United States v. Roberts

1

UNITED STATES OF AMERICA, v. AUSTIN ROBERTS, III, Defendant.

CRIMINAL ACTION No. ELH-11-0358

United States District Court, D. Maryland

October 17, 2022

AMENDED MEMORANDUM OPINION ^[1]

Ellen L. Hollander United States District Judge

Defendant Austin Roberts, III is currently serving a 228-month sentence (ECF 383) for the offense of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine, and a quantity of cocaine base, in violation of 18 U.S.C. § 846. The sentence dates to December 4, 2012. ECF 370 at 1; ECF 606-5 at 2. According to Roberts's Inmate Profile, he has a projected release date of August 24, 2029. ECF 606-9 at 1.

Roberts has filed a pro se motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), based on his purported vulnerability to COVID-19 or, in the alternative, a request for sentence reduction under Section 404 of the First Step Act. See ECF 591. His motion is supported by two exhibits. ECF 591-3; ECF 591-4. Through appointed counsel Roberts filed a supplemental memorandum. ECF 604 (the “Supplemental Memorandum”).^[2] It is supported by twelve exhibits. ECF 606. I shall refer to ECF 591 and 604 collectively as the “Motion.”

The Government opposes the Motion. ECF 616 (the “Opposition”). The Opposition is supported by three exhibits. See ECF 616-1; ECF 616-2; ECF 616-3. Roberts replied. ECF 619 (the “Reply”).

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion, in part. In particular, I shall reduce Roberts's sentence to 175 months of imprisonment. See ECF 606-5.

I. Factual Background

Roberts and two others were indicted on June 29, 2011, and charged with drug conspiracy. ECF 1. A Superseding Indictment was filed on September 14, 2011, naming Roberts and eight others. ECF 44. In particular, Roberts was charged in Count One with conspiracy to distribute and possess with intent to distribute one kilogram of heroin, five kilograms or more of cocaine, and cocaine base, in violation of 21 U.S.C §§ 846 and 841(a)(1).

On May 10, 2013, Roberts entered a plea of guilty to Count One. ECF 329; ECF 330 (Plea Agreement). Of significance here, the plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C) (“C plea”), by which the parties agreed to a sentence of 228 months of imprisonment (19 years) as the appropriate disposition of the case. Id. ¶¶ 5, 10; see also ECF 369 (Transcript of proceedings of May 10, 2013). After deductions for acceptance of responsibility, Roberts had a final offense level of 34. See ECF 370 (Presentence Report, “PSR”), ¶ 25.

The Plea Agreement contained a stipulated Statement of Facts. ECF 330 at 9-10. Notably, Roberts agreed that he conspired to distribute “over 50 kilograms of cocaine and a kilogram of heroin,” as well as cocaine base. Id. at 9. And, in the Plea Agreement, Roberts waived his right to appeal, except as to any sentence in excess of 19 years of imprisonment. Id. ¶ 14.

The transcript of the Rule 11 proceeding is docketed at ECF 545. It reflects that the prosecution recounted, inter alia, that between 2007 and December 2012, Roberts conspired to distribute, distributed, and directed the distribution “of well over 50 kilograms of cocaine and a kilogram of heroin.” Id. at 40; see also ECF 330 at 9. In addition, the conspiracy involved an unspecified quantity of cocaine base. Id. During the investigation, phone calls were intercepted, search warrants were executed, Roberts used several false identities, and he twice fled from law enforcement to avoid apprehension. ECF 545 at 40-44.

At the guilty plea proceeding, while under oath (id. at 6), Roberts acknowledged the accuracy of the government's factual summary. Id. at 44. He also admitted that he had committed the crimes summarized by the government. Id.

The Presentence Report was docketed on July 16, 2013. ECF 370. Under the equivalency table found in § 2B1.1 of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”), Application Note 8(D), the marijuana equivalent for the agreed drug quantity amounted to 11,000 kilograms. Id. ¶ 17. Under U.S.S.G. § 2D1.1(c)(2), this gave rise to a base offense level of 36. Id.

However, ¶ 25 of the PSR reflects a career offender designation under U.S.S.G. § 4B1.1. Therefore, Roberts's offense level increased to 37. And, after three deductions for acceptance of responsibility under U.S.S.G. § 3E1.1 (id.¶¶ 23, 26), Roberts had a final offense level of 34. Id. ¶ 27.

In addition, the PSR reflected a total of 11 criminal history points, which equated to a criminal history category of V. Id. ¶ 48. However, based on the career offender designation, the defendant's criminal history category was increased to VI under U.S.S.G. § 4B1.1. Id. ¶ 49.

