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United States v. Rogers

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

September 25, 2019





         Defendant Rogers pleaded guilty to a Section 841(b)(1)(A) drug offense and a perjury offense in June of 2008. The 2.30 kilograms of crack cocaine attributable to him and his criminal history score placed his guidelines at 292 to 365 months imprisonment on the chart, well above the ten-year mandatory minimum penalty then applicable to him.

         The matter before the Court is Defendant Rogers’s motion for modification or reduction in sentence under the newly enacted First Step Act. (ECF No. 31). The Court appointed counsel to assist Defendant Rogers with his motion, and both sides have filed briefs. The government responds that Defendant Rogers is not eligible for a reduced sentence based on the quantity of crack cocaine attributed to him in the PSR. The defense replies by averring that the First Step Act provides a free-standing remedy that permits a discretionary reduction in Defendant Rogers’s sentence.

         The Court finds that Defendant Rogers is eligible for relief under the First Step Act. After considering all relevant information of record, including without limitation the lower guidelines that could apply to Defendant today, and Defendant’s record in the Bureau of Prisons, the Court exercises its discretion to provide a limited reduction in Defendant Rogers’s sentence as provided in this Opinion and corresponding Order.


         1. Offense Conduct

          In November 2006, an officer with the Battle Creek Police Department performed a traffic stop on a vehicle in which Ms. Nekia Miller was the driver and Defendant Rogers was a passenger. After it was discovered neither of them had a driver’s license, the officer placed the two in his patrol vehicle and searched the car. He discovered four cellular telephones, and a plastic grocery bag containing a substance that tested positive for crack cocaine. Later lab testing confirmed the field test and concluded the crack cocaine weighed 283.07 grams.

         Initially Ms. Miller stated the crack cocaine belong to her. She waived her Miranda rights and repeated her admission to the interviewing officers. Defendant Rogers also waived his Miranda rights and stated he had no knowledge of the crack cocaine. And later, on January 25, 2007, Defendant Rogers testified under oath in front of a grand jury that the crack cocaine seized from the vehicle was not his, and that he did not know the drugs were in the vehicle until the police discovered them. These initial statements were not true. In fact, the drugs belonged to Defendant Rogers, not Ms. Miller, as both later admitted. The initial story was concocted at Defendant Rogers’s behest in hopes he could avoid the added exposure of a new drug crime in light of his previous conviction history.

         Ms. Miller’s brother, Daniel Miller, was also interviewed by the DEA. Daniel Miller told the DEA that he had purchased crack cocaine from Mr. Rogers on at least four occasions, and each time he purchased between 1/8 and 1 ounce of crack cocaine. Daniel Miller had also seen Defendant Rogers on two separate occasions with a “brick, ” or kilogram, of crack cocaine.

         2. Charge & Plea

          Defendant Rogers was charged in a three-count indictment on February 28, 2008, with one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of crack cocaine (Count 1); one count of actual possession of fifty grams or more of crack cocaine (Count 2); and one count of perjury for the false testimony before the grand jury (Count 3).

         On June 30, 2008, Defendant Rogers pleaded guilty to Count 1 and Count 3 under the terms of a written plea agreement. (ECF Nos. 14 & 15). Under the terms of the plea agreement, the government agreed to move to dismiss the remaining charge 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 a Section 851 notice alleging that Defendant had more than one prior felony drug conviction.[1]

         3. PSR & Sentencing

          The two counts of conviction were grouped for purposes of sentencing.[2] The Final Presentence Report (PSR) prepared by the probation officer found that Defendant Rogers was responsible for 2.30 kilograms of crack cocaine. The quantity of narcotics triggered an initial base offense level of 36. (PSR ¶ 51). Two levels were added for obstruction of justice (PSR ¶ 55), resulting in an adjusted offense level of 38. (PSR ¶ 56). After adjusting downward for acceptance of responsibility, the total drug offense level was 35. (PSR ¶ 67).

         The PSR also determined that Defendant Rogers 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. ยง 4B1.1(b)(A). Since the offense level of 35 calculated under ...

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