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United States v. Cole

United States District Court, N.D. Indiana, Fort Wayne Division

July 29, 2019




         Defendant, Robert Cole, a federal prisoner, sought appointment of counsel to determine if his sentence should be reduced under the provisions of the First Step Act of 2018. On March 4, 2019, this Court referred the defendant's case to the Federal Community Defenders, Inc. (“FCD”) to determine if the defendant qualified for the relief he sought and the FCD filed his appearance on the same date. Subsequently, the FCD moved to withdraw as counsel after he concluded that Cole was ineligible for relief under the First Step Act. This Court granted that motion on April 29, 2019. [DE 82]. Cole was advised that if he disagreed with the FCD's conclusion, upon the FCD's withdrawal he may file a pro se motion for reduction of sentence. [DE 75]

         This leads the Court to Cole's present pro se motion styled “Motion for Equitable Relief Pursuant to the First Step Act of 2018, §404, Alternatively, Pursuant to 18 U.S.C. §3582, §3553, §3661, Respective to Petitioner's Term of Imprisonment” [DE 83] filed on May 16, 2019. The Government responded on May 21, 2019 and the Defendant replied on June 10, 2019. For the following reasons, the Court will GRANT Cole's Motion as it relates to his eligibility to be considered for relief under the First Step Act. The Court will TAKE UNDER ADVISEMENT Cole's motion with respect to the issue of resentencing. The FCD will be reappointed for purposes of raising any issues as to resentencing.


         Cole was charged in a four count Indictment that included drug and gun offenses. Specifically, Counts 3 and 4 charged Cole with possessing with intent to distribute 5 grams or more but less than 50 grams of cocaine base “crack” in violation of 21 U.S.C. §841(a)(1) and carrying a firearm during and in relation to that drug trafficking crime in violation of 18 U.S.C. §924(c). Count 3 was based on actual conduct involving 42.2 grams of cocaine base “crack” and carried a mandatory minimum of five years. In addition, the firearms offense carried a mandatory consecutive sentence of not less than five years, bringing the aggregate minimum Cole faced to ten years. 18 U.S.C. § 924(c)(1)(A) (“[A]ny person who, during and in relation to any ... drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years.”). The Government also filed its notice under 21 U.S.C. §851(a)(1) indicating its reliance on a prior felony drug conviction to double the statutory drug penalty in Count 3 to a mandatory 10 years for Cole, or an aggregate mandatory sentence of 180 months.

         Cole ultimately pled guilty to Counts 3 and 4. At sentencing however, Cole was further determined to be a career offender under U.S.S.G. §4B1.1 based on two prior controlled substance offenses. Based on this determination, Cole faced a sentencing guideline range of 262 to 327 months. However, in his plea agreement, the parties agreed to a binding sentence of 240 months. In reliance on that plea agreement, the undersigned sentenced Cole to 180 months imprisonment for Count 3 and a 60 month consecutive sentence for Count 4.


         Long ago the Supreme Court established the general principle that, “[n]o one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.” Mackey v. United States, 401 U.S. 667, 691, 91 S.Ct. 1171, 1179 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). For this reason, “ ‘a judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment” and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(b)).

         Relevant here, §3582(c)(1)(B) authorizes a court to “modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute ....” (Emphasis added). In this regard, §404(b) of the First Step Act of 2018 (“First Step Act”) expressly permits the Court “that imposed a sentence for a covered offense” to “impose a reduced sentence as if sections 2 and 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.” First Step Act of 2018, 115 Pub. L. 391 § 404, 132 Stat. 5194, 5222 (2018). A “covered offense” is defined 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.” Id..

         Review under the First Step Act is a two-step process. See United States v. Boulding, 379 F.Supp.3d 646, 651 (W.D. Mich. May 16, 2019). The first step is determining eligibility. Once a defendant is determined to be eligible for a reduced sentence, the Court then determines whether to exercise its discretion to reduce the defendant's sentence. This determination is informed by a guideline comparison between the guidelines as they existed during the original sentencing and the guidelines as they exist today, as well as from any other information the parties present or the Court chooses to consider. Based on this information, the Court will then determine the extent of any reduction it decides in its discretion to award, consistent with statutory limits, non-binding guideline considerations, and the §3553 factors.

         I. Eligibility

         Cole asserts that he is eligible for consideration for resentencing under §404 of the First Step Act because he was convicted of a “covered offense” before the effective date of the Fair Sentencing Act and does not implicate any of the other limitations in §404. He makes a relatively straightforward argument that his federal statute of conviction, 21 U.S.C. §841(a)(1), was, in fact, modified by the Fair Sentencing act thereby making him eligible for relief under the First Step Act.

         The Government opposes Cole's motion in what appears to be part of a nationwide argument advocated by the Department of Justice in virtually all these types of cases throughout the country. The Government's position is that if the defendant pled to, was convicted of, or trafficked in, a drug quantity that matches or exceeds the triggering quantities in the amended statutory penalties, then the defendant is not eligible for relief under §404 . See, e.g., United States v. Boulding, 379 F.Supp.3d at 651 (“The government argues that a defendant is eligible for consideration only if his actual offense conduct quantities fall below the statutory thresholds of the Fair Sentencing Act.”); United States v. Johnson, No. 01-543, 2019 WL 2590951, at *2 (N.D. Ill. June 24, 2019) (“The Government argues that Johnson is not eligible for relief under the First Step Act because ‘the record confirms' that the quantity of crack cocaine ‘involved' in Johnson's offense was over 280 grams, such that the Fair Sentencing Act would not have modified the applicable statutory penalty.”); United States v. Rose, 379 F.Supp.3d 223, 228 (S.D.N.Y. 2019) (“The Government argues that the Court should assess eligibility on the basis of Defendants' actual conduct, rather than the statute of conviction.”).

         With respect to Cole specifically, the Government argues that at the time of his offense, the pertinent statutory threshold under which the Government operated to charge Cole was more than 5 grams but less than 50 grams. While the Fair Sentencing Act did alter this threshold to increase the amount of crack necessary to trigger a five year mandatory minimum to 28 grams, Cole's conduct involved 42.2 grams. Thus, the Government argues that even under the Fair Sentencing Act, Cole would still be subject to a 5 year mandatory minimum sentence because the statutory ...

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