United States v. Robinson

UNITED STATES OF AMERICA, Plaintiff, v. CLARENCE ROBINSON, Defendant.

8:95CR79

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 5, 2020

MEMORANDUM AND ORDER

In 1996, the Court¹ sentenced defendant Clarence Robinson ("Robinson") to life in prison after a jury found him guilty of conspiring to distribute and possess with intent to distribute a mixture or substance containing cocaine base ("crack cocaine"), in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, as charged in an indictment (Filing No. 1). Robinson now seeks a reduced sentence (Filing No. 247) under the First Step Act of 2018 ("First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194 (2018), which makes retroactively available the more lenient penalties for crack-cocaine offenses under the Fair Sentencing Act of 2010 ("Fair Sentencing Act"), Pub. L. No. 111-220, 124 Stat. 372 (2010). After careful consideration, Robinson's motion is denied.

I. BACKGROUND

A. Factual Background

In 1993 and 1994, several people conspired to transport crack cocaine from California to Nebraska. Robinson, a small player in the large conspiracy, was only personally involved in the final eighty-three-ounce shipment. See United States v. Robinson, 110 F.3d 1320, 1329 (8th Cir. 1997) (Heaney, J., concurring). On June 14, 1995, a grand jury indicted Robinson for his role.

While all his coconspirators pled guilty, Robinson took his case to trial. The day of trial, the government notified (Filing No. 12) the Court under 21 U.S.C. § 851 that Robinson had two prior felony drug convictions. The jury returned a guilty verdict (Filing No. 20) for the conspiracy as charged in the indictment.

Before sentencing Robinson, the Court reviewed his Revised Presentence Investigation Report ("RPSR"), which attributed to Robinson eighty-three ounces (that is, 2.35 kilograms) of crack cocaine. With a total offense level of 38 and criminal history category of IV, the United States Sentencing Guidelines ("guidelines") range was 324 to 405 months. But because the statute mandated life imprisonment based on the drug quantity and enhancement for prior convictions, the guidelines sentence was life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii) (1996) (imposing a mandatory life sentence for offenses involving fifty grams or more of crack cocaine after two or more prior felony drug convictions).

At Robinson's sentencing, the Court adopted the RPSR and its facts, including the drug quantity. Although the Court was "disturbed" by its lack of discretion and believed the sentence was unjust, the Court imposed the mandatory life sentence.

Since his sentencing, Robinson has challenged his conviction many times through direct appeal, collateral attack, and other miscellaneous motions. All those attacks failed. On direct appeal, the Eighth Circuit found, among other things, the Court "did not err in relying on Robinson's prior felony drug convictions to enhance his sentence" and "the evidence presented at trial [was] sufficient to support [the Court's] finding that Robinson was responsible for at least eighty-three ounces of" crack cocaine. Robinson, 110 F.3d at 1328.

B. The Fair Sentencing Act and First Step Act

At the time of Robinson's offense and sentencing, § 841(b)(1) provided for (1) a five-year mandatory-minimum sentence, enhanced to a ten-year mandatory-minimum sentence with one prior felony drug conviction, for offenses involving five grams or more of crack cocaine, and (2) a ten-year mandatory-minimum sentence, enhanced to a mandatory life sentence with two prior felony drug convictions, for offenses involving fifty grams or more of crack cocaine. As noted above, the Court imposed the mandated life sentence on Robinson.

In 2010, Congress enacted the Fair Sentencing Act, reducing the disparity between sentences for crack cocaine and powder cocaine by increasing the quantity of crack cocaine needed to trigger mandatory-minimum sentences. See Dorsey v. United States, 567 U.S. 260, 269 (2012). Specifically, Section 2 "raised the threshold for the 5-year minimum from 5 grams to 28 grams, and raised the threshold for the 10-year minimum from 50 grams to 280 grams." United States v. McDonald, 944 F.3d 769, 771 (8th Cir. 2019). "Section 3 eliminated the 5-year mandatory minimum for simple possession of" crack cocaine. Id.

Under the Fair Sentencing Act, an offense involving 28 but less than 280 grams of crack cocaine could only be enhanced by one prior conviction to a ten-year mandatory-minimum sentence. An offense involving 280 grams or more of crack cocaine with two or more prior felony drug convictions was subject to the mandatory life sentence.

