United States v. Thompson

404 F.Supp.3d 1003

UNITED STATES of America

v.Robert Lee THOMPSON, Jr. (01)

CASE NO. 3:07-CR-30034

United States District Court, W.D. Louisiana, Monroe Division.

Signed July 23, 2019

Allison Duncan Bushnell, U.S. Attorneys Office, Shreveport, LA, for United States of America.

RULING

ROBERT G. JAMES, UNITED STATES DISTRICT JUDGE

Before the Court is a Motion for Imposition of a Reduce Sentence Pursuant to Section 404 of the First Step Act, filed by Defendant Robert Lee Thompson, Jr. [Doc. No. 51] The government opposes the motion, arguing Thompson is ineligible for relief. For the reasons set forth below, the Court finds Defendant is eligible for relief under the First Step Act.

I. BACKGROUND

On September 26, 2007, Thompson was charged in an indictment with two counts of possession with intent to distribute cocaine base ("crack cocaine") in violation of 21 U.S.C. §§ 841(a)(1). [Doc. No. 6]. Count 1 charged that on or about June 6, 2007, Thompson "did knowingly and willfully possess with the intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base," and Count 2 charged that on or about August 23, 2007, Thompson "did knowingly and willfully possess with the intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base." Id. at 1-2. The government filed an information of prior conviction against Thompson pursuant to 21 U.S.C. § 851, asserting he was subject to an enhanced penalty under 21 U.S.C. § 841. [Doc. No. 17]. With the § 851 enhancement, under the version of § 841(b)(1)(A) in effect at that time, Thompson's statutory penalty based upon the "50 grams or more" alleged in the indictment was a mandatory minimum term of imprisonment of not less than 20 years (240 months) or more than life. 21 U.S.C. §§ 841(b)(1)(A)(iii) and 851 (2008).

On June 25, 2008, Thompson pleaded guilty pursuant to a written plea agreement to count two of the indictment. [Doc. No. 27]. The factual basis for the guilty plea provided that Thompson was accountable for "4 ½ ounces of crack cocaine" and "989.5 grams of crack cocaine." Id. The PSR attributed 1,195 net grams of cocaine base to Thompson for purposes of the Sentencing Guideline calculations. PSR at ¶ 20. With a total offense level of 31 and his Criminal History Category of II, the guideline imprisonment range was 121 to 151 months. Id. at ¶ 61. However, because the statutory minimum sentence exceeded the guidelines range, the guideline range became 240 months. Id. Thompson was sentenced to 240 months imprisonment on October 6, 2008, which was both the statutory minimum and a guideline sentence. [Doc. No. 34]. Thompson has been in custody since 2007 and has a projected release date of February 12, 2026.

II. APPLICABLE LAW

At the time Thompson was sentenced, distribution of 50 grams or more of cocaine base carried a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment; however, if the offender had a prior felony drug conviction, his mandatory minimum sentence increased to twenty years. 21 U.S.C. § 841(b)(1)(A). If an offense involved more than 5 grams of cocaine base, the offender was subject to a mandatory minimum term of five years imprisonment and a maximum term of forty years; however, if the offender had a prior felony drug conviction, his mandatory minimum sentence increased to ten years, with a maximum sentence of life imprisonment. Id. at § 841(b)(1)(B).

In 2010, after more than two decades of substantial criticism from the Sentencing Commission and others in the law enforcement community that the harsh treatment of crack cocaine offenses was fundamentally unfair when compared to offenses involving powder cocaine, Congress passed the Fair Sentencing Act. Dorsey v. United States , 567 U.S. 260, 268, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Section 2 of the Fair Sentencing Act increased the drug quantities triggering the mandatory minimum for crack offenses "from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum." Id. at 269, 132 S.Ct. 2321. While the Act did not entirely eliminate the disparity between powder and crack cocaine, it did lower the 100–to–1 crack-to-powder ratio to 18–to–1.¹ Id. The Fair Sentencing Act took effect on August 3, 2010 but applied only to sentences imposed thereafter. Id. at 264, 132 S.Ct. 2321.

