United States v. Ellerby

471 F.Supp.3d 683

UNITED STATES of America

v.David ELLERBY

Crim. No. CCB-07-064

United States District Court, D. Maryland.

Signed July 9, 2020

Paul M. Tiao, Rod J. Rosenstein, Sandra Wilkinson, Office of the United States Attorney, Tonya Kelly Cronin, Baltimore, MD, Ellen E. Nazmy, US Attorneys Office, Greenbelt, MD, for United States of America.

MEMORANDUM

Catherine C. Blake, United States District Judge

On May 12, 2020, the court granted David Ellerby's motion for a reduced sentence pursuant to Section 404 of the First Step Act. (ECF 319, 320). Ellerby was released from federal custody shortly thereafter. Now pending are the government's motions for a stay of judgment (ECF 321), and for reconsideration and resentencing, (ECF 322). The motions are fully briefed, and no hearing is necessary.¹ For the reasons explained below, both motions will be denied.

BACKGROUND

The facts and procedural history of Ellerby's case are more fully set out in the court's May 12, 2020, Memorandum, (ECF 319), and the court here recites only the minimum facts necessary to decide the present motions.

Ellerby was sentenced in 2008 to life in prison for selling crack cocaine. In 2016, pursuant to an agreement with the government whereby Ellerby waived his right to file any future post-conviction motions (except those "not related to the substance of his case or his sentence"), Ellerby's sentence was reduced to twenty years (the "2016 Agreement"). (ECF 287). In 2019, Ellerby filed a motion for a reduced sentence under Section 404 of the First Step Act of 2018. (ECF 308). The government opposed the motion, arguing in part that Ellerby's filing of a First Step Act motion violated the 2016 Agreement. After subsequent correspondence was filed in March and April 2020, the court ultimately found that (1) the 2016 Agreement did not encompass First Step Act motions; (2) Ellerby was eligible for First Step Act relief; and (3) the factors set forth in 18 U.S.C. § 3553(a) weighed in favor of imposing a reduced sentence of time served.

On May 12, 2020, the court ordered Ellerby's sentence reduced to a total of time served. At the time, Ellerby was being housed at a federal facility that was experiencing an outbreak of COVID-19. The next day, the government filed a motion to stay the judgment for 30 days, effectively asking the court to authorize Ellerby's continued incarceration pending the government's filing of a motion for reconsideration. (ECF 321). Nowhere in the opposition to Ellerby's First Step Act motion, (ECF 311), nor in the later correspondence in response to the emergency motion, (ECF 317), did the government ask for a delay of the effective date of any decision in Ellerby's favor on the basis that it might seek a stay pending reconsideration. The court had no opportunity to rule on the motion to stay—to which Ellerby had not yet responded—before Ellerby was released.

On May 26, 2020, the government filed a motion for reconsideration of the court's decision to impose a reduced sentence. (ECF 322). The government argues that the court's conclusion regarding the inapplicability of the 2016 Agreement to Ellerby's First Step Act motion is in conflict with three Fourth Circuit cases— United States v. Blick , 408 F.3d 162 (4th Cir. 2005), United States v. Archie , 771 F.3d 217 (4th Cir. 2014), and United States v. Cornette , 932 F.3d. 204 (4th Cir. 2019) —none of which were cited in the government's opposition to the First Step Act motion. As relief, the government asks that the court resentence Ellerby and impose a sentence between 20 and 25 years.

ANALYSIS

The crux of this dispute is whether Ellerby, by the 2016 Agreement, waived his right to file a motion for a reduced sentence under Section 404 of the First Step Act. This issue was previously briefed by the parties; the government opposed Ellerby's First Step Act motion largely on the basis that the 2016 Agreement precluded the motion. (See ECF 311). In the May 12, 2020, Memorandum, the court resolved this issue in Ellerby's favor. First, the court noted that a defendant can waive only "known right[s]." United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When Ellerby entered the 2016 Agreement, he could not have known that future legislation would enable him to seek further reduction of his sentence based on statutory changes to the sentencing range. Second, even if the First Step Act had existed at the time of the 2016 Agreement, the court was not persuaded that the broadly worded waiver encompassed this type of First Step Act motion. While no Court of Appeals has yet addressed the question, the court analyzed cases from the Tenth, Seventh, and Fifth Circuits, where the courts found that broadly worded waivers of the right to file post-conviction motions did not encompass motions filed pursuant to 18 U.S.C. § 3582(c)(2), which authorizes sentence reductions when a sentencing range has been lowered by the Sentencing Commission. See United States v. Chavez-Salais , 337 F.3d 1170, 1172–73 (10th Cir. 2003) (defendant's waiver of right to challenge sentence in "any collateral attack" did not include "his right to bring a later motion to modify his sentence under 18 U.S.C. § 3582(c)(2)"); United States v. Woods , 581 F.3d 531, 533, 536 (7th Cir. 2009), abrogated on other grounds by United States v. Taylor , 778 F.3d 667 (7th Cir. 2015) (similar); United States v. Cooley , 590 F.3d 293, 297 (5th Cir. 2009) (similar). Mindful that a waiver agreement "should be interpreted narrowly against the government," see Cooley , 590 F.3d at 297 ; cf. United States v. Yooho Weon , 722 F.3d 583, 588 (4th Cir. 2013), the court found that the 2016 Agreement did not preclude Ellerby's First Step Act motion.