Among his post-conviction motions, Robinson sought relief under the Fair Sentencing Act (Filing No. 197). The Court denied (Filing No. 203) that motion because the Fair Sentencing Act was not retroactive, see Dorsey, 567 U.S. at 273, and the Eighth Circuit affirmed (Filing No. 211). Cue the First Step Act.

Because the Fair Sentencing Act only applied to defendants sentenced after August 3, 2010, see Dorsey, 567 U.S. at 263, in 2018, Congress enacted the First Step Act which, among other things, made retroactive certain provisions of the Fair Sentencing Act.

Relevant in this case, Section 404(b) of the First Step Act authorizes the Court to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed." 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 . . ., that was committed before August 3, 2010." Section 404(c) makes clear "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section."

C. Robinson's Present Motion

On August 19, 2019, Robinson filed his motion under Section 404(b) of the First Step Act. After the government responded (Filing No. 255), the Court implemented (Filing No. 258) General Order No. 2019-01 appointing the Federal Public Defender to represent Robinson. The U.S. Probation Office then filed (Filing No. 259) a 2019 First Step Act Retroactive Sentencing Worksheet ("worksheet") asserting what it believes are Robinson's 2019 retroactive guidelines calculations pursuant to the First Step Act.

In all, the Court has received (1) one brief from the government, (2) two pro se briefs from Robinson (Filing Nos. 256 and 257), (3) the worksheet, (4) and two briefs (Filing Nos. 270 and 272) from Robinson's counsel as well as an index of exhibits (Filing. No. 275), and in that order.

In its brief, the government resists any sentence reduction in this case, arguing Robinson is not (1) eligible for relief under the First Step Act; (2) entitled to a plenary resentencing; or (3) entitled to a reduction because, based on the drug quantity the Court found at sentencing (2.35 kilograms), he faces the same statutory penalty under the Fair Sentencing Act as when he was originally sentenced.²

In his pro se briefs, Robinson contends he is eligible for relief and urges the Court to instead rely on the drug quantity alleged in the indictment and found by the jury (a detectable amount) to determine his statutory range in this Section 404(b) proceeding. In Robinson's view, relying on the judge-found quantity runs contrary to the Supreme Court's decision in Alleyne v. United States that the Sixth Amendment of the United States Constitution requires any fact which increases the statutory minimum to be submitted to a jury and found beyond a reasonable doubt. 570 U.S. 99, 115-16 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.")

In the worksheet, the probation office bases Robinson's 2019 retroactive guidelines range on the 2.35 kilograms of crack cocaine found by the Court at sentencing. The probation office bases Robinson's statutory range, however, on the quantity it believes the jury attributed Robinson, following Chief Judge Gerrard's opinion in United States v. Moore, 412 F. Supp. 3d 1111 (D. Neb. 2019). In that case, Chief Judge Gerrard determined "a judge's sentencing findings, made only by a preponderance of the evidence, cannot be used to establish the statutory range for purposes of the First Step Act." Id. at 1117-18.

With that, the worksheet shows a 2019 retroactive guidelines range of 324 to 405 months (total-offense level 38, criminal history category IV). The worksheet further states, "[t]he jury found Mr. Robinson responsible for 50 grams or more of crack cocaine" which results in a statutory range of 10 years to life imprisonment under the First Step Act when enhanced by one or more (here, two) prior felony drug convictions. See 21 U.S.C. § 841(b)(1)(B)(iii) (2010) (imposing a sentence of ten years to life imprisonment for offenses involving twenty-eight grams or more of crack cocaine with one or more prior felony drug convictions).

The worksheet is factually flawed. The verdict shows the jury found Robinson guilty of conspiracy "as charged in the indictment," which alleges only a "detectableamount" of crack cocaine, not fifty grams or more. Based on that quantity, with Robinson's prior convictions, his statutory range under Section 2 of the Fair Sentencing Act would be not more than twenty-years imprisonment. See 21 U.S.C. § 841(b)(1)(E)(ii) (2010).

Robinson's counsel objects (Filing No. 269) to the worksheet and has submitted a brief in support of sentence reduction. Not noticing the quantity error, Robinson's counsel asserts the worksheet "correctly summarizes that Robinson was found guilty by a jury of conspiracy and responsible for 50 grams of [crack] cocaine" and "that the sentencing judge found Robinson responsible for 2.35 kilograms of crack...