United States v. Denny

UNITED STATES OF AMERICA, Plaintiff, v. TRAVIS DENNY, Defendant(s).

CR. No. 04-666 JAP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

January 29, 2020

MEMORANDUM OPINION AND ORDER

On May 28, 2019, Defendant Travis Denny (Defendant) filed DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT OF 2018 (Doc. 178). Following appointment of counsel, on October 7, 2019, Defendant amended his motion in DEFENDANT'S AMENDED MOTION FOR SENTENCE REDUCTION AND EARLY RELEASE PURSUANT TO THE FIRST STEP ACT (Doc. 180) (Motion). In his Motion, Defendant asks the Court to modify his sentence under the Fair Sentencing Act of 2010 (Fair Sentencing Act) as made retroactive by the First Step Act of 2018 (FSA). On November 4, 2019, the Government responded in UNITED STATES' RESPONSE IN OPPOSITION TO DEFENDANT'S AMENDED MOTION TO REDUCE SENTENCE UNDER 18 U.S.C. § 3582 AND FIRST STEP ACT OF 2018 (Doc. 183) (Response). On November 25, 2019, Defendant replied in DEFENDANT'S REPLY IN SUPPORT OF HIS AMENDED MOTION FOR SENTENCE REDUCTION AND EARLY RELEASE PURSUANT TO THE FIRST STEP ACT (Doc. 185) (Reply). The United States argues that Defendant is not eligible for FSA. The Court agrees and will deny Defendant's Motion.

PROCEDURAL HISTORY

On April 13, 2004, a federal grand jury indicted Defendant on one-count of possession with intent to distribute 500 grams or more of a substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).¹ On August 11, 2004, the grand jury superseded the indictment to include a Sentencing Allegation that under United States Sentencing Guideline (Guidelines) § 3C1.1, Defendant "willfully obstructed, impeded or attempted to impede the administration of justice during the course of the investigation by striking a government official and attempting to flee with the cocaine he possessed."²

On January 18, 2007, after a motion to suppress was granted by the Court but overturned by the Tenth Circuit,³ Defendant pleaded guilty to the Superseding Indictment without the benefit of a plea agreement. On September 26, 2007, the Court sentenced Defendant. In determining the sentence, the Court found that Defendant was a career offender whose criminal history was overrepresented. The Court reduced Defendant's criminal history category from a VI to a V, which gave Defendant a guideline range of 324 to 405 months. The Court then varied 84 months downward and imposed a sentence of 240-months in custody.⁴

On November 2, 2009, Defendant filed a Motion under 28 U.S.C. § 2255 seeking to vacate or adjust his sentence.⁵ On August 18, 2010, Magistrate Judge Karen B. Molzen recommended that the Court deny Defendants Section § 2255 Motion because it was untimely.⁶On December 16, 2010, the Court adopted Judge Molzen's recommendations over Defendant's objections.⁷ Defendant appealed. On November 16, 2012, the Tenth Circuit affirmed.⁸

Subsequently, the United States Sentencing Commission adopted and made retroactive Amendment 782, which lowered the sentencing drug tables by two levels. On February 10, 2015, Defendant filed a motion asking the Court to resentence him under 18 U.S.C. § 3582(c)(2).⁹ The Court denied Defendant's motion, finding that Defendant was ineligible for sentence modification because his sentencing range was not based on the drug quantity table but on his status as a career offender.¹⁰ After the Court denied Defendant's motion for reconsideration,¹¹ Defendant asked the Tenth Circuit for authorization to file a second or successive petition under § 2255. The Tenth Circuit denied his request.¹² Now, Defendant seeks resentencing under the Fair Sentencing Act and the FSA.

APPLICABLE LAW

Defendant asks the Court to modify his 240-month custodial sentence for possession with intent to distribute 500 grams or more of cocaine in violation of §§ 841(a)(1) and 841(b)(1)(B). "A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10^th Cir. 1996). In 18 U.S.C. § 3582(c) Congress provided courts with three statutory sources of authority to modify imposed sentences: (1) modification under the specific circumstances delineated in § 3582(c); (2) correctional modification under the terms of FederalRule of Criminal Procedure 35; or (3) modification based on the invalidity or impropriety of a sentence under 18 U.S.C. § 3742. United States v. Spaulding, 802 F.3d 1110, 1121 n.11 (10^th Cir. 2015) (discussing three sources of authority for modification). Under § 3582(c)(1)(B)¹³ modification is appropriate "to the extent otherwise expressly permitted by statute." Defendant argues that the Fair Sentencing Act as made retroactive by the FSA gives the Court statutory authorization to modify his sentence.

