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United States v. Berry

United States District Court, W.D. Michigan, Southern Division

June 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFF EUGENE BERRY, Defendant.

          OPINION REGARDING DEFENDANT BERRY'S FIRST STEP ACT MOTION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Defendant Berry pleaded guilty to a Section 841(b)(1)(A) crack cocaine offense and a Section 924(c) firearm offense in March 2009. The crack cocaine offense exposed Defendant Berry to a mandatory sentence of ten years in prison. The firearm charge required a mandatory minimum five-year consecutive sentence. So, Defendant Berry's mandatory minimum sentence was fifteen years. The Court imposed that mandatory minimum term on June 15, 2009. Defendant Berry was twenty-nine years old at the time.

         The matter before the Court is Defendant Berry's motion for modification or reduction in sentence under the newly enacted First Step Act, which provides for the retroactive application of certain sentencing reforms contained in the 2010 Fair Sentencing Act. (ECF No. 82). The Court appointed counsel to assist Defendant Berry with his First Step motion. Both sides have filed briefs. The government responds that the Court has discretion to reduce Defendant Berry's sentence, but only to the extent of the new penalty provisions in 28 U.S.C. § 841, and the current version of Section 2D1.1 of the guidelines. (ECF No. 87). The defense argues the First Step Act goes further and opens the door to a plenary resentencing with the new mandatory minimum under Section 841 being the only limit. (ECF No. 88).

         The Court finds that Defendant Berry is eligible for relief under the First Step Act, but that he is not entitled to a plenary resentencing. Nor does the Court see any other need for a hearing on the fully briefed issues. The Court can and does exercise its discretion under the First Step Act to relieve Defendant Berry of the mandatory-minimum sentence originally applicable to his crack cocaine offense, and to reduce Defendant Berry's sentence as provided in this Opinion and corresponding Order.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Defendant Berry's Conviction and Sentence

         In October 2008, a confidential informant tipped off the Grand Rapids Police Department Vice Unit that cocaine could be purchased at the residence of Yolanda Barton. Yolanda Barton was Defendant Berry's girlfriend, and he lived with her at that residence. The police subsequently executed a search warrant and discovered cash, counterfeit currency, a loaded Springfield Armory .45 caliber semiautomatic pistol, ammunition, drugs, and drug paraphernalia. Laboratory testing on the drugs determined 118.47 grams of cocaine base, or crack cocaine, had been seized from the residence. The .45 caliber pistol was found to have been stolen. Defendant was charged in a three-count indictment on January 14, 2009. (ECF No. 1).[1]

         On March 5, 2009, Defendant pleaded guilty to possession with intent to distribute fifty grams or more of crack cocaine (Count 1) and to possession of a firearm in furtherance of a drug trafficking crime (Count 2). (ECF No. 31). During the plea colloquy he admitted he had placed four ounces of crack cocaine in the house he shared with Ms. Barton. (ECF No. 46, PageID.126). Under the terms of a written plea agreement, the government agreed to dismiss the third count (felon in possession) and further agreed not to file a Section 851 notice that would have subjected Defendant Berry to mandatory life imprisonment. (Plea Agreement ¶ 6(A) & (B), ECF No. 26, PageID.50).

         The Final Presentence Report (PSR) prepared by the probation officer found that Defendant Berry was responsible for the 118.47 grams of crack cocaine seized from the residence, and that he was also responsible for the stolen pistol. (PSR ¶ 26). The quantity of narcotics triggered an initial base offense level of 30 for Count 1.[2] After adjusting downward for acceptance of responsibility, the total offense level was 27. (PSR ¶ 45). The officer then scored Defendant's criminal history at seven points, resulting in a criminal history category of IV. (PSR ¶ 57). The guideline range for a total offense level of 27 and criminal history category of IV was 100 to 125 months, before consideration of any mandatory statutory terms. (PSR ¶ 169).

         The statutory mandatory minimum ultimately controlled Defendant Berry's sentence. Under the version of Section 841 in effect during Defendant Berry's sentencing, a violation of 841(a) involving 50 grams or more of crack cocaine was subject to a mandatory ten-year minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(iii) (2009). Because over 118 grams of crack cocaine was attributable to Defendant Berry, his conviction for Count 1 required a mandatory minimum ten-year sentence. His guideline range for Count 1 thus became 120 to 125 months under U.S.S.G. § 5G1.1(c)(2). (PSR ¶ 91).

         On June 15, 2009, the Court sentenced Defendant Berry to a total term of imprisonment of 180 months consisting of the mandatory minimum 120 months on Count 1 and the mandatory minimum 60-month consecutive sentence on Count 2. (ECF No. 39). During the hearing, the Court indicated the sentence was not the one the Court would have imposed absent the mandatory minimum penalties. Indeed, the Court commented that the total term was “more than enough to achieve the purposes of sentencing” and in fact was “arguably too much.” (ECF No. 47, PageID.143). Defendant appealed, and in an Anders brief, defense counsel raised the issues of whether Defendant's plea was properly made and whether the sentence was properly imposed. The Sixth Circuit Court of Appeals affirmed the Court's Judgment. United States v. Berry, No. 09-1803 (6th Cir. July 28, 2011).

         2. The Fair Sentencing Act of 2010

         A little over a year after Defendant Berry's conviction and sentence were entered, Congress passed the Fair Sentencing Act of 2010, Pub L. No. 111-220, 124 Stat. 2372 (2010). The Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine offenses by increasing the amount of crack cocaine needed to trigger the mandatory minimums established in the Anti-Drug Abuse Act of 1986. United States v. Blewett, 746 F.3d 647, 649 (6th Cir. 2013) (en banc); see also Dorsey v. United States, 567 U.S. 260, 263-64 (2012). More specifically, the Fair Sentencing Act increased the threshold quantity in 21 U.S.C. § 851(b)(1)(A)(iii) from 50 grams or more of crack cocaine to 280 grams or more. Fair Sentencing Act at § 2(a)(1). The Fair Sentencing Act also increased the threshold quantity in 21 U.S.C. § 841(b)(1)(B)(iii) from 5 grams or more of crack cocaine to 28 grams or more. Fair ...


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