United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING DEFENDANT DAVIS’S FIRST STEP
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Davis pleaded guilty to a Section 841(b)(1)(B) crack cocaine
offense in August 2008. At the time, the offense of
conviction exposed Defendant to a mandatory minimum sentence
of five years in prison and a maximum of forty years. On
December 23, 2008, the Court imposed a sentence of 210 months
imprisonment. This was the bottom end of Defendant’s
guideline range, after accounting for the government’s
5K motion, and still well above the mandatory minimum. Since
then, Defendant has received the benefit of certain
retroactive guideline amendments and is currently serving a
reduced sentence of 168 months imprisonment. According to the
Bureau of Prisons website, Defendant Davis is currently
scheduled to be released on June 11, 2020.
matter before the Court is Defendant Davis’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. 141). The Court appointed
counsel to assist Defendant Davis with his First Step motion.
Both sides have filed briefs. The government responds that
Defendant Davis is not eligible for a reduced sentence based
on the 4.15 kilograms of crack cocaine attributed to him in
the PSR. (ECF No. 145). The defense responds that the First
Step Act goes further and opens the door to a plenary
resentencing with the statutory range of 0 to 240 months in
Section 841(b)(1)(C) being the only limit. (ECF No. 144).
According to the defense this means, among other things, that
the Court should apply the current statutory framework and
take into account Defendant Davis’s post sentencing
behavior to impose a reduced sentence.
Court finds that Defendant Davis 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 Davis 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.
AND PROCEDURAL BACKGROUND
Defendant Davis’s Charge & Plea
2008, officers with the Kalamazoo Valley Enforcement Team
(KVET) arrested Travis Farris for trafficking crack cocaine.
Following his arrest, Mr. Farris waived his Miranda Rights
and told the interviewing officers that his supplier was
Defendant Davis. Mr. Farris further stated that for the past
eighteen months he had obtained at least two ounces of crack
cocaine per week from Defendant Davis, and on at least five
additional occasions, Defendant Davis had sold him 4.5 ounces
of crack cocaine.
8, 2008 KVET officers conducted a controlled buy from
Defendant and 62.9 grams of crack cocaine were involved in
that purchase. Defendant Davis was subsequently arrested.
While executing a search warrant of his residence, law
enforcement officers found cash currency, an empty box
relating to a digital scale, as well as a handgun and
Davis was indicted the following day on July 9, 2008. (ECF
No. 11). Thereafter he reached a plea agreement with the
government to plead guilty to a lesser charge contained in a
superseding felony information. That document charged
Defendant with conspiracy to distribute and possess with
intent to distribute five grams or more of crack cocaine in
violation of 21 U.S.C. §§ 846; 841(a)(1); and
841(b)(1)(B)(iii). (ECF No. 32). Defendant Davis pleaded
guilty to that charge in open court on August 19, 2008. (ECF
No. 33). In exchange for his guilty plea, the government
agreed (among other things) not to file a notice of prior
drug conviction that would serve to enhance Defendant’s
sentence under 21 U.S.C. § 851, and not to oppose
Defendant’s request for a reduction in his offense
level for acceptance of responsibility. (ECF No. 31).
PSR & Sentencing
Final Presentence Report (PSR) prepared by the probation
officer found that Defendant Davis was responsible for 4.15
kilograms of crack cocaine. (PSR ¶ 28). The quantity, in
turn, triggered an initial base offense level of 36, the
second highest level under the drug guidelines. (PSR ¶
45). Two points were then added under Section 2D1.1(b)(1) of
the sentencing guidelines for possession of a dangerous
weapon. (PSR ¶ 46). After adjusting downward for
acceptance of responsibility, the total offense level was 35.
(PSR ¶ 52). The officer next scored Defendant’s
criminal history at nineteen points, resulting in a criminal
history category of VI. (PSR ¶ 78).
guideline range for the offense, based on a total offense
level of 35 and criminal history category of VI, was 292 to
365 months on the chart. (PSR ¶ 117). These levels,
furthermore, were reached independent of Defendant
Davis’s status as a career offender. There were no
guideline objections raised during the June 14, 2010,
sentencing hearing and the Court accepted the PSR’s
guideline determination. The Court then granted a government
motion for a three-level reduction under Section 5K for
Defendant Davis’s substantial assistance. This resulted
in an offense level of 32, corresponding to a guideline range
of 210 to 262 months on the chart.
applying the Section 3553(a) factors during Defendant’s
sentencing, the Court concluded a sentence of 210 months was
appropriate to accomplish the purposes of sentencing. The
Court proceeded to impose a sentence of 210 months followed
by a 5-year term of supervised release. Judgment entered on
June December 24, 2008. (ECF No. 54). Defendant timely
appealed, and on October 16, 2009, the Sixth Circuit Court of
Appeals affirmed the Court’s Judgment. United
States v. Davis, No. 09-1059 (6th Cir. Oct. 16, 2009).
Defendant Davis’s Guideline Amendment 782
Following his unsuccessful appeal Defendant returned to his
criminal case to seek a reduced sentence under Guideline
Amendment 782. (ECF No. 113, 128). The probation officer prepared a
Sentence Modification Report with the following analysis
using the November 1, 2015 edition of the guideline manual.
Base Offense Level: 34 (based on 4.15 kilograms of crack
cocaine. See § ...