United States v. Love

634 F.Supp.3d 273

UNITED STATES of America, Plaintiff, v. Tawayne Devone LOVE, Defendant.

CRIMINAL ACTION NO. 2:03-00187-01

CIVIL ACTION NO. 2:08-cv-00192

United States District Court, S.D. West Virginia, Charleston Division

Signed October 7, 2022

J. Christopher Krivonyak, John J. Frail, Gary L. Call, Nicholas Miller, United States Attorney's Office, Charleston, WV, John L. File, United States Attorney's Office, Beckley, WV, for Plaintiff.

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

There are seventeen filings pending before the court, including Defendant Tawayne Love's Motion for Reduction of Sentence pursuant to the First Step Act. [ECF No. 786]. Mr. Love is a federal prisoner, who has been incarcerated for eighteen years or 38% of his life, largely based on his status as a career offender at sentencing. A defendant is a career offender under the United States Sentencing Guidelines if, among other things, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a) (emphasis added). One of Mr. Love's qualifying felony convictions was for Possession with Intent to Deliver Marijuana in violation of Pennsylvania law. Since his marijuana conviction nearly 30 years ago, federal and state law reflect a radical policy shift towards the decriminalization of marijuana, which mirrors the contemporary views of society. Indeed, on October 6, 2022, President Joe Biden "pardoned all . . . federal offenses of simple marijuana possession" since it became a crime in the 1970s and tasked the Department of Health and Human Services with "review[ing] how marijuana is scheduled under federal law." Kevin Liptak, Biden pardons all federal offenses of simple marijuana possession in first major steps toward decriminalization, CNN (Oct. 6, 2022, 5:39 PM), https://www.cnn.com/2022/10/06/politics/marijuana-decriminalization-white-house-joe-biden. The President encouraged governors to similarly pardon individuals convicted of state marijuana possession. Id.

Given the changing laws and views around marijuana, if Mr. Love was sentenced today, I would not consider his marijuana conviction when imposing his sentence, as it does not "promote respect for the law" to enhance Mr. Love's sentence based on his conviction on one hand while the substance for which he was convicted is being decriminalized on the other. See 18 U.S.C. § 3553(a). At bottom, I cannot find it fair to preserve a 25-year sentence that rests in part on a marijuana conviction. For this and all of the reasons discussed below, Mr. Love's Motion to Reduce Sentence, [ECF No. 786], is GRANTED.

First, I will address Mr. Love's Motion to Reduce Sentence [ECF No. 786]. I will address the remaining motions at the end of this opinion.

I. Background

On June 21, 2004, Mr. Love pleaded guilty to one count of Possession with Intent to Distribute 50 Grams or More of Cocaine Base and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime. [ECF No. 202]. At the time, a conviction for Possession with Intent to Distribute 50 Grams or More of Cocaine Base carried a mandatory minimum sentence of 10 years imprisonment. 21 U.S.C. § 841(b)(1)(A). A conviction for Possession of a Firearm in Furtherance of a Drug Trafficking Crime carried a mandatory minimum sentence of 5 years imprisonment, to be served consecutively to any other penalty. 18 U.S.C. § 924(c)(1)(A)(i). The potential maximum sentence for each conviction was life imprisonment. Id.; 21 U.S.C. § 841(b)(1)(A).

In this case, the Government filed an information pursuant to 21 U.S.C. § 851 qualifying Mr. Love as a repeat offender. [ECF No. 151]. A defendant is a repeat offender if he committed the violation for which he is being sentenced "after a prior conviction for a felony drug offense has become final." 21 U.S.C. § 841(b)(1)(A). Under that scheme, if the Government properly filed an information listing the qualifying felony, then the defendant was subject to a mandatory minimum penalty of 20 years imprisonment. Id. Here, the Government properly filed an information listing Mr. Love's 1994 Pennsylvania conviction for possession with intent to distribute marijuana. [ECF No. 151]. Accordingly, at the time of his sentencing, Mr. Love faced a mandatory minimum sentence of 25 years: a 20-year mandatory minimum as a repeat offender convicted of Possession with Intent to Distribute 50 Grams or More of Cocaine Base, and a 5-year mandatory minimum to be served consecutively to any other term of imprisonment for his gun charge.

At sentencing, I used the Sentencing Guidelines to calculate Mr. Love's advisable sentencing range. I found that the amount of cocaine base attributable to Mr. Love was 86.4 grams of cocaine base,¹ which under the 2004 Guidelines established a base offense level of 32. U.S.S.G. § 2D1.1(c)(4) (2004). He received a 2-level enhancement for obstruction of justice under § 3C1.1 because Mr. Love, at a hearing on his motion to withdraw his guilty plea, provided materially false information to the court. That enhancement increased his offense level to 34. [ECF No. 454, at 5:16-7:17]. His Criminal History Category as calculated by the Guidelines was IV. [ECF No. 784, at 10]. However, I applied the career offender enhancement pursuant to § 4B1.1, increasing his total offense level to 37 and automatically placing his criminal history at Category VI. [ECF No. 454, at 24:2-5].

