United States v. Wilkerson

495 F.Supp.3d 1232

UNITED STATES of America, Plaintiff,

v.Daryl WILKERSON, Defendant.

No. CR 00-0557 JB

United States District Court, D. New Mexico.

Filed May 1, 2020

John C. Anderson, United States Attorney, Terri Abernathy, James Braun, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Meghan D. McLoughlin, Assistant Federal Public Defender, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Motion to Reduce Sentence Pursuant to Section 404 of the First Step Act, filed January 30, 2019 (Doc. 595)("Motion"). The Court held a hearing on March 31, 2020. See Clerk's Minutes at 1, filed March 31, 2020 (Doc. 613). The primary issues are: (i) whether, pursuant to section 404 of the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ("First Step Act"), Defendant Daryl Wilkerson is eligible for a sentence reduction; and (ii) whether, considering the 18 U.S.C. § 3553(a) factors, the Court should reduce D. Wilkerson's term of imprisonment from 360 months to time served -- roughly 240 months -- resulting in his immediate release. Specifically, the issue is whether D. Wilkerson's eligibility for First Step Act relief depends on the statutory offense that a jury convicted D. Wilkerson of violating, or whether such relief depends on the actual amount of cocaine base for which the sentencing judge concluded D. Wilkerson was responsible. D. Wilkerson notes that a jury convicted him of an offense involving five grams or more of cocaine base, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Apprendi"), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ("Alleyne"), prohibit the Court's reliance, in determining D. Wilkerson's eligibility for First Step Act relief, on the actual amount of drugs for which D. Wilkerson was responsible. Accordingly, D. Wilkerson asserts that he is eligible for First Step Act Relief, because the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 ("Fair Sentencing Act"), reduced the statutory mandatory minimum sentence for the offense of which he was convicted. The United States, however, asserts that Apprendi and Alleyne are not retroactively applicable, and so D. Wilkerson is ineligible for relief, because his actual offense conduct involved 44.57 grams of cocaine base, and, were the United States to charge D. Wilkerson under the Fair Sentencing Act, it would charge -- and convict him -- of violating an offense for which the Fair Sentencing Act does not reduce the statutory penalty. The Court concludes that, under the First Step Act's plain language, D. Wilkerson's eligibility depends on the amount of crack that the statutory offense provides rather than on the amount that the sentencing judge concluded he possessed. Accordingly, the Court concludes that: (i) D. Wilkerson is eligible for a sentence reduction pursuant to the First Step Act; (ii) D. Wilkerson's resulting United States Guidelines Manual ("U.S.S.G." or "Guidelines") range is 262-327 months; and (iii) considering the § 3553(a) factors, the Court will vary downwards D. Wilkerson's sentence by one level, resulting in a sentence of time served.

FACTUAL BACKGROUND

The Court takes the facts from the presentence report and the parties’ briefing. D. Wilkerson was born on October 7, 1961, to Carolyn Wilkerson in Hobbs, New Mexico. See Presentence Report ¶ 70, at 23, prepared January 31, 2001, filed April 28, 2020 (Doc. 616)("PSR").¹ D. Wilkerson is the eldest of eight children. See PSR ¶ 70, at 23. D. Wilkerson lived most of his life in Hobbs, save for brief stints in Oklahoma City, Oklahoma, and Odessa, Texas. See PSR ¶ 70, at 23. D. Wilkerson married Mona Mathews in 1982; together they had three children. See PSR ¶ 71, at 23. D. Wilkerson killed Mathews on May 17, 1990, "by inflicting blows with a blunt object." PSR ¶ 60, at 20. For the two years preceding D. Wilkerson's arrest in this matter, he lived with Yolanda Williams, with whom D. Wilkerson had a child. See PSR ¶ 73, at 23.

Regarding his education and employment history, the PSR reports that D. Wilkerson graduated from Hobbs High School in Hobbs, New Mexico, in 1980. See PSR ¶ 78, at 24. D. Wilkerson attended business classes at New Mexico Junior College in Hobbs, New Mexico, in 1986 and 1987. See PSR ¶ 78, at 24. D. Wilkerson has worked several odd jobs, including as a stonemason and doing "off and on" work at his mother's clothing store in Hobbs, New Mexico. PSR ¶ 79, at 24. D. Wilkerson also worked at various times as a handyman, roofer, and construction worker. See PSR ¶ 80, at 24-25.

