United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE
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.
AND PROCEDURAL BACKGROUND
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
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). 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
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) 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.
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.
parties apparently agree, and the record confirms, that the
sentencing judge held Defendant accountable, for purposes of
computing the guideline range, for enough
cocaine 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
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. 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
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.
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).
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.
DEFENDANT'S ELIGIBILITY FOR A REDUCED SENTENCE UNDER
THE FIRST STEP ACT
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. ...