United States v. Foreman

          OPINION REGARDING DEFENDANT FOREMAN'S FIRST STEP ACT MOTION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Defendant Foreman pleaded guilty to a Section 841(b)(1)(A) crack cocaine offense; a Section 841(b)(1)(C) powder cocaine offense; and a Section 924(c) firearm offense in May 2006. The crack cocaine offense exposed Defendant to a mandatory minimum sentence of ten years in prison and a maximum of life. He was sentenced as a career offender in September 2006 to a total term of 300 months imprisonment. Defendant Foreman was thirty-one years old at the time.

         The matter before the Court is Defendant Foreman'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. 127). The Court appointed counsel to assist Defendant Foreman with his First Step motion. Both sides have filed briefs. The government responds that the Court has discretion to reduce Defendant Foreman's sentence, but only to the extent of the new penalty provisions in 28 U.S.C. § 841 and the applicable career offender provisions of the sentencing guidelines. (ECF No. 129). 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. 134-1).

         The Court finds that Defendant Foreman 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 Foreman of the mandatory-minimum sentence originally applicable to his crack cocaine offense, and to reduce Defendant Foreman's sentence as provided in this Opinion and corresponding Order.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Defendant Foreman's Conviction and Sentence

         On January 11, 2006, officers with the Lansing Police Department received information that Defendant Foreman, a known fugitive, was living in a certain residence located within the city. On that date, officers established surveillance at the residence and observed Defendant Foreman leave the home and get into a vehicle. Defendant Foreman was stopped and arrested. Acting under a search incident to the arrest, officers found three bags of powder cocaine weighing a total of 60 grams and one bag of crack cocaine weighing 10 grams in Defendant's pants pocket. Officers then obtained a search warrant for the residence. Inside the residence the officers found $7, 385.00 in cash, items associated with drug trafficking, five bags of crack cocaine weighing approximately 125 grams in total, five bags of powder cocaine weighing approximately 190 grams in total, and three firearms, each with a round of ammunition in the chamber. Defendant was charged in a three-count indictment on February 8, 2006. (ECF No. 1).

         On May 16, 2006, Defendant pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine (Count 1); possession with intent to distribute powder cocaine (Count 2); and to possession of firearms in furtherance of a drug trafficking crime (Count 3) under the terms of a written plea agreement. (ECF Nos. 25 & 27). During the plea colloquy Defendant Foreman admitted, under oath, that he was responsible for approximately 135 grams of crack, approximately 250 grams of powder cocaine, and three firearms. (ECF No. 29, PageID.80-81).

         The Final Presentence Report (PSR) prepared by the probation officer paralleled Defendant Foreman's admissions with respect to drug quantity and found that Defendant Foreman was responsible for 135 grams of crack cocaine and 250 grams of powder cocaine. At the time, this was equivalent to 2, 750 kilograms of marijuana. (PSR ¶ 21). The quantity triggered an initial base offense level of 32 for Counts 1 and 2.^[1] After adjusting downward for acceptance of responsibility, the total drug offense level was 29. (PSR ¶¶ 27-35).

         The PSR determined, however, that Defendant Foreman qualified as a career offender because he committed the offense of conviction after sustaining two prior felony convictions for a controlled substance offense and a crime of violence. Since the statutory maximum penalty for the offense of conviction was life under Section 841(b)(1)(A)(iii), the guidelines called for a career offender offense level of 34, after adjusting for acceptance of responsibility. See U.S.S.G. § 4B1.1(b)(A). Level 34 being higher than the offense level calculated under Section 2D1.1, it took precedence and became Defendant Foreman's total offense level. (PSR ¶¶ 36-38).

         The officer then scored Defendant's criminal history at eight points, which would have resulted in a criminal history category of IV. (PSR ¶ 46). Because of his career offender status, however, Defendant Foreman's criminal history category was required to be VI. (PSR ¶ 47). The guideline range for a total offense level of 34 and criminal history category of VI was 262 to 327 months. (PSR ¶ 76).^[2] Adding in the conviction for Count 3 resulted in a guideline range of 322 to 387 months under U.S.S.G. § 4B1.1(c)(2)(A). (PSR ¶ 76). At the September 7, 2006 sentencing the Court varied downward from the guideline range and imposed a sentence of 300 months imprisonment-consisting of 240 months imprisonment with respect to each of Counts 1 and 2, to be served concurrently, and 60 months with respect to Count 3, to run consecutive to Counts 1 and 2.^[3] (ECF No. 32). Defendant was also sentenced to 5 years of supervised release. During the hearing, the Court acknowledged the sentence came in somewhat under the guidelines but concluded that it reflected the total mix of the Section 3553(a) factors together with Defendant Foreman's career offender status. (ECF No. 40, PageID.154).

         2. Defendant Foreman's Appeal and Challenges to his Career Offender Status

         Thereafter, Defendant Foreman filed a notice of appeal. The government moved to dismiss the appeal based on a waiver of the right to appeal contained in Defendant Foreman's plea agreement. On September 6, 2007 the Sixth Circuit Court of Appeal granted the government's motion and dismissed the appeal. United States v. Foreman, No. 06-2192 (6th Cir. Sept. 6, 2007).

         Collateral attack and further appeals followed. Indeed, Defendant has filed numerous challenges to his conviction and sentence both in this criminal case and in other civil habeas proceedings in this district and in the Eastern District of Michigan.^[4] The majority of Defendant's challenges have focused on his career offender status. By way of background, in 2003 Defendant Foreman pleaded guilty in State court to a charge of manufacturing cocaine, but he never appeared for sentencing. After he was convicted in this case, the probation officer found that the 2003 conviction in State court was a predicate offense for purposes of determining Defendant's career offender status. But when Defendant Foreman was subsequently sentenced in this case to 300 months imprisonment, the State decided to dismiss the charges. Based on the dismissal, Defendant Foreman has repeatedly argued he was actually innocent of being a career offender. Every time Defendant has advanced this argument, however, he has been unsuccessful. In its most recent decision on the matter, the Sixth Circuit observed “[t]hat the State chose to dismiss Foreman's prior conviction after he absconded before sentencing does not erase that prior conviction for purposes of the Sentencing Guidelines.” Foreman v. United States, No. 18-1274 (6th Cir. Nov. 13, 2018).

         3. Defendant Foreman's Motion for a Sentencing Reduction Under the Guideline Amendments.

         On March 12, 2008, Defendant Foreman sought to reduce his sentence under 18 U.S.C. § 3582(c)(2) and Guideline Amendments 706 and 711. (ECF No. 45). A Sentence Modification Report was ordered, and the resulting report determined Defendant was ineligible for any relief because his career offender status, not the drug quantity, drove his guideline offense level. The Court denied the motion on March 20, 2014, noting that Defendant's repeated challenge to his career-offender designation was outside the scope of Section 3582(c)(2) relief. (ECF No. 65). The Sixth Circuit Court of Appeals affirmed. United States v. Foreman, No. 14-1394/14-1564 (6th Cir. Feb. 17, 2015).

         4. The Fair ...