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United States v. Norman

United States District Court, W.D. Michigan, Southern Division

July 23, 2019





         Defendant 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.

         The 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.

         The 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 accompanying Order.


         1. Offense Conduct

          In 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.

         The CI 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.

         2. Charge & Plea

         Defendant 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).[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 (2009).

         On 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.[2]

         3. PSR & Sentencing

         The 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).

         The PSR 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).

         The 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).[3] 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 ...

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