Therefore, Mr. Love's Sentencing Guidelines range for his drug charge was 360 months to life imprisonment, followed by a mandatory consecutive term of 5 years (60 months). Id. at 36:9-23. I sentenced Mr. Love to a term of imprisonment of 300 months followed by 10 years of supervised release for his drug charge, and a term of imprisonment of 60 months followed by 5 years of supervised release for his gun charge. [ECF No. 432]. The terms of imprisonment on each charge run consecutively, for a total of 360 months, and the terms of supervised release run concurrently on each charge, for a total of 10 years. [ECF No. 454, at 61:5-10].

On May 13, 2019, Mr. Love filed a Motion to Reduce Sentence pursuant to section 404(b) of the First Step Act. [ECF No. 786]. I found that Mr. Love was entitled to some relief under section 404(b) and granted his motion insofar as I reduced his sentence of supervised release from a term of 10 years to a term of 8 years. [ECF No. 796]. I denied his Motion regarding his term of imprisonment. Id. On August 6, 2020, the United States Court of Appeals for the Fourth Circuit vacated that decision and remanded for reconsideration in light of United States v. Chambers, 956 F.3d 667 (4th Cir. 2020), which was issued after my ruling on Defendant's Motion. See United States v. Love, 814 F. App'x 779, 780 (4th Cir. 2020).

On October 5, 2020, I again granted in part and denied in part Mr. Love's Motion. [ECF No. 814]. After recalculating the Guidelines as required by Chambers, I found that Mr. Love's Guidelines range was not changed by intervening law. Id. at 6. In light of this, I again granted his Motion in so far as I reduced his sentence of supervised release from a term of 10 years to a term of 8 years but denied his Motion in regard to his term of imprisonment. Id. at 10. On June 7, 2021, the Fourth Circuit vacated that decision and remanded for reconsideration in light of United States v. Collington, 995 F.3d 347 (4th Cir. 2021), and United States v. Lancaster, 997 F.3d 171 (4th Cir. 2021), which were issued after my ruling on Defendant's Motion. United States v. Love, 849 F. App'x 417, 417 (4th Cir. 2021). The Fourth Circuit instructed me to fully address Mr. Love's "argument that he was no longer a career offender under current law" and to more fully address the § 3553(a) factors, including Mr. Love's post-conviction conduct. Id. at 418.

The First Step Act of 2018 expressly allows courts to modify a term of imprisonment. United States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019). Modifying a sentence under § 3582(c)(1)(B) does not require a hearing or a defendant's presence. See, e.g., United States v. Jackson, No. 3:99-00015-05, 2019 WL 6245759, at *2 (S.D. W. Va. Nov. 21, 2019) ("Whether or not a court decides to resentence a defendant, the language of the First Step Act does not require a hearing."); Wright v. United States, 393 F. Supp. 3d 432, 441 (E.D. Va. 2019), order amended and superseded, 425 F. Supp. 3d 588 (E.D. Va. 2019). "It is within the sound judgment of the Court to determine if an evidentiary or sentencing hearing is necessary to address the issues of a particular case." Jackson, 2019 WL 6245759, at *2. As I previously reasoned, a hearing in this case on Defendant's Motion is unnecessary.

II. Statutory Penalties

As I previously held, Mr. Love is eligible for a sentence reduction under section 404(b) of the First Step Act. See [ECF No. 796]. Congress passed the First Step Act to remedy the prior disparate treatment of crimes involving cocaine base (also known as crack cocaine) and powder cocaine. Wirsing, 943 F.3d at 176-77. The Act authorized courts "to provide a remedy for certain defendants who bore the brunt of a racially disparate sentencing scheme." Chambers, 956 F.3d at 674. Section 404(b) directs that a sentencing court may, upon a defendant's motion, "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed." First Step Act § 404(b). Thus, any defendant sentenced before August 3, 2010—the effective date of the Fair Sentencing Act—and who did not receive the benefits of sections 2 and 3 of the Fair Sentencing Act is eligible for a sentencing reduction under the First Step Act.

Section 2 of the Fair Sentencing Act increased the amount of cocaine base required to trigger the highest mandatory minimum punishments. Prior to the Fair Sentencing Act, Possession with the Intent to Distribute 50 Grams or...