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States v. Burke

United States District Court, E.D. Tennessee, Greeneville

July 2, 2019

UNITED STATES OF AMERICA
v.
CHARLES BURKE

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

         This criminal matter is before the Court to address the defendant's January 16, 2019 motion to modify an imposed term of imprisonment, and defendant's May 23, 2019 supplemental motion for the imposition of a reduced sentence pursuant to the First Step Act. [Docs. 59, 61]. The government has responded, [Doc. 62], and defendant replied, [Doc. 65]. The matter is now ripe for review.

         I. Background

         In September 2008, the defendant pled guilty to Count One of the indictment for violating 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, conspiracy to distribute, and possession with the intent to distribute, fifty grams or more of a mixture or substance containing a detectable amount of cocaine base, and Count Nine of the indictment for violating 18 U.S.C. § 924(c)(1)(A), possession of a firearm in furtherance of a drug trafficking crime. [See Doc. 30]. At the March 2009 sentencing hearing, the Court found that the offense involved 567.3 grams of cocaine base, which corresponded to a base offense level of 34. [Presentence Investigation Report (PSR) ¶¶ 16]. After a three-level reduction for acceptance of responsibility, the Court calculated a Guidelines range of 135 to 168 months on Count One. See U.S.S.G. 4B1.1(b). Count Nine, possession of a firearm in furtherance of a drug trafficking crime, carried a mandatory consecutive sentence of 60 months' imprisonment. [PSR ¶ 56]. See 18 U.S.C. § 924 (c)(1)(A). With the consecutive sentence, defendant's total Guidelines range was 195 to 228[1] months' imprisonment.

         The Court imposed a sentence of 120 months as to Count One, and 60 months as to Count Nine, to run consecutively, for a total effective sentence of 180 months' imprisonment. [Doc. 51 at 2]. Defendant was sentenced to a five-year term of supervised release as to Count One and a five-year term of supervised release as to Count Nine, to run concurrently, for a total effective term of supervised release of five years. [Id. at 3]. The government and defendant inform the Court that defendant's current release date is August 16, 2021, according to the Federal Bureau of Prison's website. [Docs. 61 at 3, 62 at 2].

         II. Analysis

         “Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but the rule of finality is subject to a few narrow exceptions. Freeman v. United States, 564 U.S. 522, 526 (2011) (internal citation and quotation marks omitted). One such exception is 18 U.S.C. § 3582(c)(1)(B), which provides that a “court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . .” The First Step Act expressly permits sentence modification for some defendants.

         On December 21, 2018, the President signed the First Step Act of 2018, Pub. L. 115-391, into law. Section 404 of the Act gives retroactive effect to the changes made by Sections 2 and 3 of the Fair Sentencing Act of 2010. Section 404(a) defines a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372), that was committed before August 3, 2010.” Section 404(b) then provides that “[a] court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if Section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.”

         On August 3, 2010, the Fair Sentencing Act of 2010. Pub. L. 111-220, went into effect. Section 2 of the Act increased the quantity of cocaine base required to trigger the enhanced penalties of Section 841. Specifically, it raised the (b)(1)(A) threshold from “50 grams” to “280 grams” and the (b)(1)(B) threshold from “5 grams” to “28 grams.” See Dorsey v. United States, 567 U.S. 260, 269 (2012). Section 3 eliminated the mandatory minimum for simple possession of cocaine base under 21 U.S.C. § 844(a). Congress did not apply these changes retroactively to defendants sentenced before the Act's passage. Accordingly, the defendant could not obtain relief under the Fair Sentencing Act.

         Defendant argues that he is eligible for a sentence reduction under § 404. [Doc. 61]. More particularly, defendant argues his drug offense is a “covered offense” under Section 404(a), because the statutory penalty in Count One was modified by section 2 of the Fair Sentencing Act, and his violation was committed before August 3, 2010. [Id. at 4-6]. As such, he argues the Court should impose a reduced proportional sentence of 147[2] months' imprisonment, at the bottom of his new current guideline range, which he would then render him eligible for a time served sentence and subject to immediate release. [Id. at 6].

         The government argues that even though defendant committed his offense before August 3, 2010, and even though his offense carries the statutory penalties which were modified by Section 2 or 3 of the Fair Sentencing Act, he does not qualify for a sentence reduction. [Doc. 62 at 2-11]. The government further argues that it is the drug weight for which a defendant is held responsible and not the drug weight for which he was convicted that determines eligibility for First Step Act relief and that the drug quantity listed in defendant's PSR makes him ineligible. [Id.].

         Defendant argues “the quantity of crack charged and to which he pled guilty is the relevant quantity for determining whether defendant is eligible” for a § 404 reduction. [Doc. 61 at 6]. Specifically, defendant argues that drug weight is an element of the offense, and the statutory weight controls eligibility and not the drug weight in the factual basis of the plea agreement or the PSR. [Id. at 6-15]. Defendant maintains the 50 grams of cocaine base alleged in the plea agreement and indictment and not the 567.3 grams of cocaine base listed in the PSR dictate his eligibility under 404. [Id. at 15].

         The government asserts that whether a defendant is entitled to relief under the First Step Act depends on the amount of cocaine base for which he was found responsible in the PSR, rather than the amount for which he was indicted and convicted. [Doc. 62 at 11-12]. Because defendant was found responsible for 567.3 grams of cocaine base, which would make him subject to the 21 U.S.C. § 841(a)(1)(A) penalties, the government argues that he is not entitled to relief under the First Step Act. [Id. at 5].

         The government's interpretation of § 404(a) is contrary to the weight of persuasive authority, both within and outside the Sixth Circuit. See United States v. Rose, ___ F.Supp.3d ___, No. 03-CR-1501 (VEC), 2019 WL 2314479, at *11-13 (S.D.N.Y. May 24, 2019) (collecting cases); United States v. Stanback, ___ F.Supp.3d ___, 2019 WL 1976445, at *3 (W.D. Va. May 2, 2019) (concluding defendant was eligible for relief despite a judicial finding that he was responsible for 1.5 kilograms of crack cocaine); United States v. Pride, Nos. 1:07CR00020-001, 1:07CR00020-002, 2019 WL 2435685, at *13-14, (W.D. Va. June 11, 2019) (relying on the drug weight charged in the indictment and not the drug weight attributed in the PSR in considering defendant's First Step Act motion); United States v. Martinez, No. 04-cr-48-20 (JSR), 2019 WL 2433660, at *7 (S.D.N.Y. June 10, 2019) (collecting cases); United States v. Bradshaw, No. 2:05-cr-17-01, 2019 WL 2290595, at *4 (W.D. Mich. May 15, 2019) (holding the statute of conviction, and not the conduct outlined in the PSR controlled); United States v. Robinson, No. 97-30025, 2019 U.S. Dist. LEXIS 82432, at *4-6 (C.D. Ill. May 15, 2019) (finding defendant eligible for relief despite being held accountable for 500 grams of crack cocaine at sentencing); United States v. Allen, No. 3:96-cr-00149-RNC-3, 2019 WL 1877072, at *2-3 (D. Conn. Apr. 26, 2019); United States v. Davis, No. ...


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