The Fair Sentencing Act amended certain provisions of the 1986 Anti-Drug Abuse Act (1986 Drug Act), 100 Stat. 3207. The 1986 Drug Act established mandatory minimum penalties of 5 and 10 years for drug offenses according to the type and quantity of drugs involved. Dorsey v. United States, 567 U.S. 260, 266 (2012). Significantly, powder cocaine¹⁴ and cocaine base¹⁵ were treated differently under the 1986 Drug Act. Offenders convicted of possessing 500 grams or more of powder cocaine faced a minimum sentence of 5 years, while 10,000 grams of powder cocaine triggered a minimum sentence of 10 years. 21 U.S.C. §§ 841(b)(1)(A)(ii), (B)(ii) (2006 ed. and Supp. IV); see also Dorsey, 567 U.S. at 266. In contrast, an offender convicted for a cocaine base offense would face a minimum of 5 years for only 5 grams of cocaine base, while 50 grams of cocaine base would trigger a 10-year minimum sentence. 21 U.S.C. §§ 841(b)(1)(A)(iii), (B)(iii) (2006 ed. and Supp. IV); see also Dorsey, 567 U.S. at 266. This createda 100:1 sentencing disparity where "every gram of crack cocaine [was treated] as the equivalent of 100 grams of powder cocaine." Kimbrough v. United States, 552 U.S. 85, 96 (2007). The Guidelines used the offense levels for the 5- and 10-year minimum sentences in the 1986 Drug Act "as reference points and then extrapolating from those two amounts upward and downward to set proportional offense levels for other drug amounts." Dorsey, 567 U.S. at 268 (citing Kimbrough, 552 U.S. at 97). In 2010, The Fair Sentencing Act amended § 841(b)(1) to reduce the inequality between penalties for powder cocaine and cocaine base.

Section 2 of the Fair Sentencing Act increased the threshold quantities of cocaine base that activates § 841(b)(1)(A)(iii) from 50 grams to 280 grams, and it increased the quantity of cocaine base that activates § 841(b)(1)(B)(iii) from 5 grams to 28 grams. See 124 Stat. 2372 § 2(a), (2010) (codified in 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii)); see also Dorsey, 567 U.S. at 269 (discussing purpose and effect of Fair Sentencing Act). By increasing the quantities of cocaine base that triggered these offenses, the Fair Sentencing Act reduced the cocaine base to cocaine powder penalty imbalance from a 100 to 1 ratio to an 18 to 1 ratio. Dorsey, 567 U.S. at 269. Subsequently, the Sentencing Commission changed the Guidelines to implement the Fair Sentencing Act. These changes resulted in reductions of guideline ranges applicable to cocaine base offenses. See U.S.S.G. § 1B1.10 (describing policy and process due to a reduction in a Guidelines range).

The Fair Sentencing Act took effect on August 3, 2010. Dorsey, 567 U.S. at 270. After its passage, section 2 of the Fair Sentencing Act applied both to §§ 841(b)(1)(A)(iii) and (B)(iii) offenses that occurred after its enactment and to those defendants who offended prior to the Fair Sentencing Act's enactment but were sentenced after its effective date. Id. at 281. However, the Fair Sentencing Act did not apply retroactively to those who had been sentenced before August3, 2010. That changed on December 21, 2018 when the FSA made some of the Fair Sentencing Act's amendments retroactive. Pub. L. No. 115-319, 132 Stat. 5194, § 404 (Dec. 21, 2018).

Section 404 of the FSA authorizes the resentencing of defendants sentenced before August 3, 2010 for a "covered offense." See FSA, 404(a). Section 404(a) 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."¹⁶ Id. Significantly, section 2 of the Fair Sentencing Act amends only the two subsections of § 841(b)(1) that address penalties for cocaine base—§§ 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii). Under 404(b), a court "may . . . impose a reduced sentence as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed." Id. § 404(b). But a court may not consider a motion made under § 404 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 . . . or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits." Id. § 404(c). A court has discretion to determine whether a reduction under § 404 is warranted. Id.

ANALYSIS

Defendant argues that § 3582(c)(1)(B) coupled with the Fair Sentencing Act and the FSA permits the Court to modify his sentence.¹⁷ To be eligible for sentence modification under theFair Sentencing Act as made retroactive by the FSA, a defendant must establish three elements: (1) he was convicted for violating a federal criminal statute modified by section 2 or 3 of the Fair Sentencing Act; (2) he committed the qualifying offense before August 3, 2010; and (3) a court has not previously modified or considered his sentence on the merits under the Fair Sentencing Act. See FSA § 404(a)-(c). Both parties agree that Defend...