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United States v. Stone

United States District Court, M.D. Tennessee, Nashville Division

September 6, 2019

UNITED STATES OF AMERICA
v.
MACK STONE

          MEMORANDUM OPINION

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Mack Stone's Motion for Imposition of a Reduced Sentence Pursuant to Section 404 of the First Step Act (Doc. No. 102, “the Motion”). The Government responded in opposition (Doc. No. 111), and Defendant replied (Doc. No. 112) and then supplemented his reply (Doc. No. 113, Doc. No. 114). As discussed below, the Motion will be granted without a hearing, and the Court will impose a reduced sentence of 30 years' imprisonment for his sole count of conviction, conspiracy to distribute 50 grams or more of crack cocaine. All other provisions of the judgment will remain unchanged.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant was indicted August 25, 2004 on a single count, conspiracy to distribute 50 grams or more of crack cocaine, contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846. (Indictment, Doc. No. 16).[1] In October 2004, the United States filed an information alleging that Defendant had two prior felony drug convictions, (Information Alleging Prior Convictions, Doc. No. 23), which, pursuant to § 841(b)(1)(A) at that time, increased Defendant's mandatory minimum sentence upon conviction to life imprisonment. On November 2, 2004, Defendant was convicted by a jury, which found that his offense involved 50 grams or more of crack cocaine. (Jury Verdict, Doc. No. 43). Although the jury made no specific quantity finding, the Presentence Report attributed 100 ounces (2.835 kilograms) of crack cocaine to Defendant's conspiracy, (Doc. No. 60 at 8), and at the original sentencing hearing held on February 4, 2005, Judge Haynes found a Base Offense Level consistent with at least 1.5 kilograms of crack cocaine, (Doc. No. 72 at 41). Judge Haynes imposed a sentence of life imprisonment, (Judgment, Doc. No. 59), which was statutorily manDated: the time based on the jury's finding of 50 grams or more and Defendant's two prior convictions..

         Defendant now contends that he is eligible for relief under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat 5194. Section 404 gives retroactive effect to segments of the Fair Sentencing Act of 2010, Public Law 111-220, 124 Stat. 2372 (“FSA”), which increased the respective threshold quantities of crack cocaine required to trigger each of the tiered statutory maximum and minimum punishments prescribed by 21 U.S.C. § 841(b)(1).[2] See First Step Act § 404 (at times hereinafter “§ 404”); FSA § 2.

         Section 404 permits courts to grant relief for defendants convicted of a “covered offense, ” meaning “a violation of a Federal criminal statute, the statutory penalties for which were modified by Section 2 or 3 of the [FSA], that was committed before August 3, 2010[.]” § 404. By its terms, Section 404(b) makes a defendant eligible for relief provided only that the defendant was convicted of a “covered offense.” Nothing more is required for the defendant to be eligible for relief. E.g., United States v. Boulding, 379 F.Supp.3d 646, 651 (W.D. Mich. 2019) (“[E]ligibility under the language of the First Step Act turns on a simple, categorical question: namely, whether a defendant's offense of conviction was a crack cocaine offense affected by the Fair Sentencing Act.”); United States v. Burke, No. 2:08-CR-63(1), 2019 WL 2863403, at *3 (E.D. Tenn. July 2, 2019) (“[T]he defendant is eligible for relief as to Count One under the First Step Act because he was convicted of a ‘covered offense' under Section 404(a)'s definition.”).

         If the defendant is eligible for relief based on satisfying this single requirement, a court (namely, the one that sentenced him previously) may “impose a reduced sentence as if Sections 2 and 3 of the [FSA] were in effect at the time the covered offense was committed.” § 404(b). Importantly, that is the relief (and the only relief) available under the First Step Act: “a reduced sentence . . . as if Sections 2 and 3 of the [FSA] were in effect at the time the covered offense was committed.” However, “[n]othing in [Section 404] shall be construed to require a court to reduce any sentence pursuant to [that] section.” § 404(c). Instead, the decision to impose a reduced sentence for an eligible defendant is within the court's discretion. Boulding, 379 F.Supp.3d at 654 (First Step Act “leav[es] the Court with discretion to deny relief completely, or to tailor relief to fit the facts of the case.”); Burke, 2019 WL 2863403, at *3 (“Because the defendant is eligible for relief, this Court has the discretion under 404(b) to impose a reduced sentence in accordance with the statutory penalties.”) (internal quotation marks omitted).

         Defendant contends that he is eligible for such relief, that he should receive it, and that 20 years' imprisonment is an appropriate reduced sentence. (See Doc. No. 113 at 1). The Government responds that no relief is due. (See Doc. No. 16).

