United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANT SMITH'S FIRST STEP
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Smith pleaded guilty to a Section 841(b)(1)(B) crack cocaine
offense in December 2007. The conviction exposed Defendant to
a mandatory minimum sentence of five years and a maximum of
forty years in prison. She was sentenced as a career offender
in April 2008 to a total term of 204 months imprisonment.
Defendant Smith was thirty-six years old at the time.
matter before the Court is Defendant Smith'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. 67). The Court appointed
counsel to assist Defendant Smith with her First Step motion.
Both sides have filed briefs. The government responds that
Defendant is not eligible for consideration of a
discretionary reduction since the same statutory penalties
apply to her even accounting for the Fair Sentencing
Act's reforms. (ECF No. 69). The defense disagrees and
contends that the statutory penalties applicable to Defendant
Smith have been changed. It argues for a plenary resentencing
with what it says is the new mandatory minimum under Section
841(b)(1)(C) being the only limit. (ECF No. 70).
Court finds that Defendant Smith is eligible for relief under
the First Step Act, but that she 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 reduce
Defendant Smith's sentence as provided in this Opinion
and corresponding Order.
AND PROCEDURAL BACKGROUND
Defendant Smith's Charge & Plea
11, 2007, an undercover Kalamazoo Valley Enforcement Team
(KVET) officer spoke with Mr. Blair Thompson about purchasing
$2, 000 worth of crack cocaine. A few days later, on May 17,
2007, Mr. Thompson told the officer that he had a connection
“Michelle” who had the crack cocaine available.
Mr. Thompson agreed to meet the undercover officer at the Red
Roof Inn in Kalamazoo, Michigan to complete the purchase.
that day, the officer waited in a room at the Red Roof Inn,
which was wired with police surveillance equipment. Mr.
Thompson arrived and told the officer that there were two
bags of crack cocaine, one weighing 28 grams and the other
weighing 20 grams. The officer demanded to inspect the crack
cocaine before making payment, and Defendant Smith and Ms.
Shuquanta Buckley came into the room. Ms. Buckley was holding
a brown paper bag and handed it to Mr. Thompson. Thereafter
police arrested all three individuals. 47.96 grams of crack
cocaine were found in the bag. Officers also found marijuana
and Vicodin tablets in Ms. Smith's purse.
September 5, 2007, Defendant Smith was charged with
conspiracy to distribute five grams or more of cocaine base
(crack cocaine) in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B)(iii). (ECF No. 1). On December
12, 2007, Defendant pleaded guilty to the charge. While there
was no written plea agreement on file, the parties agreed
during the plea hearing that 47.96 grams of crack cocaine
were involved in the offense. The government also agreed not
to file a notice informing the sentencing court of
Defendant's prior conviction for a felony drug
offense. During the plea colloquy Defendant Smith
admitted, under oath, that on May 17, 2007, she had delivered
approximately 48 grams of crack cocaine. (ECF No. 31,
PSR & Sentencing
Final Presentence Report (PSR) prepared by the probation
officer found that Defendant Smith was responsible for
147.96 grams of crack cocaine and 50 grams of
marijuana. At the time this was equivalent to 2, 073
kilograms of marijuana. (PSR ¶¶ 16-18). The
quantity of narcotics triggered an initial base offense level
of 32. After adjusting downward for acceptance of
responsibility, the total drug offense level was 29. (PSR
determined, however, that Defendant Smith qualified as a
career offender because she committed the offense of
conviction after sustaining two prior felony convictions for
controlled substance offenses. (PSR ¶ 49). Since the
statutory maximum penalty for the offense of conviction was
40 years imprisonment under Section 841(b)(1)(B)(iii), the
guidelines called for a career offender offense level of 31,
after adjusting for acceptance of responsibility.
See U.S.S.G. § 4B1.1(b)(B) (2008). Level 31
being higher than the offense level calculated under Section
2D1.1, the career offender offense level took precedence and
became Defendant Smith's total offense level. (PSR ¶
officer then scored Defendant's criminal history at
seventeen points, resulting in a criminal history category of
(PSR ¶ 67). The guideline range for a total offense
level of 31 and criminal history category of VI was 188 to
235 months on the chart. (PSR ¶ 114). At the April 10,
2008 sentencing the court imposed a within guidelines
sentence of 204 months imprisonment, followed by a 5 year
term of supervised release. The sentencing court remarked
that Defendant had committed “a serious offense”
that required “just punishment, taking into
consideration” the Section 3553(a) factors. (ECF No.
32, PageID.96). Judgment entered on April 11, 2008. (ECF No.
Post Sentencing Matters
and collateral attack followed. On October 29, 2009, the
Sixth Circuit Court of Appeals affirmed the sentencing
court's judgment and rejected Defendant's assertion
that her sentence was both procedurally and substantively
unreasonable. United States v. Smith, No. 08-1494
(6th Cir. Oct. 29, 2009). A Section 2255 motion challenging
her sentence was denied as untimely. Smith v. United
States, No. 1:11-cv-1055 (W.D. Mich. Dec. 8, 2011). The
Sixth Circuit ...