United States v. Criswell

OPINION & ORDER

Michael R. Barrett, Judge United States District Court

This matter is before the Court upon Defendant Antwan Criswell's pro se Motion for Safety Valve Reduction in Sentencing Error, 18 U.S.C. § 3582. (Doc. 71).

On March 12, 2019, Defendant was charged with eight counts in a superseding indictment: four counts of distribution of a controlled substance in violation of 21 U.S.C.§ 841(a)(1) (Counts 1, 2, 5 and 7); one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 3); and three counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1) (Counts 4, 6, and 8). (Doc. 25). On April 15, 2019, Defendant pled guilty to Counts 3 and 7 pursuant to a Plea Agreement under Rule 11(c)(1)(C). (Doc. 31). On June 10, 2020, this Court sentenced Defendant to 60 months imprisonment on Count 3 with credit for time served, to run consecutive to the 50 months of imprisonment with credit for time served on Count 7; and 4 years supervised release on each count with conditions to run concurrent to each other. (Doc. 51, 53). All the remaining counts were dismissed. (Doc. 50).

Defendant maintains that he is entitled to a two-level reduction in sentence because he did not commit a “crime of violence” and this is his first felony offense in the federal system.

As this Court has previously recognized, a district court lacks authority to resentence a defendant, except as permitted by statute. United States v. Shaw, No. 1:12-CR-74, 2021 WL 1312980, at *2 (S.D. Ohio Apr. 8, 2021) (citing United States v. Houston, 529 F.3d 743, 748-749 (6th Cir. 2008)). In the caption of his motion, Defendant cites to 18 U.S.C. § 3582. The Sixth Circuit has explained: “The ‘compassionate release' provision of 18 U.S.C. § 3582 allows district courts to reduce the sentences of incarcerated persons in ‘extraordinary and compelling' circumstances.” United States v. Jones, 980 F.3d 1098, 1100 (6th Cir. 2020) (citing 18 U.S.C. § 3582(c)(1)(A)). However, Defendant has not made any arguments which would seem to fit within this statutory provision.^[1] Therefore, the Court finds that Defendant failed to establish that “extraordinary and compelling reasons” warrant a sentence reduction under § 3582(c)(1)(A).

Defendant also relies upon 18 U.S.C. § 3553(f), which allows district courts in the case of an offense under 21 U.S.C. § 841 to impose a sentence “without regard to any statutory minimum sentence, if the court finds” that a defendant has satisfied § 3553(f)'s

five requirements. United States v. Henderson, 307 Fed.Appx. 970, 985 (6th Cir. 2009) (quoting U.S.S.G. § 5C1.2(a)(5)).^[2] A defendant bears the burden of proving by a preponderance of the evidence that he is entitled to relief under the safety valve. United States v. Barron, 940 F.3d 903, 914 (6th Cir. 2019) (citing United States v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004)). Defendant has not previously raised the issue of his eligibility for safety-valve relief, and the applicability of § 3553(f) to Defendant's sentence is questionable given that the quantity of narcotics does not trigger the minimum

mandatory sentence in this case. Therefore, Defendant has not demonstrated that he is entitled to relief under 18 U.S.C. § 3553(f).

Defendant also argues that he should be resentenced for his § 924(c) conviction under two Supreme Court cases: Sessions v. Dimaya, 138 S.Ct. 1204 (2018) and U.S. v. Davis, 139 S.Ct. 2319 (2019).

The Court notes that in his plea agreement, Defendant agreed to waive the right to appeal “the conviction and the sentence imposed, except if the sentence imposed exceeds the statutory maximum.” (Doc. 47, PAGEID 285). Therefore, Defendant's challenge is contrary to the terms of his plea agreement. In addition, any constitutional claim would constitute a second or successive petition requiring advance permission from the Sixth Circuit under 28 U.S.C. § 2255(h). However, even if this court were to consider Defendant's claim on the merits, it would fail.

In Davis, the Supreme Court held that the definition of “crime of violence” in the residual clause of § 924(c)(3) is unconstitutionally vague. 139 S.Ct. at 2336. This decision expanded upon the Supreme Court's earlier rulings in Dimaya and Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson, the Supreme Court addressed 18 U.S.C. § 924(e)(2)(B)(ii), which imposes a more severe punishment on a defendant convicted of being a felon-in-possession of a firearm if he has three or more prior convictions for a “violent felony.” The Court held that the residualclause definition of “violent felony” in the statute is unconstitutionally vague. 135 S.Ct. at 2563. In Dimaya, the Supreme Court also invalidated the residual clause in 18 U.S.C. § 16(b) which “provides the federal criminal code's definition of ‘crime of violence.'” 138 S.Ct. at 1211.

Defendant argues that under this Supreme Court precedent, his conviction under 18 U.S.C. § 924(c) was not a “crime of violence” because he did not “use” the firearm during the drug trafficking crime.^[3] However, Defendant was not sentenced under Section 924 for having a firearm in connection with a crime of violence, but rather for having a firearm in connection with a drug trafficking crime.^[4] Courts have concluded that the decisions in Johnson, Dimaya, and Davis have no impact on convictions based on the use a firearm in furtherance of a drug trafficking crime. See United States v. Chappell, No. 1:14 CR 00341, 2020 WL 2812726, at *4 (N.D. Ohio May 28, 2020) (collecting cases); see also United States v. Hopper, No. 19-2110 (10th Cir. Oct. 31, 2019) (explaining that Davis only provides relief from convictions “for using ... a firearm during ... a crime of violence”); In re Navarro, 931 F.3d. 1298, 1302 (11th Cir. 2019) (defendant could not make the required showing to file a second or successive § 2255 petition because his “§ 924(c) conviction is fully supported by his drug-trafficking crimes, and it therefore is

outside the scope of Davis, which invalidated only § 924(c)(3)(B)'s residual clause relating to crimes of violence.”)). Therefore, these decisions do not provide any basis for resentencing based on the facts of Defendant's case.

Finally, Defendant relies on Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). However, “Bailey examined an earlier version of [§ 924(c)] that prohibited only ‘using or carrying a firearm during and in relation to' drug trafficking.” United States v. Combs, 369 F.3d 925, 931-32 (6th Cir. 2005) (citing 18 U.S.C. § 924(c)(1) (1994)). In 1998, Congress amended the statute in response to Bailey by adding the “in furtherance of” language to the statute. United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001). Defendant was convicted under this version of the statute, not the “use and carry” provision in the prior version of the statute. Therefore, Bailey is not applicable to Defendant's case.

Based on the foregoing, Defendant Antwan Criswell's Motion...