         DISCUSSION

         I. DEFENDANT'S ELIGIBILITY FOR A REDUCED SENTENCE UNDER THE FIRST STEP ACT

         As detailed above, finding that a defendant was convicted of a covered offense is the prerequisite for First Step Act eligibility for a reduced sentence-in fact, the only one beyond the requirement that any court imposing the reduced sentence be the one that imposed the sentence originally. Only “violations” for which the statutory penalties changed under section 2 or 3 of the FSA are covered offenses. Section 2 of the FSA did change the penalties for 21 U.S.C. § 841(a)(1)-the statute Defendant was found guilty of violating-although it changed only the boundaries of the statute's punishment tiers (prescribed in Section 841(b)(1)) and not the punishments (maximum or minimum) within those tiers. The threshold for the lowest tier moved from (a) less than 5 grams to (b) less than 28 grams; the intermediate tier moved from (a) between 5 grams and less than 50 grams to (b) from between 28 grams and less than 280 grams; and the highest tier moved from (a) 50 grams and up to (b) 280 grams and up. See FSA § 2. Thus, a defendant's crime qualifies as a “covered offense” only if the quantity of crack underpinning the sentence puts him in a tier post-FSA that is different from the tier he was sentenced in pre-FSA.

         Two approaches have emerged regarding the calculation of the quantity of crack courts are to use when determining whether a defendant was sentenced for a covered offense. The Government advocates for the “conduct-controls” theory, [3] as the Court will term it. Under this view, the new FSA thresholds should be applied to the total crack quantity attributed to the defendant's conduct at the time of sentencing. That would be at least 1.5 kilograms in this case, per the Base Offense Level found at sentencing. (Doc. No. 72 at 41). The Government argues that, because the 1.5 kilograms of crack implicated by Defendant's conduct is well above both the original 50-gram threshold and the FSA's 280-gram threshold, his sentence would be no different “if [the FSA was] in effect at the time the covered offense was committed.” (Doc. No. 111 at 6 (citing FSA § 4)). Therefore, according to the Government, no First Step Act relief should be afforded.

         Defendant instead subscribes to the “conviction-controls”[4] theory, as the Court will term it. Under this view, a quantity established by a Presentence Report, stipulated as a factual basis for a plea agreement, or found by a sentencing judge is irrelevant; the FSA thresholds are instead applied to the quantity of crack alleged in the indictment (or information) containing the charge(s) upon which the defendant was convicted. In this case, both the indictment and conviction referenced only 50 grams of crack cocaine. Defendant argues that, because the grand jury and petit jury each passed only on allegations concerning 50 grams of crack cocaine, Defendant's prison term would fall within the FSA's 28-280-gram punishment tier “if [the FSA was] in effect at the time the covered offense was committed.” (Doc. No. 102 at 4 (citing FSA § 4)). This would expose Defendant to a mandatory minimum of 10 years imprisonment[5] in lieu of mandatory life.

         The court agrees with Defendant and adopts the conviction-controls approach for several reasons. Firstly, the conviction-controls approach appears to be the prevailing interpretation of the law. Compare, e.g., United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *2 (N.D. Ill. June 20, 2019) (“[N]early every court to address the issue agrees . . . eligibility for relief under the First Step Act is determined by the amount charged in the indictment, not the amount admitted in the plea agreement or found at sentencing.”); United States v. Martinez, No. 04-CR-48-20 (JSR), 2019 WL 2433660, at *3 (S.D.N.Y. June 11, 2019) (collecting cases in favor of conviction-controls approach); Burke, 2019 WL 2863403, at *2 (“The [conduct-controls theory] is contrary to the weight of persuasive authority, both within and outside the Sixth Circuit.”), with, e.g., United States v. Blocker, 378 F.Supp.3d 1125, 1129 (N.D. Fla. 2019) (“The [conviction]-controls theory misreads the statute and is demonstrably inconsistent with Congress's intent.”). Courts adopting the conduct-controls theory have been described as “cutting against the grain” and “outliers.” Martinez, 2019 WL 2433660, at *3.

         Some courts adopting the conviction-controls theory maintain that the question is how to construe the word “violation” included in Section 404's definition of covered offense, believing that eligibility for relief turns on whether the defendant's “violation . . . [was one] for which [the penalties] were modified” by the FSA. § 404(a). Such courts construe “violation” to refer to the charge contained in the indictment (or information) upon which the defendant is convicted (by guilty plea or jury verdict)-not the facts of the criminal act itself. See Id. at *2 (“‘[V]iolation of a Federal criminal statute' refers to the amount charged in the indictment upon which [Defendant] was convicted, not the amount attributed to him by judicial finding.”). While this is not necessarily the most intuitive reading of “violation” in the Court's view, [6] it is certainly colorable.

         Other courts adopting the conviction-controls approach see it differently, believing that the phrase “the penalties for which were modified [by the FSA]” qualifies not the word “violation” but rather the phrase “Federal criminal offense” and that therefore eligibility for relief turns on whether the defendant was sentenced for violating a “Federal criminal statute, the penalties for which were modified” by the FSA. § 404(a). See, e.g., United States v. Rose, 379 F.Supp.3d 223, 228 (S.D.N.Y. 2019) (opining that § 404(a)'s “penalties” clause modifies the phrase, “Federal criminal statute, ” immediately adjacent to it rather than the noun, “violation, ” further from it); United States v. Graves, No. 2:04-CR-070, 2019 WL 3161746, at *2 (E.D. Tenn. July 15, 2019) (“[T]he First Step Act uses the words ‘the statutory penalties for which were modified by' to describe the immediately preceding words ‘a Federal criminal statute.'”). For ...


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