Cotton was convicted of violating a Federal criminal statute (21 U.S.C. § 848(b)), for which the statutory penalties were modified by Section 2 of the Fair Sentencing Act; Cotton's offense was committed before August 3, 2010; Cotton has not previously filed a motion seeking First Step Act relief; and Cotton's sentence has not been reduced pursuant to the amendments made by sections 2 or 3 of the Fair Sentencing Act. Accordingly, the Court finds Cotton is eligible for relief under the First Step Act.

B. Whether Relief is Warranted

In determining the appropriate sentence, the Court has considered the statutory sentencing range, the sentencing guidelines range, the sentencing factors set forth in 18 U.S.C. § 3553(a), and pre- and post-sentencing conduct. See e.g. Jackson at 321-22; United States v. Williams, 943 F.3d 841, 843-44 (8th Cir. 2019) (citing Pepper v. U.S., 562 U.S. 476, 504 (2011)). The statutory penalty range for engaging in a continuing criminal enterprise begins at twenty years to life. 21 U.S.C. § 848(a). The penalty is enhanced to mandatory life in prison if the defendant was the principal leader, or one of the principal leaders, of the CCE, and he is responsible for distribution of "at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title,"⁵ or "the enterprise . . . received $10 million dollars in gross receipts during any twelve-month period of its existence for the . . . distribution of a substance described in section 841(b)(1)(B) of this title." Id. at § 848(b). In this matter, the Indictment did not set forth the requisite drug quantity for a mandatory life sentence⁶, nor was the jury tasked with making the necessary findings. The Courttherefore finds that under the facts of this case and the arguments made in connection with the pending motion, Cotton's current statutory sentencing range is twenty years to life as set forth in 21 U.S.C. § 848(a).⁷ See United States v. Butler, 8:92CR14, 2021 WL 366108, at *3 (D. Neb. Feb. 3, 2021) (After receiving additional guidance from the DOJ, the government concedes § 848 is a covered offense, the defendant should receive the benefit of Alleyne, and the defendant therefore was no longer subject to the to the statutory mandatory life sentence under § 848(b) because he was only found guilty of distributing 50 grams or more of cocaine base). Cotton's sentencing guideline range is now 360 months to life. [ECF No. 922 at 1].

With regard to the sentencing factors set forth at 18 U.S.C. § 3553(a)(1)⁸, Cotton was an organizer of a continuing criminal enterprise that sold a very large amount of narcotics in multiplestates over a period of approximately ten years. There is no indication in the PSR that Cotton engaged in any violent acts in connection with the offense conduct. Cotton has four prior criminal convictions - three convictions for...