United States v. Smith

UNITED STATES, v. ROBERT SMITH, Defendant/Petitioner,

Criminal Action No. 88-519

United States District Court, E.D. Pennsylvania

January 10, 2022

MEMORANDUM

C DARNELL JONES, II J

I. Introduction

Presently before the Court is Defendant Robert Smith (hereinafter “Defendant”)'s Motion for Reduced Sentence pursuant to Section 404 of the First Step Act of 2018 (hereinafter “Motion”). ECF No. 181. Therein, he asks this Court to reduce his sentence for various convictions from 1989. He posits that the First Step Act, in conjunction with the sentencing package doctrine, gives this Court authority to resentence him on all counts. For the reasons stated herein, Defendant's Motion is denied.

II. Factual Background

Defendant was convicted on August 3, 1989, for various charges related to his involvement in an organization which sold crack cocaine and marijuana in Philadelphia during the mid-to-late 1980s.^[1] He was sentenced on October 6, 1989, receiving a life sentence for Count 3-21 U.S.C. § 848^[2]: continuing criminal enterprise (hereinafter “CCE”)-and Count 71-18 U.S.C. § 1952(B)^[3]: violent crime in aid of racketeering (hereinafter “VICAR”).^[4] The life sentence for CCE related to Defendant's leadership role in the drug organization, and the life sentence for VICAR was for the murder of Joel Hinnant (hereinafter “VICAR murder”). Defendant was also convicted, sentenced, and is still serving 40 years for violating 21 U.S.C. § 846: conspiracy to distribute cocaine base. In the thirty-two (32) years since Defendant's sentencing, he has completed numerous certifications and classes while incarcerated.^[5]

Relevant to this case is this Court's prior ruling in Defendant's brother's case-Everton Smith.^[6] Everton Smith was involved in the same drug organization as his brother. He was found guilty on many of the same counts and was also given a life sentence for CCE.^[7] While Everton Smith was also convicted of two (2) counts of VICAR, these were the result of assaulting a codefendant with a stun-gun.^[8] Unlike his brother, Everton Smith was not convicted of VICAR murder. Everton Smith also completed various certifications and courses during his incarceration.^[9]

Everton Smith filed a Motion under the First Step Act on September 10, 2020, to reduce his sentence to time served. See Motion to Reduce Sentence Under Section 404 of the First Step Act by Everton Smith, United States v. Smith, No. 88-CR-00519 (Sep. 10, 2020), ECF No. 174. This Court granted said Motion on November 18, 2020. See Order Granting Defendant's Motion for Reduction of Sentence Pursuant to Section 404, United States v. Smith, No. 88-CR-00519 (November 18, 2020), ECF No. 178.

III. Fair Sentencing Act and the First Step Act Background

The Anti-Drug Abuse Act was signed into law on October 27, 1986. The Act set forth mandatory minimum penalties of five (5) and ten (10) years for drug offenders, depending primarily on the type and quantity of drugs involved in their offenses. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 401, 100 Stat. 3207, 2-3; Dorsey v. United States, 567 U.S. 260, 266 (2012). For powder cocaine offenses, the mandatory minimums of five (5) and ten (10) years were triggered if the offense involved 500 or 5, 000 grams, respectively. Anti-Drug Abuse Act of 1986, § 401. In contrast, for crack cocaine offenses, mandatory minimums were triggered at 5 and 50 grams, respectively, a 100-to-1 crack-to-powder ratio. Id.; Dorsey 567 U.S. at 266.

Over the next two (2) decades, the disparity between them was sharply criticized, at least in part, because sentences embodying the 100-to-1 ratio reflected unjustified race-based differences. Dorsey, 567 U.S. at 268. In 2010, Congress enacted the Fair Sentencing Act, which lessened the disparity between crack cocaine and powder cocaine by making the five (5) and ten (10) year mandatory minimums for crack cocaine applicable at 28 and 280 grams, respectively. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372. The powder cocaine weights and penalties remained the same. Compare 21 U.S.C. §§ 841(b)(1)(A)(ii), (B)(ii) (2008); with Fair Sentencing Act § 2(a). This reduced the disparity from 100-to-1 to 18-to-1, but the change was not retroactive and only applied to offenses that occurred after August 3, 2010. Fair Sentencing Act § 2(a); United States v. Willis, 417 F.Supp.3d 569, 573 (E.D. Pa. 2019).