In 2018, Congress passed the First Step Act, which made the revised crack cocaine minimums established by the Fair Sentencing Act retroactive. The First Step Act provides in relevant part:

(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 ..., 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 ... 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 ... 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.

FIRST STEP ACT OF 2018, PL 115-391, December 21, 2018, 132 Stat 5194. In this matter, the government contends Thompson did not commit a "covered offense" and therefore is ineligible for relief under the First Step Act. [Doc. No. 258].

III. DISCUSSION

A. Eligibility

The government argues that the definition of "covered offense" set forth in the First Step Act "keys eligibility not on the defendant's statute of conviction, but on the specific ‘violation’ that the defendant ‘committed.’ " [Doc. No. 54 at 5-6]. In other words, the government contends it is the offense conduct, and not the statute underlying a defendant's conviction and penalty that determines eligibility under the First Step Act. In this matter, because the court at sentencing adopted the PSR's finding that Thompson's offense conduct involved 1,119.5 grams of cocaine base – an amount far in excess of the 280-gram threshold – it is the government's position that Thompson's violation does not constitute a "covered offense."² The Court disagrees, as it finds the government's construction of the First Step Act's definition of "covered offense" to be problematic in several respects.

Again, Section 404(a) of the First Step Act defines "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 of 2010 ..., that was committed before August 3, 2010." The government first argues that when Congress uses the word "violation," it is referring to specific offense conduct and not a statute of conviction. [Doc. No. 258 at 5-6]. The Court finds nothing in the text of the statute or cases cited by the government persuading it that the government's position is correct.³ The government next asserts, "[b]y referring to a ‘violation’ that was ‘committed’ on a particular date, Section 404(a) sensibly grounds the eligibility inquiry in the actual conduct involved in the defendant's violation, rather than the statute under which the defendant was convicted." Id. at 5. But as one court has noted, the word " ‘committed’ is easily read to refer solely to the timing of the conduct underlying the conviction." United States v. Martin , 2019 WL 2571148, *3 (E.D.N.Y. June 20, 2019). The government additionally argues that the term "statutory" (i.e. , "a violation of a Federal criminal statute, the statutory penalties for which were modified") would be redundant if "statutory" modified "statute" rather than "violation." Id. at 6-7. Again, the Court disagrees. The more natural reading is that "[t]he use of the term ‘statutory’ simply indicates that the penalties modified must be the penalties prescribed by statute, as opposed to a change in the Sentencing Guidelines, for example." Martin at *3 ; see also United States v. Rose , 379 F.Supp.3d 223, 228 (S.D.N.Y. 2019) (engaging in extended textual analysis and determining "statutory" modifies the adjacent noun phrase "Federal criminal statute"). Further, even if the phrase "the statutory penalties for which were modified by section 2 or 3 of the First Step Act" modifies "violation" rather than "Federal criminal statute," whether "violation" refers to the elements of the statute of conviction or the offense conduct would still be ambiguous.⁴ However, the rule of lenity requires that the ambiguity must be resolved in defendant's favor. See e.g. United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 2333, 204 L.Ed.2d 757 (2019) ("ambiguities about the breadth of a criminal statute should be resolved in the defendant's favor").⁵

Most importantly, the government's proposed construction and approach would premise the availability of a sentence reduction on uncharged conduct not considered by the jury, in violation of the constitutional rules set forth in Apprendi and Alleyne .⁶ The government contends the constitutional rules set forth Apprendi and Alleyne do not apply to motions brought under the First Step Act, because those cases are not applied retroactively on collateral review. [Doc. No. 54 at 16-17]. The Court finds the government's position to be overly broad. The government is correct that neither Apprendi nor Alleyne apply retroactively to habeas...