The career offender designation was based on two prior felony drug convictions. In particular, in 1995 Roberts was convicted in the Circuit Court for Wicomico County, Maryland, Case 95CR0051, of Felonious Possession of Cocaine. Id. ¶ 39. The PSR indicates that, according to the charging instrument, “the defendant possessed cocaine in sufficient quantity to reasonably indicate under all circumstances an intent to distribute.” Id. ¶ 40. Roberts received a 14-year sentence, with all but four years suspended, followed by probation. Id.¶ 39. He later violated his probation and received a 10-year sentence, consecutive to the five-year sentence imposed in Case 97CR0587, for the offense of Reckless Endangerment, as referenced in ¶¶ 41 and 42 of the PSR. See id. ¶ 39.

The second qualifying predicate was a 1999 conviction in Case 02-K-99-000326, in the Circuit Court for Anne Arundel County, for the offense of possession of CDS with intent to distribute. Id.¶ 43. Roberts received a sentence of two years' imprisonment. Id.; see also id. ¶ 44.

By statute, Roberts faced a mandatory minimum term of imprisonment of 10 years, with a maximum term of imprisonment of life, under 21 U.S.C. § 841(b)(1)(A). See ECF 330, ¶ 3; ECF 370, ¶ 57. As a career offender, with a final offense level of 34 and a criminal history category of VI, the advisory Guidelines called for a period of incarceration ranging from 262 to 327 months. ECF 370, ¶ 58. But, in the absence of a career offender designation, Roberts would have had a final offense level of 33, and a criminal history category of V, with Guidelines calling for a period of incarceration ranging from 210 to 262 months.

Sentencing was held on August 9, 2013. ECF 382. At the time, Roberts was 37 years old. ECF 370 at 1. The sentencing transcript is docketed at ECF 399. At sentencing, the government described the case as “serious,” noting that it involved “a massive amount of drugs ....” Id. At 7. Roberts allocuted, asking the Court to “go along with [his] plea ....” Id. at 11.

In accordance with the terms of the C Plea, the Court imposed the agreed upon term of imprisonment of 228 months. See ECF 383 (Judgment); ECF 384 (Statement of Reasons). The sentence of 228 months was well below the career offender Guidelines range and towards the low end of the non-career offender Guidelines range.

No appeal was noted. However, Roberts subsequently filed a post-conviction petition under 28 U.S.C. § 2255. See ECF 405. He alleged, inter alia, ineffective assistance of counsel in regard to the career offender designation. By Memorandum Opinion (ECF 574) and Order (ECF 575) of December 16, 2019, I denied the post-conviction petition.

Roberts submitted a request for Compassionate Release to the Warden. ECF 591-1. The Warden denied Roberts's request. ECF No. 591-1. The Motion followed.

In his Motion, Roberts asserts that “extraordinary and compelling reasons exist to grant relief in light of Roberts' medical conditions carrying a ‘high risk' for developing serious illness or death if infected with COVID-19.” ECF 591 at 3; ECF 604 at 3. In particular, Roberts has been diagnosed with prediabetes, “Chronic Embolism,” “thrombosis of vein,” and “Hypertension.” ECF 591 at 11-13.

Further, Roberts asks the Court to reduce his sentence because, if he were sentenced today, he would no longer qualify as a career offender under U.S.S.G. § 4B1.1. ECF 604 at 10. This is because the underlying conspiracy offense is no longer a qualifying offense, in light of United States v. Norman, 935 F.3d 232 (4th Cir. 2019). Further, Roberts claims that, under U.S.S.G. § 4B1.2(b), his conviction for felonious possession of CDS would not qualify as a career offender predicate. Id.

The government agrees that Roberts would not qualify as a career offender under today's sentencing framework. ECF 616 at 6.

Roberts also contends that his base offense level would be 34 under § 2D1.1(c)(3), not 36. ECF 604 at 10. And, after deductions for acceptance of responsibility, he claims he would have a final offense level of 31. Id. The government does not comment on Roberts's claim that his final offense level would be 31 if he were not a career offender. But, it seems to concede the point. See ECF 616 at 29.

In reviewing § 2D1.1(c)(3), Roberts is correct in asserting that his non-career offender base offense level would have been 34. When converting the controlled substances for which he was convicted into an equivalent amount of marijuana, the result is 11,000 kilograms. This yields a base offense level of 34 under § 2D1.1(c)(3).

After deductions for acceptance of responsibility, the defendant would have had a final offense level of 31 and a criminal history category of V. The corresponding Guidelines call for a sentence ranging from 169 to 210 months of imprisonment. See U.S.S.G. §§ 2D1.1, 2D1.1(c)(3) 3E1.1(a), 3E1.1(b). This is in contrast to the career offender Guidelines range...