The government claims that the court's conclusion conflicts with the Fourth Circuit cases Blick , Archie , and Cornette . The court disagrees. In Blick , the defendant waived the right "to appeal ... any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined)[.]" 408 F.3d at 165. On appeal, the defendant argued that he was entitled to resentencing pursuant to United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (declaring the federal sentencing guidelines advisory rather than mandatory), which was decided after his sentencing. Id. at 164. The Fourth Circuit held that the appeal waiver barred the argument, explaining that the defendant's Booker argument was a challenge to "the manner in which [his] sentence was determined," which was expressly prohibited by the waiver. Id. at 170. In Archie , the Fourth Circuit summarized its holding in Blick as follows: "We concluded Blick's claim was within the scope of his valid appeal waiver because, ‘[a]lthough the law changed after Blick pled guilty, his expectations (as reflected in the plea agreement) did not.’ " Archie , 771 F.3d at 222 (quoting Blick , 408 F.3d at 173 ). Applying the reasoning of Blick , the Archie court held that a defendant's argument under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),² decided after the defendant's sentencing, was similarly barred by the appeal waiver. Archie , 771 F.3d at 222 ("Archie's assertion that he is entitled to the benefit of Alleyne on appeal is indistinguishable from the appellant's argument in Blick ."). And in Cornette , the Fourth Circuit held that the defendant's appeal waiver did not bar his argument "that by imposing a sentence under the now unconstitutional residual clause of the [Armed Career Criminal Act], the district court exceeded its statutory authority to sentence him." See 932 F.3d at 208–09. In so holding, the Cornette court explained:

To be clear, this does not mean that a subsequent change in sentencing law renders an otherwise valid appeal waiver invalid. Our own precedent establishes that when a sentencing law undergoes a non-retroactive change, a defendant who waived his right to appeal a sentence imposed under the old regime remains bound by that waiver even if resentencing under the new regime might otherwise entitle him to new rights or subject him to different penalties.

Id. at 210 (4th Cir. 2019) (distinguishing Blick and Archie ).

The government's invocation of Blick , Archie , and Cornette ignores a fundamental difference between those cases and this one. Ellerby's First Step Act motion was not an attack on his sentence nor an argument that he was entitled to a new one. Indeed, a Section 404 First Step Act motion is not an "appeal," nor is it a "post-conviction motion" in the traditional sense. See United States v. Jones , No. JKB-96-0399, ECF No. 623 at 5, 2020 WL 886694 (D. Md. Feb. 24, 2020) (a Section 404 First Step Act motion is "not collateral review"); cf. Woods , 581 F.3d at 537 (the "conventional understanding of the term ‘post-conviction proceeding’ " does not encompass § 3582(c)(2) motions, which do not challenge the substance of a sentence or conviction).³ Like § 3582(c)(2) motions, a motion for a reduced sentence under Section 404 of the First Step Act is not a collateral attack; it requests that the court, in its newly-afforded discretion, impose a reduced sentence.

Section 404 First Step Act motions can also be analogized to motions brought pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the "compassionate release statute"), which also was amended as part of the First Step Act. In United States v. Burrill , the defendant waived, as part of his plea agreement, the right to seek relief under section 3582. 445 F.Supp.3d 22, 25-26 (N.D. Cal. 2020). The district court found that because "[t]he First Step Act, passed more than a year later, for the first time allowed section 3582 sentence reductions upon a defendant's motion," the waiver did not encompass his right to petition the court for compassionate release, "as he could not have ‘knowingly waived rights that were not in existence, or even contemplated, at the time of his plea.’ " Id. ...