United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANT FOREMAN'S FIRST STEP
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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.
AND PROCEDURAL BACKGROUND
Defendant Foreman's Conviction and Sentence
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).
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).
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. After adjusting downward for acceptance of
responsibility, the total drug offense level was 29. (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).
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 ¶
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
(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,
Defendant Foreman's Appeal and Challenges to his Career
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).
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. 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).
Defendant Foreman's Motion for a Sentencing Reduction
Under the Guideline Amendments.
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).
The Fair ...