United States v. Stone

UNITED STATES OF AMERICA, v. MACK STONE

No. 3:04-cr-00142

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

June 15, 2021

JUDGE RICHARDSON

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion Under Section 404 of the First Step Act of 2018 for the Imposition of a Reduced Sentence (Doc. No. 117, "Motion") filed by Defendant Mack Stone, wherein he seeks a reduction of his 30-year sentence based on the Court's alleged failure to consider a mandatory factor when granting his previous Section 404 Motion. For the reasons stated herein, the Court concludes that Defendant's Motion is procedurally barred.

Defendant's Motion arises from his conviction on one count, namely conspiracy to distribute 50 grams to more of crack cocaine (cocaine base), in violation of 21 U.S.C. § 846. (Doc. No. 16). On November 5, 2004, Defendant was found guilty by a jury on the single count. (Doc. No. 41). On February 23, 2005, the Court sentenced Defendant to a statutorily mandated life sentence. (Doc. No. 59).

On January 28, 2019, Defendant filed a motion pursuant to Section 404 seeking a sentence reduction (Doc. No. 102). On September 6, 2019, the Court granted Defendant's motion and reduced his sentence from life to 30 years imprisonment. (Doc. No. 116). On January 26, 2021, Defendant filed the instant Motion. (Doc. No. 117).

LEGAL STANDARD

Section 404 of the First Step Act of 2018 gives retroactive effect to segments of the Fair Sentencing Act of 2010, Public Law 111-220, 124 Stat. 2372 ("2010 FSA"), which increased the respective threshold quantities of crack cocaine required to trigger each of the tiered statutory maximum and minimum punishments prescribed by 21 U.S.C. § 841(b)(1).¹ See First Step Act § 404; 2010 FSA § 2.

Section 404 permits courts to grant relief for defendants convicted of a "covered offense," meaning "a violation of a Federal criminal statute, the statutory penalties for which were modified by Section 2 or 3 of the [2010 FSA], that was committed before August 3, 2010[.]" § 404. By its terms, Section 404(b) makes a defendant eligible for relief provided only that the defendant was convicted of a "covered offense." Nothing more is required for the defendant to be eligible for relief. E.g., United States v. Boulding, 379 F. Supp. 3d 646, 651 (W.D. Mich. 2019), aff'd in part, vacated in part, remanded, 960 F.3d 774 (6th Cir. 2020) ("[E]ligibility under the language of the First Step Act turns on a simple, categorical question: namely, whether a defendant's offense of conviction was a crack cocaine offense affected by the Fair Sentencing Act."); United States v. Burke, No. 2:08-CR-63(1), 2019 WL 2863403, at *3 (E.D. Tenn. July 2, 2019) ("[T]he defendant is eligible for relief as to Count One under the First Step Act because he was convicted of a 'covered offense' under Section 404(a)'s definition.").

If the defendant is eligible for relief based on satisfying this single requirement, a court (namely, the one that sentenced him previously) may "impose a reduced sentence as if Sections 2 and 3 of the [2010 FSA] were in effect at the time the covered offense was committed." § 404(b). Importantly, that is the relief (and the only relief) available under the First Step Act: "a reduced sentence ... as if Sections 2 and 3 of the [2010 FSA] were in effect at the time the covered offense was committed." However, "[n]othing in [Section 404] shall be construed to require a court to reduce any sentence pursuant to [that] section." § 404(c). Instead, the decision to impose a reduced sentence for an eligible defendant is within the court's discretion. Boulding, 379 F. Supp. 3d at 654 (First Step Act "leav[es] the Court with discretion to deny relief completely, or to tailor relief to fit the facts of the case."); Burke, 2019 WL 2863403, at *3 ("Because the defendant is eligible for relief, this Court has the discretion under 404(b) to impose a reduced sentence in accordance with the statutory penalties.") (internal quotation marks omitted).

DISCUSSION

Section 404(c) of the First Step Act creates a general prohibition (hereinafter, "relitigation bar") against the filing of successive motions under that section. The relitigation bar is prescribed in the following language:

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.