D. Wilkerson had some arrests that did not factor into his criminal history category calculation. See PSR ¶¶ 65-68, at 22. These include arrests for harboring or aiding a felon, possession of stolen property, trafficking a controlled substance, and driving while under the influence. See PSR ¶¶ 65-68, at 22. D. Wilkerson had no pending charges at the time of his arrest in this matter. See PSR ¶ 69, at 22. Three offenses factored into Wilkerson's criminal history category calculation. See PSR ¶ 64, at 21. First, a jury found Wilkerson guilty of trafficking in a controlled substance in 1988, when D. Wilkerson was twenty-seven years old. See PSR ¶ 59, at 20. Second, D. Wilkerson pled guilty in 1990, when he was twenty-eight years old, to voluntary manslaughter and tampering with evidence for his killing of Mathews. See PSR ¶ 60, at 20. Third, D. Wilkerson pled guilty to conspiring to transport stolen motor vehicles in 1994, when Wilkerson was thirty-two years old. See PSR ¶ 61, at 21.

The PSR provides the following description of D. Wilkerson's offense and the enterprise of which he was a member:

11. ... Lisa Meridyth and her co-defendants were involved in a conspiracy to distribute cocaine and cocaine base in the Hobbs, New Mexico, and Midland/Odessa, Texas, areas. Joseph Meridyth, a/k/a Jojo; James Meridyth, a/k/a Jamie Meridyth; and Ed Oliver were heavily in the distribution of cocaine base in Odessa, Texas, and Hobbs, New Mexico. Ronnie Meridyth and Lisa Meridyth were identified as lower level players in the drug distribution ring.

12. On June 30, 1998, agents from the Lea County Drug Task Force were contacted by a confidential informant (CI) with information on persons dealing crack cocaine in the Hobbs, New Mexico, area. The CI met with agents from the Lea County Drug Task Force at a designated area where the CI was searched and found to have no money or contraband on his person. The CI was provided with a $50 bill from confidential funds. The CI was then driven to 409 E. Castle in Hobbs, New Mexico. The CI was observed by the agents until they met with a black male at the front door of 409 E. Castle. The two then went inside the residence and were out of sight for approximately fifteen minutes. The CI was then observed walking back to the agent's location where they drove to a predesignated meeting place. At the meeting place, the CI turned over the $50 bill that had initially been given to him. The CI advised that the black male, later identified as Daryl Wilkerson would not sell crack cocaine from his house as he thought he was being watched by the police. The CI was then again searched and was found not to be in possession of contraband or money. The CI further advised that Mr. Wilkerson would not sell less than $100 worth of crack cocaine.

13. The CI advised that he told Mr. Wilkerson they could possibly obtain $200 or more from a friend. Mr. Wilkerson stated he could supply any amount of crack cocaine as he currently had access to a kilogram of track (cocaine base). Mr. Wilkerson then told the CI that he would meet him at the Allsup's Store located at Snyder and Marland in about an hour with $100 worth of crack cocaine. Mr. Wilkerson further stated that he would have another $100 worth of crack in his pocket if the CI was able to obtain more money. Mr. Wilkerson was to be driving his 1977 white Cadillac that was present during the time the CI was talking to Mr. Wilkerson, but was now gone. The agents then initiated a surveillance in the area of Snyder and Marland. Agents then observed a white Cadillac at the Allsup's located and Snyder and Marland. The Cadillac left the Allsup's east on Snyder.

14. One of the agents observed that the Cadillac did not have a license plate. The agent then initiated a traffic stop. The agent observed the driver appeared to be hiding something. Mr. Wilkerson was advised of his Miranda [v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964) ], rights, which he stated he understood and agreed to talk with the agents. The agent explained that he observed Mr. Wilkerson making movements as if he was hiding something. The agent asked Mr. Wilkerson if he had any cocaine or weapons on his person, to which Mr. Wilkerson stated that he did not. The agent then requested permission or consent to search and Mr. Wilkerson stated, "Yes, you can search." Agents located a bag between the seat of the Cadillac which contained suspected crack cocaine. A field test was conducted on the substance, which returned positive for the presence of cocaine. The bag was later weighed and revealed a gross weight of approximately seven grams: Mr. Wilkerson refused to inform the agents as to who he purchased the crack cocaine from; however, he did not deny ownership of the crack found in his Cadillac.

15. During the month of December 1999 a confidential informant was providing information regarding the criminal operations of the Meridyth family. On December 8, 1998, the informant was approached by Daryl Wilkerson, who is a major player in the organization. Mr. Wilkerson told the informant that he could supply him/her with quantities of crack cocaine.

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