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Hall v. United States

United States District Court, N.D. Alabama, Southern Division

February 8, 2017

JERMAINE HALL, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:12-CR-0391-SLB-JHE



         This case is presently pending before the court on Motion Pursuant to 28 U.S.C. §1651[1] and 28 U.S.C. § 2255 for Newly Discovered Evidence to Vacate, Set Aside, or Correct a Sentence in the Interest of Justice [hereinafter “Motion to Vacate”], (doc. 1; crim. doc. 20), [2] and Motion Pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(a)(1) & (c) for Reduction of Sentence by a Person in Federal Custody [hereinafter “Motion to Reduce Sentence”], (crim. doc. 19), filed by Jermaine Hall. The Government filed a Motion to Dismiss the Motion to Vacate, (doc. 4), to which Hall filed a Response, (doc. 7), and a First Amended 28 U.S.C. § 2255 (f)(3) Motion [hereinafter “Amended Motion to Vacate”], “seek[ing] relief from his predicate conviction, in light of Johnson [v. United States], 135 S.Ct. 2551 (2015)”, (doc. 6). Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that Hall's Motion for Reduction of Sentence, (crim. doc. 19), is due to be denied, the Government's Motion to Dismiss, (doc. 4), is due to granted and Hall's Motion to Vacate, (crim doc. 20; doc. 1), and his Amended Motion to Vacate, (doc. 6), are due to be denied.

         I. BACKGROUND

         In August 2012, petitioner Jermaine Hall was indicted on three counts of “knowingly, intentionally, and unlawfully distribut[ing] a mixture and substance containing a detectable amount of heroin, a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C).” (Crim. doc. 6.) He subsequently agreed to plead guilty to all counts. (Crim. doc. 11 at 1 [sealed].) The court accepted his plea, finding it freely and voluntarily entered. (Crim. doc. 21 at 16.)

         The Probation Office prepared a Presentence Investigation Report [hereinafter “the Report”]. (Doc. 1-1.) The Report indicated two prior convictions for “controlled substance offenses.” (Id. at 4-5, 24 [citing U.S.S.G. § 4B1.1].) At sentencing, the court found, inter alia, that Hall's prior state-court conviction for first degree marijuana possession other than for personal use[3] was a controlled substance offense under the Sentencing Guidelines in light of Eleventh Circuit decisions United States v. Coleman, 464 Fed.Appx. 832 (11th Cir. 2012), and United States v. Robinson, 583 F.3d 1292 (11th Cir. 2009). (Crim. doc. 22 at 9-10.) Thus, Hall was considered a career offender under the Sentencing Guidelines. (Id. at 10.)

         The court sentenced Hall to a term of imprisonment of 151 months on each of the three Counts of the Indictment, with the sentences to be served concurrently. (Crim. doc. 17 at 2.) Judgment was entered on August 9, 2013. (Id. at 1.) Hall did not appeal.

         On April 20, 2015, Hall filed a Motion to Reduce Sentence, (crim. doc. 19), and a Motion to Vacate, (crim. doc. 20; doc. 1). The Government moved to dismiss his Motion to Vacate as untimely. (Doc. 4.) Thereafter, Hall filed a Response to the Motion to Dismiss and an Amended Motion to Vacate, alleging a Johnson claim.[4]



         Hall has filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), seeking to reduce his sentence based on retroactive changes to the Sentencing Guidelines, specifically Amendment 782. He “bears the burden of demonstrating that a retroactive Amendment has actually lowered his guideline range.” United States v. Tellis, 748 F.3d 1305, 1308 (11th Cir. 2014)(citing United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013)).

         Section § 3582(c)(2) states:

The court may not modify a term of imprisonment once it has been imposed except that -
. . .
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), [5] upon motion of the defendant . . ., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2)(footnote added). In its policy statement, the Sentencing Commission has stated, “A reduction in the defendant's term of imprisonment is not consistent with this policy statement[, ] and therefore is not authorized under 18 U.S.C. 3582(c)(2)[, ] if - . . . An amendment listed in subsection (d)[6] does not have the effect of lowering the defendant's applicable guideline range.” U.S.S.G. 1B1.10 (a)(2)(B). Accordingly -

In determining whether, and to what extent, a reduction in the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (d) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.

Id. (b)(1)(emphasis added). Thus, for this court to be authorized to reduce Hall's sentence pursuant to § 3582(c)(2), it must first determine whether Amendment 782 had the effect of lowering his Sentencing Guidelines range. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000)(“In undertaking this first step, only the amended guideline is changed. All other guideline application decisions made during the original sentencing remain intact.”)(citing United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998)(citing U.S.S.G. § 1B1.10 (b), comment n.2))

         Applying the Sentencing Guidelines currently in effect, considering the changes in Chapter 2 (Offense Conduct) calculations in light of Amendment 782, the court finds Base Offense Level is 22; prior to the Amendments, the Base Offense Level was 24. The Amendment did not affect any other finding of the Report; specifically, the Amendment did not affect the calculation of Hall's career-offender enhanced sentence. United States v. Cockett, 655 Fed.Appx. 800, 801 (11th Cir. 2016)(“Amendment 782 - which is listed in § 1B1.10(d) - therefore may serve as the basis for a sentence reduction. Id. § 1B1.10(d).” However, §3582(c)(2) only authorizes a reduction to sentences that were ‘based on' sentencing ranges that were subsequently lowered. . . . [B]ecause the defendants . . . were sentenced as career offenders under § 4B1.1, they were ineligible for relief, since only their base offense levels, but not their guideline ranges, were impacted by the retroactive guideline amendment.” (citing United States v. Moore, 541 F.3d 1323, 1327-30 (11th Cir. 2008))).[7]

         The maximum statutory penalty under § 841(b)(1)(C) is 20 years; therefore, Hall's Guidelines Offense Level as a career offender is, and at the time of sentencing was, 32. U.S.S.G. § 4B1.1(b)(1). With a 3-level reduction for acceptance of responsibility, his offense level is, and at the time of sentencing was, 29. As a career offender, Hall's criminal history category is, and at the time of sentencing was, VI. Therefore, the ...

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