In 2018, Congress passed the First Step Act, which allowed courts to retroactively apply the Fair Sentencing Acts's crack-cocaine reductions to those sentenced before August 3, 2010. First Step Act of 2018, 115 Pub. L. No. 391, § 404, 132 Stat. 5194, 5222. Section 404 of the First Step Act reads as follows:

(a) Definition of covered offense. In this section, the term “covered offense” means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111220; 124 Stat. 2372), that was committed before August 3, 2010.

(b) Defendants previously sentenced. A court that imposed a sentence for a covered offense may, on motion of the Defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.

(c) Limitations. No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

§ 404. The initial inquiry is whether the movant's offense occurred before August 3, 2010. § 404(a). If so, Courts must then determine whether the sentence has already been imposed or reduced pursuant to the Fair Sentencing Act, or if a previous motion for reduction under the First Step act was denied. § 404(c). Lastly, Courts must consider whether the offense is a “covered offense.” § 404(a). A “covered offense” is determined by the statute of conviction. United States v. Jackson, 964 F.3d 197, 202 (3d Cir. 2020) (“Congress intended eligibility to turn on a defendant's statute of conviction rather than his conduct.”). If all of these conditions are met, courts may resentence a defendant. § 404(b).

III. Discussion

Here, Defendant was sentenced on October 6, 1989 and has not previously been resentenced or filed a motion for resentencing under the First Step Act. Defendant is still serving his two (2) life sentences for CCE and VICAR murder, and forty (40) years for 21 U.S.C. § 846: conspiracy to distribute cocaine base. Defendant argues that 21 U.S.C. § 848, in toto, is a covered offense under the First Step Act, and because of this, the sentencing package doctrine allows resentencing on all counts. Mot. 4-5.

In response, the Government argues that Defendant's CCE conviction is only a covered offense if he was convicted under subsection (b)-they maintain that subsection (a) of is not a covered offense. Gov't Resp., ECF No. 186, 19-23. Even if Defendant's CCE conviction is a covered offense, however, the Government claims that because VICAR murder is not a covered offense, the sentencing package doctrine does not apply, and this Court does not have authority to resentence the Defendant's VICAR murder conviction. Id. at 11-19. Thus, the Government asks this Court to use the concurrent sentence doctrine “to avoid resolution of legal issues affecting less than all counts in an indictment if at least one will survive and sentences on all counts are concurrent.” Id. (quoting United States v. McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997)). Because of this, the Court will first address the issue of whether Defendant can be resentenced for his VICAR murder conviction.

A. 18 U.S.C. § 1952(B): VICAR Murder

Defendant was sentenced to life imprisonment under 18 U.S.C. § 1952(B) for VICAR murder. Neither § 1952(B) nor its later renumeration as 18 U.S.C. § 1959 have ever had penalties prescribed by 21 U.S.C. § 841, or any section that was amended by the Fair Sentencing Act. Accordingly, since the statute self-prescribes its penalties and has not been affected by the Fair Sentencing Act, Defendant's conviction for VICAR murder is not a covered offense and is not entitled to resentencing under the First Step Act.

Because VICAR murder is not a covered offense, Defendant asserts that this Court can use the sentencing package doctrine to resentence him on all counts. Mot. 5. Defendant claims that numerous other courts have applied the sentencing package doctrine in this context and string cites several cases to support that assertion. Id. For purposes of this discussion, it will be assumed, arguendo, that Defendant's other life sentence under 21 U.S.C. § 848 is a covered offense.

The sentencing package doctrine states:

[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When a conviction on one or more of the component counts is vacated common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand . . . if that appears necessary in order to ensure that the

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