United States v. Ferrell

UNITED STATES OF AMERICA, v. BRANDON FERRELL, Petitioner.

Criminal Action No. ELH-14-0109

United States District Court, D. Maryland

April 15, 2022

MEMORANDUM

Ellen L. Hollander, United States District Judge.

The self-represented Petitioner, Brandon Ferrell, filed a “Motion For Reconsideration of Judgment” on January 21, 2021. ECF 96 (the “Motion”). He also submitted exhibits. Despite the title of the submission, it appears to constitute a motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Indeed, that is the provision of law that Ferrell expressly cites in his Motion. Id. at 1. Therefore, I shall construe ECF 96 as a motion for compassionate release.^[1] The government opposes the Motion. ECF 101. Ferrell has not replied.

No hearing is needed to resolve the Motion. For the reasons that follow, I shall deny the Motion.

I. Factual and Procedural Background

In March 2014, Ferrell and codefendant Stephanie Smith were charged with multiple crimes. ECF 1. In particular, Ferrell was charged as follows: conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count One); four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts Two, Four, Six, and Eight); four counts of possessing and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Three, Five, Seven, and Nine); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C § 922(g) (Count Ten).

The case was initially assigned to Judge William D. Quarles Jr.^[2] On October 1, 2014, Petitioner entered a plea of guilty before Judge Quarles to Counts Two and Three of the Indictment. ECF 22 (Rearraignment); ECF 25 (Plea Agreement). The plea was tendered under Fed. R. Crim. P. 11(c)(1)(C). ECF 25, ¶ 6(c). In the Plea Agreement, the parties stipulated that the § 924(c) offense in Count Three was based on the Hobbs Act robbery offense in Count Two. Id. ¶ 2. Under the Plea Agreement, the parties stipulated to a sentence of fifteen years for Count Two and seven years, consecutive, for Count Three, for a total sentence of 22 years (264 months). Id. ¶ 6(c).

Specifically, the parties agreed with respect to the offense elements of Counts Two and Three as follows, ECF 25, ¶ 2:

Count Two:

a. On or about September 27, 2013, the Defendant, acting with Stephanie Amber Smith, interfered with interstate commerce and the movement of articles and commodities in such commerce through the commission of the robbery of a 7-Eleven convenience store located at 3500 Boston Street, Baltimore, Maryland;

b. The robbery involved the taking of $160.00, more or less, from another by the wrongful use of actual or threatened force or violence;

c. The 7-Eleven convenience store located at 3500 Boston Street, Baltimore, Maryland was engaged in the retail sales of consumer products obtained from vendors within and outside the state of Maryland and, thus, affected interstate commerce.

Count Three:

a. The Defendant, acting with Stephanie Amber Smith, did possess and brandish a firearm during and in relation to the robbery of the 7-Eleven convenience store;

b. The Defendant knowingly possessed and brandished said firearm;

c. The robbery of the 7-Eleven convenience store is a crime which may be prosecuted in a court of the United States.

In addition, in the Plea Agreement, Ferrell agreed that he committed three other gunpoint robberies of convenience stores on September 29, 2013. Id. ¶ 6(a); see also ECF 101 at 15. These crimes occurred just two days after the 7-Eleven robbery at issue here.

Sentencing was held on December 17, 2014. ECF 45. At the time, Ferrell was 23 years old. See Presentence Report (the “PSR, ” ECF 40) at 3. The PSR reflected a combined adjusted offense level of 29. Id. ¶ 39. After deductions for acceptance of responsibility, Ferrell had a total offense level of 26. Id. ¶ 43. The PSR also considered the three additional robberies of September 29, 2013, to which Ferrell had stipulated in the Plea Agreement. Id. ¶¶ 11, 18-34.

In addition, the PSR reflected that Ferrell had eleven prior adult criminal convictions. Id. ¶¶ 51-60. In addition, he had five juvenile adjudications, of which one scored points. Id. ¶¶ 45-49. This yielded a subtotal of 17 criminal history points. Id. ¶ 61. And, two points were added because Ferrell committed the instant offense while under mandatory supervision for robbery, resulting in a total of 19 points. Id. ¶¶ 62-63. This yielded a criminal history category of VI. Id. ¶ 63. Some of the prior offenses are discussed below.

With a final offense level of 26 and a criminal history category of VI, the advisory sentencing guidelines (“Guidelines” or “U.S.S.G.”) called for a period of incarceration ranging between 120 months and 150 months, as well as the minimum term of 84 months of imprisonment, consecutive, required by statute for Count Three. Id. ¶ 87. So, the Guidelines totaled 204 months to 234 months. However, based on the stipulated conduct concerning three other armed robberies, Ferrell agreed in the Plea Agreement to an upward departure and variance from the Guidelines for Count Two. ECF 25, ¶ 6(a); see also ECF 40, ¶¶ 5, 11, 12-34, 88.

