United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR
SENTENCE REDUCTION
THOMAS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
On
October 28, 2009, an indictment was returned against
Defendant Delani Mosi Degrate charging him with two-counts of
drug trafficking and two firearms offenses. Count one of the
third superseding indictment is the only count relevant to
Defendant's motion. Count one alleged that Defendant
possessed with intent to distribute more than 50 grams of
cocaine base in the form of crack cocaine. (ECF No. 45).
The
parties entered into a Rule 11 Plea Agreement which provided
that Defendant would plead guilty to count one of the third
superseding indictment. The parties stipulated that the count
of conviction involved 134 grams of crack cocaine. The
government agreed to amend the notice of penalty enhancement
pursuant to 21 U.S.C. § 851 to reflect only one prior
felony drug conviction which decreased Defendant's
statutory sentence to 20 years to life, pursuant to 21 U.S.C.
§ 841(b)(1)(A). (ECF No. 50). The statutory minimum term
of supervised release was 10 years.
Because
Defendant had at least two prior qualifying convictions for
controlled substance offenses, he was classified as a career
offender under U.S.S.G. § 4B1.1, and his offense level
was 37. With a three-level reduction for acceptance of
responsibility, Defendant's total offense level was 34
with a criminal history category VI, resulting in a guideline
range of 262 to 327 months. (PSR ¶ s37-39, 54, 84). At
the sentencing hearing on March 18, 2010, the Court adopted
the guideline range in the presentence report and imposed a
custodial sentence of 235 months to be followed by 10 years
of supervised release. (ECF No. 53).
On
April 23, 2019, Defendant filed a motion for a sentence
reduction pursuant to the First Step Act of 2018. ECF No. 59.
The government filed a response on May 25, 2019, and
Defendant filed a reply on May 28, 2019. ECF Nos. 65-66.
I.
Pursuant
to Section 404(b) of the First Step Act, “a court that
imposed a sentence for a covered offense may . . . impose a
reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time the covered
offense was committed.” P.L. 115-391, Section 404(b).
In order to be eligible, the petitioner must have been
sentenced prior to August 3, 2010 (the date of the enactment
of the Fair Sentencing Act) for a “covered
offense” as defined in the First Step Act.
As this
Court explained in Brown (Case No. 07-cr-20195), the
Act does not require a plenary resentencing proceeding.
See P.L. 115-391, Sec. 404(c). (“Nothing in
this section shall be construed to require a court to reduce
any sentence pursuant to this section.”). Rather,
courts have discretion to modify a sentence for eligible
Defendants in response to a motion or on the court's own
initiative. See P.L. 115-391, Section 404(b).
Although the Act does not require a plenary resentencing
proceeding, courts nevertheless consider the Section 3553(a)
factors to determine whether a sentence modification is
warranted. See e.g. United States v. Boulding, 2019
WL 2135494, at *6 (W.D. Mich. May 16, 2019); United
States v. Delaney, 2019 WL 861418, at *1 (W.D. Va. Feb.
22, 2019). Consideration of these factors is also consistent
with United States Sentencing Commission's
guidance.[1]
II.
Defendant
has a long criminal history which began at age 17. Defendant
is now 46 years old with three children ages 28, 22, and 11.
He has a long substance abuse history dating back to age 15.
He has indicated a need for substance abuse treatment. He has
no long-term employment history and no debt or income. His
highest level of education is high school.
Defendant
was sentenced on March 18, 2010 for possession with intent to
distribute 50 grams of cocaine base. Therefore, he is
eligible for a reduction under the First Step Act. Because of
his status as a career offender under U.S.S.G. § 4B1.1,
Defendant's offense level and corresponding guideline
range remains unchanged after the First Step Act. His offense
level of 34 (base offense level of 37 with a 3-level
reduction for acceptance of responsibility) results in a
guideline range of 262 to 327 months. Pursuant to Section
841(b)(1)(B) of the Fair Sentencing Act (now retroactively
applicable via the First Step Act of 2018), the statutory
minimum penalty for career offenders such as Defendant who
are convicted of possession of less than 280 but more than 28
grams of cocaine base has been reduced from 20 years to 10
years.
The
parties stipulate that Defendant's guideline range of 262
to 327 months has not changed, although his statutory
mandatory minimum has been reduced from 20 years to 10 years,
and his statutory minimum term of supervised release has been
reduced from 10 years to 8 years pursuant to 841(b)(1)(B).
The parties disagree as to whether, in light of these facts,
he is “eligible” for a reduction, and whether a
reduction is warranted.
The
Court has discretion to reduce Defendant's sentence in
this case. Pursuant to the first step act “a court that
imposed a sentence for a covered offense may . . . impose a
reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time the covered
offense was committed.” Had the Fair Sentencing Act
been in effect at the time the offense was committed, the
mandatory minimum sentence would have been 10 years, not 20.
Pursuant to Section 3553(a)(3), a Court must consider not
only the guideline range but also the statutory minimum and
maximum penalties in reaching a sentencing decision. See
United States v. McCloud, 730 F.3d 600, 610 (6th Cir.
2013) (explaining that consideration of “the kinds of
sentences available” under 3553(a)(3)
“necessarily includes the statutory minimum and maximum
ranges.”). The Court was required to consider the
statutory minimum when imposing the initial sentence. That
minimum has now changed. Accordingly, Defendant is a
candidate for a discretionary reduction even though his
guideline range has not changed.[2]
In
addition to the amended statutory minimum, Defendant's
post-sentencing conduct is a relevant consideration when
reevaluating his sentence. See Pepper v. U.S. 562
U.S. 476 (2011) (holding that post-conviction behavior could
be considered in the context of the Section 3553(a) factors
during a resentencing following an appeal). Here, Defendant
has produced evidence that he has been productive during his
ten years of incarceration. He worked for 3.5 years as a
Computer Data Processor at FCI Elkton and obtained a
journeyperson apprenticeship in Computer Peripheral-EQ-OP.
ECF No. 63. He ...