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United States v. Ware

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

October 16, 2019

UNITED STATES OF AMERICA
v.
ROBERT WARE

          MEMORANDUM OPINION

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Robert Ware's Motion for Imposition of a Reduced Sentence Pursuant to Section 404 of the First Step Act (Doc. No. 411, “the Motion”). The Government responded in opposition (Doc. No. 412), and Defendant replied (Doc. No. 415). For the reasons set forth herein, the Motion will be denied.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Sixth Circuit previously has summarized Defendant's trial and sentence as follows:

In March 1997, a federal jury found Ware guilty of conspiracy to distribute and possess[ ] with intent to distribute cocaine [Count One] and conspiracy to distribute and possess[ ] with intent to distribute cocaine base [Count 2] in violation of 21 U.S.C. § 846, and unlawful distribution and possession with intent to distribute cocaine [Count 3] in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Ware to 360 months of imprisonment and five years of supervised release. On appeal, a panel of this court affirmed Ware's conviction and sentence. United States v. Ware, 161 F.3d 414, 425 (6th Cir. 1998).

Ware v. United States, 55 Fed.Appx. 351');">55 Fed.Appx. 351 (6th Cir. 2003). Notably, Defendant was sentenced on June 9, 1997, slightly more than three years before the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). As the Court explained in rejecting an earlier challenge to Defendant's sentence:

In Apprendi, the Supreme Court announced that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at __ __, 120 S.Ct. at 2363-64. Courts are now recognizing that this rule changes how the weight of drugs must be treated in drug convictions. Courts can no longer treat the weight of the drugs as a sentencing factor that the trial judge can determine under a preponderance of the evidence standard. Instead, when the amount of drugs will increase the sentence beyond the maximum penalty that applies regardless of weight, the Government must charge the weight of the drugs in the indictment and must prove the weight of the drugs to a jury beyond a reasonable doubt.
Under Apprendi, it was error not to specify the weight of the drugs in Ware's indictment and not to allow a jury to determine the weight of the drugs beyond a reasonable doubt.

Ware v. United States, 124 F.Supp.2d 590, 593 (M.D. Tenn. 2000), aff'd, 55 Fed.Appx. 351');">55 Fed.Appx. 351 (6th Cir. 2003).[1] At the time of Defendant's sentencing, therefore, it was understood (incorrectly, in the Supreme Court's opinion as pronounced three years later) to be the Court's (not the jury's) job to determine the quantities for which Defendant was responsible for purposes of determining Defendant's maximum penalties (as prescribed by 21 U.S.C. § 841(b)(1)) for his three convictions.[2]

         It was also understood at the time of Defendant's sentencing that the Court was generally required to sentence a defendant within the applicable guideline range (as it existed prior to any departure that the Court might choose to express in terms of a different, post-departure guideline range)[3] because: (a) sentencing within the (pre-departure) guideline range was mandatory, absent some cognizable exception that would properly allow for an upward or downward departure; and (b) these authorized departures were “unavailable in most cases, ” being reserved for “limited, specific cases.” United States v. Booker, 543 U.S. 220, 233, 234 (2005), This was years before Booker instructed otherwise by declaring unconstitutional 18 U.S.C. § 3553(b)(1). Until then, within-guideline sentencing was considered generally mandatory-and absolutely mandatory unless the court found aggravating or mitigating circumstances not adequately taken into account in formulating the guidelines-because that is what 18 U.S.C. § 3553(b)(1) provided. See id.at 234.

         The sentencing judge's performance of these two tasks-(1) determining the quantity of drugs for purposes of ascertaining the mandatory maximum and minimum penalties on each of the three counts, and (2) determining the ostensibly mandatory guideline range for the three counts under the United States Sentencing Guidelines-is what is primarily at issue on Defendant's Motion. Regrettably, the sentencing judge was not as express or specific as he might have been in making these determinations, but he was clear enough to illuminate the correct path forward for the Court now.

         The parties apparently agree, and the record confirms, that the sentencing judge held Defendant accountable, for purposes of computing the guideline range, for enough cocaine[4] to result in a base offense level of 34, which in turn (with six extra levels of enhancements not here in dispute) led to a total offense level of 40. As the Government notes, Defendant did not challenge this conclusion on direct appeal, and this conclusion stands unrefuted today. Given Defendant's criminal history category (VI), this meant a final guideline range of 360 months to life in prison.

         Particular comments of the sentencing judge shed light on how and why he reached this guideline range. He was faced with a Government theory whereby, according to the Government, he could find a quantity of crack sufficient to result in a base offense level of 38 rather than 34.[5] Seeking to assess whether he needed to determine the quantity of crack, he made the following observations and inquiry.

THE COURT: Some of it obviously was crack and some of it was powder. He is looking at 30 years to life without consideration of the crack, Mr. Roden [the prosecutor]. Do you want the Court to make a finding of fact of how much crack there was?

(Doc. No. 390-5 at 4, Excerpt of Sentencing Hearing Transcript). To this, the prosecutor responded that an approximation would be sufficient. Ultimately, the sentencing judge determined neither a precise nor an approximate amount. Rather, the sentencing judge determined (and evidently felt the need to determine) only that he could not find Defendant accountable for 500 grams or more of crack, the amount necessary to increase Defendant's base offense level to 38 as requested by the Government. (Doc. No. 3905 at 5-6). Instead, the Court adopted the findings of the Presentence Investigation Report-which, the parties agree, assessed a base offense level of 34, and a resulting offense level of 40 based Defendant's responsibility for 26.6 kilograms of powder cocaine and 3.6 grams of crack. (Doc. No. 390-5 at 5-6, 8).

         From all of this, it is clear that the sentencing judge calculated a final guideline range of 360 months to life in prison, and that he did so without determining any particular amount of crack for purposes of Defendant's guideline computations under U.S.S.G. § 2D1.1. It is also clear that the sentencing judge would have calculated a final range of 360 to life even without including any amount of crack in his guideline computations under U.S.S.G. § 2D1.1.

         As the parties agree, and as reflected in the sentencing transcript (Doc. No. 390-5 at 9-10), the sentencing judge imposed a sentence of 360 months without distinguishing between the three counts of conviction, announcing apportionment of the sentence between counts, or otherwise announcing a sentence on each count. As noted above, Defendant's conviction and sentence were upheld on appeal. Ware, 161 F.3d 414. Moreover, Defendant has failed to obtain post-conviction relief in a series of collateral attacks, as summarized by the Government. (Doc. No. 412 at 4-9).

         Defendant now contends he is eligible for relief under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat 5194, and that he should receive such relief (in the form of a reduced sentence). The Government disputes both that Defendant is eligible for relief and that, even assuming eligibility for relief, he should receive such relief.

         DISCUSSION

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

         Section 404 gives retroactive effect to segments of the Fair Sentencing Act of 2010, 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. ...


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