Petitioner is 5'8” tall and, at sentencing, he weighed 160 pounds. ECF 40, ¶ 78. Petitioner was married in 2013. Id. ¶ 75. He and his wife have one child together, and his wife has two other children who regard Ferrell as their father. Id.

According to the PSR, Petitioner reported that he was in good health. Id. ¶ 78. But, his wife advised that he used an inhaler when needed for asthma. Id. He was shot in the buttocks in 2010. Id. Ferrell stated that prior to his arrest, he drank alcohol three times per week; began using marijuana daily at the age of 12 or 13; began using heroin almost daily at the age of 18; and abused ecstasy and Percocet. Id. ¶ 80.

The PSR noted that Ferrell's father has never been a part of his life, and his mother died from medical problems when Ferrell was eleven years of age. Id. ¶ 74. While Ferrell's mother was alive, she was verbally and emotionally abusive towards Ferrell. Id. ¶ 79. After his mother's death, Petitioner lived with his aunt, who became his legal guardian. Id. ¶ 74. However, he stated that they did not maintain a close relationship. Id.

Notably, the defendant was diagnosed with behavioral issues when he was young. Id. ¶ 79. And, while in pretrial custody for this case, he was prescribed medications for depression and anxiety. Id.

The PSR reviewed Ferrell's prior record. In 2009 Ferrell was convicted in the District Court for Baltimore City of theft of less than $100. He was sentenced to six months' probation before judgment. Id. ¶ 51.

Ferrell was convicted in 2011 in the Circuit Court for Baltimore County of robbery, for which he was sentenced to eight years of incarceration, five of which were suspended. Id. ¶ 53.

Ferrell was 19 years old at the time of the offense. Id. The PSR recounts that, according to the Statement of Probable Cause, Ferrell and two others “were driving in a vehicle that hit an elderly woman.” Id. When the woman exited her vehicle, one of the assailants grabbed her purse. Id. The three individuals then got back into their vehicle and fled, dragging the victim by the vehicle. Id. Ferrell was released on mandatory supervision in 2013. Id. As of sentencing in this case, a violation of probation was pending. Id.

Also in 2011, Ferrell was convicted in the Circuit Court for Baltimore County of a “Rogue & Vagabond” offense. ECF 40, ¶ 54. He was sentenced to one year and one day of incarceration. Id. ¶ 54.

In October 2014, Ferrell pled guilty in the Circuit Court for Baltimore City to multiple charges of armed robbery, conspiracy to commit armed robbery, and the use of a firearm in a crime of violence, all of which occurred in October 2013. Id. ¶¶ 59, 60.^[3] Disposition was held sub curia until December 18, 2014, i.e., the day after sentencing in this case. Id. The PSR recounts that, according to the Statement of Charges, Ferrell and a codefendant committed two robberies at gunpoint, in which the victims sustained injuries to their heads after being hit with the gun. Id. A related case of felon in possession of a firearm was set for trial for December 18, 2014. Id. ¶ 60.

In addition, between 2011 and 2014, Ferrell was convicted five times of driving without a license. Id. ¶¶ 52, 55-58. The first time, in the Circuit Court for Baltimore City, Petitioner was also convicted of attempting to elude police by failing to stop, and sentenced to 18 months of probation before judgment. Id. ¶ 52. In November 2011, a violation of probation hearing was held, and Ferrell was sentenced to one year and two months of imprisonment, with credit for five months and 17 days. Id. The remaining driving convictions were in the District Court for Baltimore City, and resulted in sentences of between 30 and 60 days of incarceration. In one case, the period of incarceration was suspended. Id. ¶¶ 55-58.

Of Ferrell's juvenile adjudications, the only one to score points involved the offense of motor vehicle theft in 2008 in Anne Arundel County. ECF 40, ¶ 49. Ferrell was seventeen years old at the time of the offense. Id. Significantly, he was committed to the Department of Juvenile Services and placed at Turning Point Youth Center from August 14, 2008 through May 22, 2009. Id. About a month later, he was committed to Cheltenham Youth Facility for 46 days. Then, on May 26, 2009, he was placed at another youth facility, where he remained for 25 days, until his arrest as an adult on June 20, 2009. Id. Four other juvenile adjudications, between 2005 and 2008, scored no points. Id. ¶¶ 45-48.

In 2009, while Petitioner was at Turning Point...