United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANT BERRY'S FIRST STEP
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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).
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.
AND PROCEDURAL BACKGROUND
Defendant Berry's Conviction and Sentence
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
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).
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. 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).
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).
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
The Fair Sentencing Act of 2010
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 ...