United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANT NORMAN'S FIRST STEP
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
Norman pleaded guilty to a Section 841(b)(1)(A) drug offense
involving at least 50 grams of crack cocaine in February of
2009. The government had a Section 851 Notice on file
reporting a prior felony drug offense conviction. At the time
of Defendant Norman's sentencing in May of 2009, this
exposed him to a mandatory minimum sentence of twenty years
in prison. He was thirty-one years old at the time.
matter before the Court is Defendant Norman's motion for
modification or reduction in sentence under the newly enacted
First Step Act. (ECF No. 55). The Court appointed counsel to
assist Defendant Norman with his motion, and both sides have
filed briefs. The government responds that the First Step Act
reduces the statutory mandatory minimum applicable to
Defendant Norman, but that it does not affect Defendant's
maximum sentence or his guideline range. And because
Defendant Norman has already received a below-guideline
sentence, the government suggests no further reduction is
called for. (ECF No. 59). The defense replies by averring
that the First Step Act provides a free-standing remedy and
so the Court should conduct a plenary resentencing. It
contends that in such a proceeding, the Court may consider
several other matters and apply other changes in the law that
may favor the Defendant. For example, the defense contends
the Court should determine whether the predicate offense in
the government's Section 851 notice would qualify as a
predicate offense today. (ECF No. 60). The government opposes
any plenary proceeding.
Court sees no need for a hearing on the fully briefed issues.
Defendant Norman is eligible for relief under the First Step
Act, but the Court does not believe a plenary resentencing is
necessary or proper. Once eligibility is established,
however, everything else goes into the discretionary mix to
inform the Court's decision. The Court discerns a number
of considerations that justify a reduced sentence under the
First Step Act in this case. The Court can and does exercise
its discretion under the First Step Act to reduce Defendant
Norman's sentence as provided in this Opinion and
AND PROCEDURAL BACKGROUND
April 2008 a confidential informant (CI) told a detective
with the Kalamazoo Valley Enforcement Team (KVET) that large
quantities of crack cocaine could be purchased from an
individual later identified as Defendant Norman. KVET
detectives proceeded to conduct four controlled buys from
Defendant Norman between September 2 and October 21, 2008.
Defendant Norman was arrested after the last controlled
purchase on October 21, 2008. On that date he provided 59.39
grams of crack cocaine to the CI. KVET detectives
subsequently secured and executed a search warrant at
Defendant Norman's residence. There they seized
ammunition, drug paraphernalia, and $5, 488 in currency.
provided a written affidavit detailing that he had purchased
more than 2 kilograms of crack cocaine from Defendant Norman
over the previous year, however ultimately only 103.18 grams
of crack cocaine was attributed to Defendant Norman.
Charge & Plea
Norman was charged in a six-count indictment on November 19,
2008, with one count of conspiracy to distribute fifty grams
or more of crack cocaine (Count 1); four counts of
distribution of five grams or more of crack cocaine (Counts 2
through 5); and one count of distribution of 50 grams or more
of crack cocaine (Count 6). (ECF No. 1). On January 16,
2009, the government filed an information and notice of prior
drug conviction. (ECF No. 26). The filing notified the
defense and the Court of the Defendant's December 9, 1998
conviction for Delivery of a Controlled Substance. The effect
of this notice was to increase the range of statutory
penalties then applicable to Defendant Norman from ten years
to life imprisonment to twenty years to life imprisonment.
See 21 U.S.C. §§ 841(b)(1)(A)(iii); 851
February 2, 2009, Defendant Norman pleaded guilty to Count 1
(conspiracy to distribute 50 grams or more of crack cocaine).
(ECF No. 30). Under the terms of a written plea agreement,
the government agreed to move to dismiss the remaining
charges in the indictment at sentencing, not to oppose
Defendant's request for a reduction in his offense level
for acceptance of responsibility, and not to file an
additional Section 851 notice alleging that the defendant had
more than one prior felony drug conviction.
PSR & Sentencing
Final Presentence Report (PSR) prepared by the probation
officer found that Defendant Norman was responsible for
103.18 grams of crack cocaine. The quantity of narcotics
triggered an initial base offense level of 30. (PSR ¶
37). Two levels were added for Defendant's role as an
organizer in the offense, resulting in an adjusted offense
level of 32. (PSR ¶¶ 40, 42). After adjusting
downward for acceptance of responsibility, the total drug
offense level was 29. (PSR ¶ 45).
determined, however, that Defendant Norman qualified as a
career offender because he committed the offense of
conviction after sustaining two prior felony convictions for
controlled substance offenses. 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
Norman's total offense level. (PSR ¶ 49).
officer then scored Defendant's criminal history at seven
points, resulting in a criminal history category of IV.
Because Defendant was a career offender, however, his
criminal history was elevated to Category VI. (PSR ¶
70). The guideline range for a total offense level of 34 and
criminal history category of VI was 262 to 327 months. (PSR
¶ 106). At the May 14, 2009 sentencing the Court
granted a defense motion to depart, finding the guideline
range as calculated overstated Defendant's criminal
history. The Court departed one level, resulting in a
guideline range on the chart of 235 to 293 months. The ...