United States v. Day

474 F.Supp.3d 790

UNITED STATES of America,

v.George Cornelius DAY, Defendant.

Case No. 1:05-cr-460-AJT-1

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

Signed July 23, 2020

Lawrence J. Leiser, LeDora Knight, James Ryan, United States Attorney's Office, Alexandria, VA, for USA.

MEMORANDUM OPINION AND ORDER ¹

Anthony J. Trenga, United State District Judge

On June 29, 2006, Defendant George Cornelius Day was found guilty of (1) conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) and 5 kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count 1); (2) conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count 4); and (3) seven counts of money laundering, in violation of 18 U.S.C. § 1957 (Counts 5-11). On September 13, 2006, he was sentenced to a mandatory term of Life imprisonment on Count 1; 240 months' imprisonment on Count 4, to run concurrently with Count 1; and 120 months' imprisonment on each of Counts 5 through 11, to run concurrently with each other and with Count 1.

Currently pending before the Court are Defendant's Motion to Reduce Sentence Pursuant to § 404 of the First Step Act of 2018 [Doc. 243] (the "First Step Act Motion") and Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) [Doc. 246] (the "Compassionate Release Motion") (collectively, the "Motions").² In these Motions, Defendant seeks (1) a reduction of his Life sentence on Count 1 to 180 months pursuant to § 404 of the FIRST STEP Act of 2018 (the "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194; (2) a reduction to his entire sentence to time served pursuant to 18 U.S.C. § 3582(c)(1)(A), based on "extraordinary and compelling reasons," specifically his particular vulnerabilities to COVID-19; and (3) a reduction of his Life sentence on Count 1 to 180 months pursuant to 18 U.S.C. § 3582(c)(1)(A), based on "extraordinary and compelling reasons," specifically, the gross disparity between the mandatory Life sentence Defendant received and the mandatory minimum 180-month sentence now applicable for the same offense today. The United States objects to the Motions on the grounds that the relief Defendant seeks under § 404 of the First Step Act is neither authorized nor warranted under the circumstances; Defendant has not properly exhausted his administrative remedies under 18 U.S.C. § 3582(c)(1)(A) ; and Defendant cannot demonstrate "extraordinary and compelling" reasons to warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).

For the reasons discussed below, the Motions are GRANTED to the extent the Court will impose a reduced sentence on Count 1, to be determined following the submissions as directed herein.

I. BACKGROUND

In 2001, federal law enforcement began to investigate a group of individuals alleged to be distributing crack cocaine within the Eastern District of Virginia. [Doc. 206] Presentence Investigation Report ("PSR") ¶ 12. In 2004, as part of that investigation, law enforcement learned that Defendant, who had been a street-level crack dealer from around 1996 until 2000, became a drug supplier beginning in or around 2000, importing large amounts of cocaine from the Bahamas into the United States for redistribution. Id. ¶¶ 13, 15,16. Ultimately, Defendant was connected to approximately 100 kilograms of powder cocaine and 10 kilograms of crack cocaine and through these activities, had earned approximately three to four million dollars in drug proceeds over the course of the conspiracy, of which approximately 2.3 million dollars were confirmed as drug proceeds by the Internal Revenue Service. Id. ¶¶ 26-43.

On November 17, 2005, a grand jury in the Eastern District of Virginia returned an eleven-count superseding indictment against Defendant, charging him with conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) and 5 kilograms or more of powder cocaine, in violation of 21 U.S.C. §§ 841(a) and 846 (Count 1); conspiracy to import 5 kilograms or more of cocaine into the United States, in violation of 21 U.S.C. § 963 (Count 2); possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c) (Count 3); conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count 4); and money laundering, in violation of 18 U.S.C. § 1957 (Counts 5-11). [Doc. 9].

On February 14, 2006, prior to trial, the government filed a criminal information pursuant to 21 U.S.C. § 851 [Doc. 48], thereby providing the required notice to Defendant that if convicted on Count 1, Defendant would be sentenced to an enhanced mandatory Life sentence. Id. ; PSR ¶¶ 52-53. That § 851 information was based on Defendant's 1995 and 1997 Maryland state court convictions for possession with intent to distribute cocaine. For his 1995 conviction, Defendant was given a three-year suspended sentence and for his 1997 conviction, a four-year sentence, of which he appears to have served approximately 17 months. PSR ¶¶ 52-53.

