United States v. Smith

          OPINION REGARDING DEFENDANT SMITH'S FIRST STEP ACT MOTION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Defendant 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.

         The 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).

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Defendant Smith's Charge & Plea

         On May 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.

         Later 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.

         On 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.^[1] 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, PageID.75).

         2. PSR & Sentencing

         The Final Presentence Report (PSR) prepared by the probation officer found that Defendant Smith was responsible for 147.96^[2] 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 ¶ 37).

         The 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 ¶ 42).

         The officer then scored Defendant's criminal history at seventeen points, resulting in a criminal history category of VI.^[3] (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).^[4] 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. 29).

         3. Post Sentencing Matters

         Appeal 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 ...