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United States v. Thomas

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

June 5, 2019

UNITED STATES OF AMERICA,
v.
WILLIE DEANGELO THOMAS, Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This action is before the Court on Defendant Willie DeAngelo Thomas' Motion for Imposition of a Reduced Sentence pursuant to the First Step Act, the United States' response, Thomas' reply, the United States' surreply, and Thomas' response (docs. 49, 52, 54, 69, 61). Upon consideration, and for the reasons set forth herein, the Motion is GRANTED.

         In May of 2009, Thomas was indicted for conspiracy to possess with intent to distribute “more than 5 grams of” crack cocaine (Count One), possession with intent to distribute “38 grams” of crack cocaine (Count Two), possession of a firearm during and in relation to a drug trafficking crime (Count Three) and possession of a firearm by a convicted felon (Count Four) (doc. 1). Thomas pled guilty to Count One and Count Three (doc. 33, Plea Agreement; doc. 34, Order on Guilty Plea). In the factual resume, Thomas agreed that the United States could prove his involvement with 37.10 grams of crack cocaine (doc. 33, p. 18).

         Prior to sentencing, the United States filed two notices of enhancement information, which showed that Thomas had prior convictions for felony drug offenses (docs. 17, 32). At that time, with prior felony drug offenses, Thomas' conviction for more than 5 grams of cocaine resulted in a mandatory minimum sentence of 120 months with a maximum sentence of life. 21 U.S.C. § 841(b)(1)(B) (2010). At sentencing, his total offense level was calculated as 27 based on his admission to 37.10 grams of crack cocaine. With a criminal history category of IV, his guideline range was 100 to 125 months as to Count One. However, since the mandatory minimum sentence was 120 months, his guideline range became 120 to 125 months. He was also subject to the 60-month consecutive sentence for Count Three. Thomas was sentenced on April 2, 2010 to a total term of 180 months, which consisted of 120 months for Count One and 60 months, consecutive, for Count Two (doc 42). The remaining Counts were dismissed (Id.)

         Thomas has now moved for a reduced sentence under § 404 of the First Step Act of 2018 (doc. 49).[1] In relevant part, the Act sets forth as follows:

(b) Defendants Previously Sentenced. A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, 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.

Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5221.

         The Fair Sentencing Act changed the quantity of crack cocaine necessary to apply certain statutory mandatory minimum and maximum sentences. Section 2 of the Act amended 21 U.S.C. § 841(b)(1)(A) & (B) and replaced the 5 grams or more threshold with 28 grams or more and the 50 grams or more threshold with 280 grams or more. Additionally, and relevant to Thomas's motion, both prior to and after the Fair Sentencing Act, § 841(b)(1)(C) provided that in a case involving a quantity of a Schedule II controlled substance, such as crack cocaine, that did not fall within § 841(b)(1)(A) or (B), the defendant “shall be sentenced to a term of imprisonment of not more than 20 years” and if “any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years …” 21 U.S.C. § 841(b)(1)(C).

         Thomas argues that in “applying the Fair Sentencing Act the applicable statutory penalty range is determined by the amount of drugs charged in the offense to which [he] entered his guilty plea” - 5 grams or more (doc. 54, p. 3). Since 5 grams or more is less than 28 grams, his mandatory minimum sentence is now controlled by 21 U.S.C. § 841(b)(1)(C). Thus, he argues that applying the relevant section of the Fair Sentencing Act “as if” it had been in effect at the time of his sentencing reduces his statutory penalty range as to Count One, with the enhancement, from the mandatory minimum of 120 months to life to 0 to 30 years. Thomas argues that because he is no longer subject to a statutory mandatory minimum sentence there is no impediment to imposing a reduced sentence. Thomas calculates his revised guideline ranges as 70 to 87 months. Thomas argues that if sentenced to the low end of 70 months and including the 60 month consecutive sentence his total sentence would be 130 months. Considering that he is due “good time” credits and has served 117 months in custody, he seeks immediate release.

         The United States argues that the Court should look to the plea agreement to determine what Thomas' penalty would be if he had been sentenced under the Fair Sentencing Act. The United States argues that because Thomas admitted in his plea agreement that he was accountable for 37.1 grams of crack cocaine, an amount which exceeds 28 grams, § 841(b)(1)(B) still applies and with his prior drug felony offenses, his statutory minimum sentence remains at 120 months (doc. 52).

         The Court disagrees for two reasons. First, when determining the statutory penalty for an offense the Court looks to the offense charged in the indictment, not the quantity to which the defendant later agrees in a factual resume. Second, the factual resume is agreed to by the defendant to establish a factual basis for the plea and often to resolve sentencing guideline issues. The factual resume regularly includes an agreed amount of controlled substance for which a defendant is responsible for purposes of relevant conduct, i.e., for purposes of determining the guidelines. The factual resume cannot amend the indictment.

         As succinctly stated in United States v. Pierre, __ F.Supp.3d __, __, Cr. No. 07-003 WES, 2019 WL 1495123 (D.R.I. Apr. 5, 2019):

The Court holds that, in determining whether a defendant is eligible for relief under § 404 of the First Step Act, the sentencing court should look to whether the offense of conviction was modified by the Fair Sentencing Act of 2010 to determine eligibility; it should refrain from delving into the particulars of the record to determine how this specific defendant committed his or her offense of conviction, and how those facts would have hypothetically affected the charges brought against the defendant under the new statutory regime.
The Government's approach, while reasonable, is problematic in several ways. First, it effectively requires the Court to employ a prosecutor-friendly “way-back machine” to conjure how the charge, plea, and sentencing would have ...

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