Defendant's first trial ended in a mistrial; and the government proceeded to a second trial on June 12, 2006. After a two-week trial, the government voluntarily dismissed before jury deliberations Count 3 (the § 924(c) charge); and the jury found Defendant guilty as to Counts 1, 4, and 5-11 and not guilty as to Count 2. [Doc. 95].

On September 13, 2006, Defendant appeared for sentencing. Under the then-applicable United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), Defendant's Guidelines sentencing was 360 months to Life. See PSR Worksheets A, C.³ However, because the government filed a § 851 information based upon two § 851 predicate offenses, the restricted Guidelines range became Life imprisonment. See PSR Worksheet D. Defendant did not receive a Guidelines enhancement for possession of a firearm, see PSR ¶¶ 12-43, and the government has acknowledged in response to the Motions that "there is no evidence [that Defendant] himself was violent." [Doc. 255] at 11. As required, the Court sentenced Defendant to the mandatory Life sentence on Count 1. It also sentenced Defendant to 20 years as to Count 4, to run concurrently with Count 1; and 10 years as to each of Counts 5-11, all to run concurrently with each other and concurrently with Count 1.⁴ [Doc. 113].

To date, Defendant has served nearly 15 years of his sentence and is currently incarcerated at FCI Fort Dix, a low security federal prison.⁵ He is ineligible for parole, see Sentencing Reform Act of 1984, Title II, ch. II of Pub. L. 98-473, § 218(a)(5), 98 Stat. 1837, 2027 (abolishing parole system for federal offenses committed after November 1, 1987); and has no scheduled release date.

On February 11, 2019, Defendant, proceeding pro se , filed the First Step Act Motion [Doc. 243], in which he requests pursuant to § 404 of the First Step Act a sentence reduction as to Count 1. On May 4, 2020, Defendant, again proceeding pro se , filed the Compassionate Release Motion [Doc. 246], in which he also requests a reduction in his Life sentence under 18 U.S.C. § 3582(c)(1)(A) based on the "extraordinary and compelling" reasons related to his underlying health issues that places him in the "at-risk" demographic for mortality from COVID-19. On May 26, 2020, Defendant, through counsel, requested relief under 18 U.S.C. § 3582(c)(1)(A) based on the gross disparity that now exists between his Life sentence and the now-reduced penalties under 21 U.S.C. § 851 enacted in § 401 of the First Step Act.⁶ [Docs. 252, 253]

II. ANALYSIS

A. First Step Act Motion [Doc. 243]

1. Legal Background

In August 2010, Congress passed, and the President signed into law, the Fair Sentencing Act of 2010 (the "Fair Sentencing Act"), Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the Fair Sentencing Act reduced the statutory penalties for certain crack cocaine offenses by increasing the threshold drug quantities required to trigger the applicable mandatory minimum sentences. Id. § 2.⁷ In that regard, the Fair Sentencing Act made the mandatory 10 years-to-life sentencing range, previously applicable to an offense involving 50 grams or more of crack cocaine, applicable only to an offense involving 280 grams or more of crack cocaine. 21 U.S.C. § 841(b)(1). This change, however, did not apply retroactively.

On December 21, 2018, Congress passed, and the President signed into law, the First Step Act. Section 404 of the First Step Act retroactively applied § 2 and § 3 of the Fair Sentencing Act to certain qualifying offenders who were sentenced on or before August 3, 2010. Section 404 does not guarantee a sentence reduction for every eligible defendant. Id. , § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section."). Rather, "a court that imposed a sentence for a covered offense may, on motion of the defendant, ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act 2010 ... were in effect at the time the covered offense was committed." Id. , § 404(b). In determining whether to reduce a sentence pursuant to § 404(b), the court should consider the factors set forth in 18 U.S.C. § 3553(a), as well as a defendant's post-sentencing conduct. See United States v. Wirsing , 943 F.3d 175, 180 (4th Cir. 2019).

The First Step Act also modified § 851 in two ways that are central to Defendant's request for relief. First , § 401 changed what qualifies as a predicate offense triggering a recidivist enhancement under 21 U.S.C. § 841(b)(1)(A). Specifically, under § 401, only a "serious drug felony" or "serious violent felony, defined as an offense for which an offender actually served a term imprisonment of more than one year, now qualifies as a § 851 predicate offense, rather than the previously included "felony drug offense," defined as an offense that is punishable by imprisonment of more than one year. See 21 U.S.C. § 851 (as amended by the First Step Act, § 401(a)); see also 21 U.S.C. §§ 802(57)(A) and (58)(A) (defi...