United States District Court, E.D. Michigan, Southern Division
CORRECTED OPINION AND ORDER GRANTING MOTION FOR
M. LAWSON UNITED STATES DISTRICT JUDGE.
defendant Dramond Hicks pleaded guilty to selling more than
50 grams of crack cocaine, he was sentenced on November 21,
2002 to a prison term of 262 months. He now seeks
resentencing under the First Step Act. The government
concedes that Hicks is eligible under that legislation to be
resentenced but argues that the Court should not exercise its
discretion to do so. However, Hicks argues that his
already-lengthy stint in a federal prison has reformed him,
which is new information that may be considered on
resentencing. Therefore, the Court will schedule a
resentencing hearing, at which Hicks is entitled to be
present (unless he waives his presence) and request updated
information from the Probation Department.
December 19, 2001, Hicks was indicted for conspiracy to
distribute more than 50 grams of crack cocaine and violations
of other federal drug laws. The government sought to enhance
the penalty under 21 U.S.C. § 851, citing Hicks'
prior conviction of delivering less than 50 grams of cocaine.
That boosted Hicks' statutory mandatory minimum sentence
from 10 years to 20 under 21 U.S.C. § 841(b)(1)(A).
Hicks pleaded guilty to the conspiracy charge on July 21,
probation department found that Hicks possessed 148 grams of
cocaine base, which resulted in a base offense level of 30
under U.S.S.G. § 2D1.1. But because Hicks had prior
convictions for a felony drug offense and a crime of violence
(felonious assault), he was classified as a career offender
under U.S.S.G. § 4B1.1, and his net offense level became
34 after an adjustment for accepting responsibility.
Hicks's career offender status put him in criminal
history category VI, and the resulting guideline range was
262 to 327 months imprisonment. Under the pre-Booker
sentencing regime, the Court imposed a 262-month sentence
followed by a mandatory minimum 10-year period of supervised
release. The defendant appealed his sentence, but the Sixth
Circuit affirmed it as reasonable.
October 27, 2005, the Court considered Hicks's
post-Booker request for resentencing under 28 U.S.C.
§ 2255 and reimposed the same sentence.
defendant now is serving the last portion of his prison term
at a residential reentry center in Alabama. He is scheduled
to be released from custody on January 15, 2020, which is
when his ten-year term of supervised release will begin.
filed a pro se motion for resentencing under the
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
That legislation amends several sections of the U.S. Code
“to promote rehabilitation of prisoners and unwind
decades of mass incarceration.” United States v.
Brown, No. 05-00227, ___F.Supp.3d ___, 2019 WL 4942051,
at *1 (S.D. Iowa Oct. 8, 2019). In response, the government
acknowledges that the Act furnishes the Court with the
authority to resentence Hicks, but it notes that he still
qualifies as a career offender, his sentencing guidelines
have not changed, and there is no other reason to reduce his
sentence. Hicks, now represented by counsel, argues that
although his guidelines remain unchanged since the Court
originally sentenced him, he has changed. He attached two
letters addressed to the Court. The first letter was from
him, in which he stated that he behaved well in prison and
that he has participated in over 6, 000 hours of an HVAC
apprenticeship program. His wife wrote the second letter,
which stated that he has behaved well since being
incarcerated and that her health is declining, thereby
requiring his assistance at home.
a district court generally ‘may not modify a term of
imprisonment once it has been imposed,' 18 U.S.C. §
3582(c), a court may do so under certain limited
circumstances, including ‘to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.'” United States v.
Hall, 661 F.3d 320, 322 (6th Cir. 2011) (quoting 18
U.S.C. § 3582(c)(1)(B)). Hicks's offense of
conviction is one that the First Step Act addresses. In
section 404, Congress made retroactive the Fair Sentencing
Act's statutory changes for crack cocaine offense
penalties so that they apply to defendants who were sentenced
before August 3, 2010. The First Step Act, therefore, grants
district courts the authority to resentence those offenders.
First Step Act § 404(b) Pub. L. 115-391, 132 Stat. 5194
(Dec. 21, 2018) (“A court that imposed a sentence for a
covered offense may, on motion of the defendant, the Director
of the Bureau of Prisons, the attorney for the Government, or
the court, impose a reduced sentence as if sections 2 and 3
of the Fair Sentencing Act of 2010 (Pub. L. 111-220, 124
Stat. 2372) were in effect at the time the covered offense
makes no difference to Hicks's eligibility for
resentencing under the First Step Act that his sentencing
guidelines have not changed or that he was sentenced as a
career offender. United States v. Beamus, ___F.3d
___, 2019 WL 6207955, at *2 (6th Cir. 2019) (“The text
of the First Step Act contains no freestanding exception for
career offenders. Nor would one expect to see such an
exception. It makes retroactive the Fair Sentencing Act's
changes to the statutory range for crack cocaine
offenses.”). However, the Act imposes two limits on
eligibility. “Defendants may not seek a reduction if
their sentence was already modified to comport with the Fair
Sentencing Act . . . [a]nd defendants may not seek
resentencing under the First Step Act if they lost a prior
motion after a ‘complete review of the motion on the
merits.'” Beamus, 2019 WL 6207955, at * 2
(quoting First Step Act of 2018, § 404(c)). Neither
exception applies to Hicks.
defendant established eligibility, “[t]he First Step
Act ultimately leaves the choice whether to resentence to the
district court's sound discretion.” Ibid.
(citing First Step Act, Pub. L. 115-391 § 404(b), 132
Stat. 5194 (Dec. 21, 2018); United States v.
Hegwood, 934 F.3d 414, 418 (6th Cir. 2019)).
point, two more legal principles come into play. The first is
that Hicks may point to aspects of his life that have
transpired since his original sentence, which suggest that he
has been rehabilitated. Pepper v. United States, 562
U.S. 476, 490 (2011) (holding that on resentencing, “a
district court may consider evidence of a defendant's
rehabilitation since his prior sentencing and  such
evidence may, in appropriate cases, support a downward
variance from the advisory Guidelines range”). The
second is that when a court considers these factors, the
proceeding amounts to a resentencing - rather than a mere
correction of sentence under Federal Rule of Criminal
Procedure 35 - at which the defendant is entitled to be
present and allocute. United States v. Flack, 941
F.3d 238, 240 (6th Cir. 2019) (citing Fed. R. Crim. P.
43(a)(3), 32(i)(4)); see also Id. at 241 (noting
that “a district court resentences the defendant . . .
when it revisits the § 3553(a) factors and determines
anew what the sentence should be. A resentencing could thus
result in the same sentence as the one the district court
imposed initially” (citation omitted).
government contends that the Court should deny Hicks any
reduction in his sentence out of hand. It notes that he still
is a career offender, his sentencing guidelines remain at 262
to 327 months, and after United States v. Booker,
542 U.S. 220 (2005), which held that guidelines are ...