§404(c). Accordingly, the Court finds that Defendant's Motion is procedurally barred under Section 404(c) because Defendant's sentence was previously reduced, in accordance with theamendments made by sections 2 and 3 of the Fair Sentencing Act, when his first Section 404 motion was granted. (See Doc No. 116).²

Both Defendant and the Government agree that this relitigation bar is waivable.³ (Doc. Nos. 117, 119). However, the Government has declined to waive the bar for the instant Motion. (Doc. No. 119).

Defendant argues that even without the Government's waiver, the Court can still entertain the Motion based on certain language—the reference to a denial of a Section 404 motion "after acomplete review of the motion on the merits—that qualifies to an extent the applicability of the relitigation bar contained within Section 404(c). That is, Defendant argues that his previous Section 404 motion was not given a "complete review... on the merits" inasmuch as the Court allegedly did not consider Defendant's post-sentencing rehabilitation during resentencing. (Doc. No. 117). The Government contends that the "complete review" qualifying the relitigation bar applies only to a previously denied Section 404 motion, whereas Defendant's case involves only a previously granted Section 404 motion. The Government contends additionally that even if Defendant's interpretation of the statute is correct, such that the qualifying language is applicable even to a previously granted motion, it would make no difference here because (according to the Government) the Court did provide him with a "complete review of [his] motion on the merits." (Id.).

Defendant has not provided the Court with any authority in support of his assertion that the "complete review" language applies to previously granted Section 404 motions, and the Court has been unable to find any authority supportive of this position on its own. The Court also notes that Congress rationally could choose to prescribe this qualification for a successive motion if it follows a prior denial of a motion but not if it follows a prior grant of a motion.⁴ Defendant also concedes, and the Government agrees, that the "complete review" language is textually associated only withpreviously denied Section 404 motions. Without binding (or even merely persuasive) legal authority indicating that the "complete review" language extends to previously granted Section 404 motions, the Court cannot find that it applies to anything (such as previously granted Section 404 motions) beyond previously denied Section 404 motions. Accordingly, Defendant cannot avoid the relitigation bar even if it were true that his prior Section 404 motion was not given a "complete review...on the merits." Therefore, the relitigation bar applies, and Defendant's Motion is procedurally barred because his sentence has been "previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010" through his first Section 404 motion. § 404(c).

As the Court has concluded that the "complete review" language does not apply to previously granted motions, it need not consider whether Defendant's previous Section 404 motion received a "complete review . . . on the merits." Nonetheless, the Court will address the issue out of an abundance of caution. "[T]he necessary review [of a Section 404 motion]—at a minimum—includes an accurate calculation of the amended guidelines range at the time of resentencing and thorough renewed consideration of the § 3553(a) factors." United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020). While a district court must consider all of the § 3553(a) factors, it retains discretion over how to weigh them. United States v. Ware, 964 F.3d 482, 487 (6th Cir. 2020).

Defendant asserts that the Court categorically declined to consider his post-sentencing rehabilitation and that as a result, he was not given a "complete review of [his] motion on the merits." Defendant is correct that post-sentencing rehabilitation can be considered when resentencing under Section 404. See Pepper v. United States, 562 U.S. 476, 504) (2011) (holding that courts are allowed to consider post-sentencing behavior when resentencing prisoners); United States v. Martin, 817 F. App'x 180, 183 (6th Cir. 2020) (stating that a district court may considerpost-conviction circumstances when resentencing under Section 404). However, consideration of post-sentencing rehabilitation is not mandatory. See United States v. Allen, 956 F.3d 355, 357 (6th Cir. 2020) ("[C]ourts may consider all relevant factors when determining whether to reduce a defendant's sentence under § 404." (emphasis added)); United States v. Wilson, 827 F. App'x 473, 485 (6th Cir. 2020) (holding that "the district court may—but is not required to—take into consideration [the defendant's] rehabilitation effort" when resentencing under Section 404 (emphasis added)); United States v. Maxwell, 991 F.3d 685, 691 (6th Cir. 2021) (stating that Sixth Circuit precedent permits the consideration of a defendant's conduct in prison when resentencing under Section 404).⁵ Accordingly, the Court could have provided Defendant with a "complete review of [his] motion on the merits" without considering his...