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United States v. Powers

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

August 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KALOUP POWERS, Defendant.

          OPINION REGARDING DEFENDANT POWERS'S FIRST STEP ACT MOTION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Defendant Powers pleaded guilty to a Section 841(b)(1)(A) crack cocaine offense in February 2010. The offense of conviction exposed Defendant to a mandatory minimum sentence of ten years in prison and a maximum of life. On June 15, 2010, the Court imposed a sentence of 156 months imprisonment. This was below Defendant's guideline range, but still three years above the mandatory minimum. Since then, Defendant has received the benefit of certain retroactive guideline amendments and is currently serving a reduced sentence of 151 months imprisonment. According to the Bureau of Prisons website, Defendant Powers is currently scheduled to be released on May 15, 2021.

         The matter before the Court is Defendant Powers'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. 401). The Court appointed counsel to assist Defendant Powers with his First Step motion. Both sides have filed briefs. The government responds that Defendant Powers is not eligible for a reduced sentence based on the 18 kilograms of crack cocaine attributed to him in the PSR. Alternatively, the government asserts that no reduction is warranted in this case, even if the Court finds him technically eligible. (ECF No. 407). The defense responds that 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. 408). According to the defense this means, among other things, that the Court should apply the current statutory framework and take into account Defendant Powers's post sentencing behavior to impose a reduced sentence.

         The Court finds that Defendant Powers 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 First Step Act grants reviewing courts the discretion to reduce, or not to reduce, an eligible defendant's sentence. The Court concludes, in its discretion, that no reduction is warranted for this eligible defendant. While the range of statutory penalties applicable to Defendant Powers may be reduced after applying the First Step Act, that range never constrained this Court in determining an appropriate sentence when imposing the original sentence. For this reason, and those detailed more fully below, the Court denies Defendant's motion to the extent it seeks a reduced sentence.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Defendant Powers's Charge & Plea

         Sometime around the fall of 2007, officers with the FBI in St. Joseph, Michigan, began an investigation into a drug trafficking organization (DTO) led by William Berry. As the investigation proceeded, investigators grew to suspect the DTO was moving multi-kilogram quantities of both powder and crack cocaine in Southwestern Michigan and Northern Indiana. Investigator reports subsequently connected Defendant Powers to the Berry DTO. Officers learned Defendant Powers was the brother-in-law of Mr. Berry, and that Defendant Powers worked as a middleman for customers of the Berry DTO. Defendant Powers was arrested in July 2009 as part of the FBI's takedown of the DTO.

         Defendant Powers, along with other members of the Berry DTO, was indicted on July 15, 2009. (ECF No. 1). With respect to Defendant Powers, the Indictment charged him with conspiracy to distribute five kilograms or more of powder cocaine and 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii) & (iii) (Count 1). (ECF No. 1). On February 25, 2010, Defendant Powers pleaded guilty to Count 1 of the Indictment under the terms of a written plea agreement. (ECF No. 131).

         2. PSR & Sentencing

         The Final Presentence Report (PSR) prepared by the probation officer found that Defendant Powers was responsible for 18 kilograms of crack cocaine. (PSR ¶ 27). The quantity, in turn, triggered an initial base offense level of 38, the highest level under the drug guidelines.[1]After adjusting downward for acceptance of responsibility, the total offense level was 35. (PSR ¶ 96).

         The officer next scored Defendant's criminal history at three points, resulting in a criminal history category of II. (PSR ¶ 100). The guideline range for the offense, based on a total offense level of 35 and criminal history category of II, was 188 to 235 months on the chart. (PSR ¶ 139). There were no guideline objections raised during the June 14, 2010, sentencing hearing and the Court accepted the PSR's guideline determination.

         In applying the Section 3553(a) factors during Defendant's sentencing, the Court concluded a sentence within the guideline range was too much punishment to achieve the purposes of sentencing. The Court highlighted a number of considerations that led it to conclude as much, including that Defendant's involvement in the conspiracy was less significant than with respect to other defendants in the conspiracy; and that Defendant had only minimal contact with the criminal justice system before the offense of conviction.

         The Court then concluded that a modest downward variance would better reflect the sentencing considerations. The Court declined, however, to vary downward to the mandatory minimum (as suggested by the defense) noting that such a reduction would be inappropriate for “somebody that has dealt for a period of years in significant quantities of crack cocaine that are a multiple of what would be required to move into the range of level 38 as a base offense.” (ECF No. 279, PageID.1072).

         The Court proceeded to impose a sentence of 156 months on Count 1, followed by a 5-year term of supervised release. Judgment entered on June 15, 2010. (ECF No. 196). Defendant did file a direct appeal of his convictions or sentence.

         3. Post Sentencing Matters

         A. Defendant Powers's Section 2255 Motion

         On September 6, 2011, Defendant Powers filed a motion to vacate, set aside or correct his sentence under Section 2255. Powers v. United States, 1:11-cv-937 (W.D. Mich. filed Sept. 6, 2011). Defendant Powers initially asserted he received ineffective assistance of counsel for counsel's failure to file an appeal, but Defendant subsequently sent a letter to the Court stating he was seeking to challenge the calculation of his sentence and asking the Court to “disregard” his Section 2255 motion. The Court dismissed the Section 2255 motion on April 19, 2012. (2255 ECF No. 12).

         B. Defendant Powers's Guideline ...


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