United States District Court, S.D. Alabama, Southern Division
ORDER
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on defendant Steven Jones'
Motion for Reconsideration (doc. 436).
On
April 2, 2019, the undersigned entered an Order (doc. 433)
denying Jones' Motion for Sentence Reduction under the
First Step Act (doc. 429). The April 2 Order explained that
18 U.S.C. § 3582(c) does not empower a defendant to
relitigate drug quantity findings made at the original
sentencing hearing. Because Jones' First Step Act Motion
sought to do precisely that - namely, to have this Court
overturn, erase or reject the sentencing court's finding
that Jones was responsible for at least 75 kilograms of crack
cocaine - the Motion was denied.
Now,
Jones files a Motion to Reconsider in which he makes two
assignments of error with respect to the April 2 Order.
First, he argues that his First Step Act Motion was governed
not by 18 U.S.C. § 3582(c)(2), but by 18 U.S.C. §
3582(c)(1)(B). The Court agrees; in fact, Jones' First
Step Act Motion, like every other First Step Act motion that
has been referred to the undersigned, was processed,
considered and evaluated pursuant to §
3582(c)(1)(B).[1] No. aspect of the April 2 Order's
reasoning or result hinged on § 3582(c)(2); therefore,
reconsideration is unnecessary, inappropriate and unavailable
on this ground.
Second,
Jones unveils a brand-new argument (not presented in his
original First Step Act Motion) for why he contends he is
entitled to relief. Motions to reconsider are not properly
utilized to raise new, previously available
arguments;[2] nonetheless, in its discretion, the Court
will consider the argument on its merits. In particular,
Jones seizes on language from the superseding indictment to
insist that his case actually falls within the ambit of the
First Step Act. He observes that he was convicted of Count
One, which charged conspiracy to possess with intent to
distribute “more than sixteen (16) kilograms of cocaine
and of a mixture and substance containing a detectable amount
of cocaine which contains cocaine base, commonly known as
crack cocaine.” Jones' argument is that because the
superseding indictment did not “specify an amount of
crack cocaine …, application of the First Step Act
would effectively reduce Jones' statutory range to 0-20
years, ” regardless of the sentencing court's
relevant conduct findings holding him accountable for at
least 75 kilograms of crack cocaine. (Doc. 436, at
6.)[3]
His position, then, is that the 10-life statutory sentencing
range prescribed by 21 U.S.C. § 841(b)(1)(A), and
pursuant to which he was sentenced, is inapplicable here and
that his true statutory sentencing range was 0-20 years
pursuant to § 841(b)(1)(C), because no quantity of crack
cocaine was specified in the charging document.
Jones
is certainly correct that the First Step Act retroactively
applies certain reduced statutory penalties for crack cocaine
offenses under the Fair Sentencing Act of 2010 (the
“FSA”) to “covered offenses”
committed before August 3, 2010. In particular, Section
404(b) of the Act provides as follows: “A court that
imposed a sentence for a covered offense 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.” Id. Section 2 of the FSA increased
the quantity of crack cocaine that triggered mandatory
minimum penalties from 5 grams to 28 grams (for the 5 year
minimum, 40 year maximum), and from 50 grams to 280 grams
(for 10 year minimum, life maximum). The fundamental problem
with Jones' argument is twofold. First, as noted in
footnote 3, supra, Jones cannot discount, ignore, or
strike through the 16 kilograms of cocaine with which he was
charged in Count One, which is certainly enough to trigger
the 10-life statutory sentencing scheme pursuant to which he
was sentenced. Second, even if Jones' argument were
accepted at face value, it nonetheless founders because
Section 2 of the FSA did not change anything about
the relevant statutory minimum and maximum sentences for
offenses as to which no amount of crack cocaine was charged.
Under Jones' theory of “no specific quantity,
” the relevant statutory minimum and maximum sentences
he faced for Count One would be exactly the same in the
pre-FSA world as they were in the post-FSA world. Simply put,
nothing about the FSA would reduce the statutory minimum or
maximum sentence to which Jones was exposed; therefore,
retroactive application of Section 2 of the FSA cannot afford
him any sentencing relief some 25 years after the fact. As in
his original Motion, Jones' Motion for Reconsideration is
seeking to litigate sentencing matters as to which the First
Step Act and retroactive application of the FSA have no
bearing or effect.
For all
of the foregoing reasons, Jones' Motion for
Reconsideration (doc. 436) is denied.
---------
Notes:
[1] In arguing that the April 2 Order is
erroneous in this regard, Jones makes much of the fact that
the AO 247 Form on which the April 2 Order was entered bears
the title “Order Regarding Motion for Sentence
Reduction Pursuant to 18 U.S.C. § 3582(c)(2).”
This Court, like all other federal district courts, has been
specifically requested by the United States Bureau of Prisons
to utilize this AO 247 Form (which was originally devised to
set forth rulings on certain retroactive U.S. Sentencing
Guidelines amendments in recent years) to record decisions on
First Step Act Motions. However, the undersigned has always
deemed First Step Act Motions to be filed under 18 U.S.C.
§ 3582(c)(1)(B), which provides that a “court may
modify an imposed term of imprisonment to the extent
otherwise expressly determined by statute.”
Id. The reference to subsection (c)(2) in the
caption of the preprinted form had no bearing whatsoever on
the analysis or conclusions presented in the April 2 Order.
Jones cannot show otherwise.
[2] See, e.g., Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171
L.Ed.2d 570 (2008) (motions to reconsider “may not be
used to relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the
entry of judgment”) (citation omitted); Mays v.
United States Postal Service, 122 F.3d 43, 46
(11th Cir. 1997) (“a motion to reconsider
should not be used by the parties to set forth new theories
of law”).
[3] As a threshold matter, Jones is
incorrect in stating that Count One of the superseding
indictment charged him with only a detectable quantity of
crack cocaine; rather, on its face, the charging
document's language charged him with more than 16
kilograms of cocaine and crack cocaine. Moreover, Jones does
not dispute that Count One charged him with possessing with
intent to distribute more than 16 kilograms of cocaine, which
would give rise to the 10-life sentencing range under 21
U.S.C. § 841(b)(1)(A)(ii). Significantly, subsection
(b)(1)(A)(ii) applies to offenses involving “5
kilograms or more of a mixture or substance containing a
detectable amount of … cocaine.” Crack cocaine
is certainly such a mixture or substance. Again, Jones agrees
that he was charged and convicted of conspiring to possess
with intent to distribute more than 16 kilograms of cocaine
(which, by statutory definition, includes mixtures and
substances containing a detectable amount of cocaine, which
crack cocaine ...