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United States v. Rhone

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

December 11, 2019

UNITED STATES OF AMERICA,
v.
JAMES ARTHUR RHONE, Defendant.

          ORDER

          KRISTI K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the Court on Defendant James Arthur Rhone's Motion for Sentence Reduction pursuant to the First Step Act of 2018, the United States' response, and Rhone's reply (docs. 180, 183, 186). Upon consideration, and for the reasons set forth herein, the motion is GRANTED and Rhone's term of imprisonment is reduced to time served.

         A. Background

         In June 1997, Defendant Rhone and co-defendant Dwight W. Clark were charged in a seven-count superseding indictment for offenses related to distribution of crack cocaine and powder cocaine. Rhone was charged with conspiracy to possess with intent to distribute 50 grams of crack cocaine and more than 10 kilograms of powder cocaine (Count One), possession with intent to distribute one ounce of crack cocaine (Count Two), possession with intent to distribute two ounces of crack cocaine (Count Three), possession with intent to distribute more than 50 grams of crack cocaine (Count Four), possession with intent to distribute more than 27 ounces of cocaine (Count Five), and possession with intent to distribute a quarter kilogram of cocaine (Count Six). Count Four and Count Seven, the forfeiture count, were dismissed on the United States' motion.

         Their first trial was a mistrial. Relevant to this motion, the jury convicted Rhone of Counts One, Two, Three, Five and Six at their second trial in October 1997. At sentencing, the Court determined that Rhone had been involved with the possession and distribution of at least 12 kilograms of crack cocaine and 88 kilograms of powder cocaine (doc. 187, p. 13, 14, 27). At that time, crack cocaine in excess of 1.5 kilograms established a base offense level of 38, the highest base offense level under the Sentencing Guidelines. U.S.S.G. § 2D1.1 (Nov. 1, 1997) (doc. 187, p. 14).[1]

         Rhone's total offense level was 43[2] and with a criminal history category of 1, his then mandatory sentencing guidelines range was life for Counts One and Three, 480 months for Counts Two and Five, and 240 months for Count Six (doc. 187, p. 27). Rhone was sentenced to life imprisonment as to Counts One and Three, 480 months concurrent as to Counts Two and Five, and 240 months concurrent as to Count Six (doc. 187, p. 23).

         Rhone's convictions and sentence were affirmed on appeal (doc. 120). His motion to vacate pursuant to 28 U.S.C. § 2255 was denied (doc. 136). The denial was affirmed on appeal (doc. 140).

         In 2012, Rhone moved to reduce his sentence based on Amendment 750 to the U.S. Sentencing Guidelines. The motion was denied (doc. 160). In 2015, Rhone moved to reduce his sentence based on Amendment 782 to the Guidelines (doc. 173). Rhone's life sentence as to Counts One and Three and his 480 months sentence as to Counts Two and Five were reduced to 324 months, concurrent. His sentence as to Count 6 remained 240 months, concurrent. Rhone's estimated release date is now March 27, 2021.

         B. Analysis

         Rhone moves for a reduction of sentence pursuant to Section 404 of the First Step Act. The Court's authority to apply the First Step Act is found in 18 U.S.C. § 3582(c)(1)(B), which, in relevant part, provides: ‘the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute....” 18 U.S.C. § 3582(c)(1)(B).[3] The First Step Act allows the district 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” had been “in effect at the time the covered offense was committed.” First Step Act of 2018, 115 Pub. L. 391, § 404(b), 132 Stat. 5194 (enacted Dec. 21, 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, ” that was committed before August 3, 2010. Id. at § 404(a).

         The Fair Sentencing Act changed the quantity of crack cocaine necessary to trigger certain statutory mandatory minimum and maximum sentences. Section 2 amended 21 U.S.C. § 841(b)(1)(A)(iii) to replace the 50 grams or more threshold with 280 grams or more and also amended 21 U.S.C. § 841(b)(1)(B)(iii) to replace the 5 grams or more threshold with 28 grams or more.

         Relevant to Rhone's motion, in Counts One and Three, he was indicted for offenses involving at least 50 grams of crack cocaine. At that time, his statutory mandatory sentence was ten years to life. If the Fair Sentencing Act is applied “as if” it had been in effect at sentencing, with no prior felony drug convictions, his statutory mandatory sentence would be five to forty years.

         The United States argues that Rhone's motion should be denied because he is not eligible for a reduction. With respect to eligibility, the United States relies on the decision in United States v. Means, wherein a panel of the Eleventh Circuit used the five kilograms of cocaine attributed to Means as relevant conduct to find that he was not eligible for consideration under the First Step Act. - - - Fed.Appx. - - -, 2019 WL 4302941 (11th Cir. Sept. 11, 2019) (“The First Step Act's changes to the triggering quantities of cocaine for the imposition of the mandatory sentencing scheme under § 841 do not impact Means's sentence because he was attributed with over five kilograms of cocaine, far in excess of the new 280-gram triggering amount.”) Id. at * 2. Parsing Section 404(a) of the First Step Act, the United States argues that because Rhone was held accountable for more than 1.5 kilograms of crack cocaine, his mandatory sentencing scheme is likewise not impacted, and therefore, he is not eligible for a reduction. (Doc. 183) The United States asks the Court to revisit its prior determinations that the amount of crack cocaine charged in the Indictment determines whether a defendant is eligible for relief.

         Rhone responds that the Means decision may be distinguished from the case before the Court and that the reasoning was flawed. Rhone argues that Means was proceeding pro se and erroneously relied upon 18 U.S.C. § 3582(c)(2) (and consequently so did the Eleventh Circuit), instead of 18 U.S.C. § 3582(c)(1)(B).[4] Rhone also argues that Means made other procedural and substantive briefing errors, which resulted in no adversarial challenge to eligibility, and consequently the adoption of the United ...


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