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United States v. Richardson

United States District Court, D. Connecticut

October 3, 2019

UNITED STATES OF AMERICA,
v.
KENNETH RICHARDSON, Defendant.

          RULING AND ORDER ON FIRST STEP ACT MOTION FOR IMMEDIATE RELEASE OR RESENTENCING

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Kenneth Richardson (“Defendant”) has moved for his immediate release or resentencing under Section 404 of the recently-enacted First Step Act. See Amended First Step Act Motion for Immediate Release or Resentencing, dated Apr. 16, 2019 (“Def.'s Mot.”), ECF No. 2494; see also Memorandum in Support of Def.'s Mot., dated May 21, 2019 (“Def.'s Mem.”), ECF No. 2504. He is currently serving a life sentence.

         The United States of America (the “Government”) has opposed Mr. Richardson's motion. Government's Opposition to Def.'s Mot., dated Jun. 18, 2019 (“Gov't Opp.”), ECF No. 2523.

         On September 6, 2019, the Court held a hearing on the motion. Minute Entry, dated Sept. 6, 2019, ECF No. 2575.

         For the reasons explained below, the Court (1) GRANTS the motion; (2) ORDERS that Mr. Richardson's sentence of incarceration be REDUCED to TIME SERVED; (3) IMPOSES a term of supervised release of FIVE (5) YEARS. The Bureau of Prisons is authorized to delay execution of this Order for up to ten (10) days after its issuance so that the Bureau may make necessary arrangements related to Mr. Richardson's release. The Bureau of Prisons is directed to proceed as expeditiously as possible so as to avoid any unnecessary delay.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Richardson has been in federal custody for the last nineteen years because of his role in “an extensive drug trafficking enterprise in Bridgeport, Connecticut, ” in the P.T. Barnum Housing Project in the late 1990s. United States v. Jones, 294 Fed.Appx. 624, 626 (2d Cir. 2008) (summary order). The factual background of that enterprise has been described in multiple opinions rendered in this District and by the Second Circuit. See, e.g., United States v. Luke Jones, 482 F.3d 60, 63-66 (2d Cir. 2006) (detailing evidence as to the conspiracy introduced at trial against Luke Jones, in light most favorable to the Government); Lyle Jones v. United States, No. 3:12-cv-601 (EBB), 2014 WL 6871198, at *4-5 (D. Conn. Dec. 5, 2014) (detailing evidence as to the enterprise introduced at trial against Lyle Jones).

         On November 16, 1999, a federal grand jury returned a sealed, multi-count indictment against Luke Jones, Lonnie Jones, and Lance T. Jones. Sealed Indictment, dated Nov. 16, 1999, ECF No. 1.

         On February 3, 2000, a federal grand jury returned a Superseding Indictment against the three originally-named defendants, Mr. Richardson, and ten other alleged members of the drug trafficking enterprise. Superseding Indictment, dated Feb. 3, 2000, ECF No. 36. The superseding indictment charged Mr. Richardson with knowingly and intentionally conspiring to possess with intent to distribute and to distribute heroin, cocaine, and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, from January 1997 to December 1999 (Count One). Id.

         On May 23, 2000, Mr. Richardson was arraigned before Magistrate Judge Holly B. Fitzsimmons on the Superseding Indictment and pleaded not guilty to the drug conspiracy charge. See Docket Entries, dated May 23, 2000. Judge Fitzsimmons ordered Mr. Richardson to be detained pending trial. See id.

         On November 7, 2000, a federal grand jury returned a Second Superseding Indictment against Mr. Richardson and the other alleged members of the drug trafficking enterprise. Second Superseding Indictment, dated Nov. 7, 2000, ECF No. 455.

         That same day, Mr. Richardson was arraigned before Magistrate Judge Fitzsimmons on the Second Superseding Indictment and pleaded not guilty to the drug conspiracy charge. Minute Entries, dated Nov. 7, 2000.

         On December 4, 2000, after a thirteen-day trial before United States District Judge Alan H. Nevas, a jury convicted Mr. Richardson of conspiracy to possess and distribute heroin, cocaine, and cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Verdict Form, dated Dec. 4, 2000, at 4. The jury found, as to quantity, that Mr. Richardson's agreement to possess with intent to distribute narcotics involved 1, 000 grams or more of a mixture or substance containing heroin, 5, 000 grams or more of a mixture or substance containing cocaine, and 50 grams or more of a mixture or substance containing cocaine base. See Id. at 4-6.

         On March 30, 2001, Judge Nevas sentenced Mr. Richardson to a term of life imprisonment for conspiring to possess heroin, cocaine, and cocaine base as well as distribution of the same. Judgment, dated Mar. 30, 2001, ECF No. 639; see also Transcript of Proceedings, dated Mar. 30, 2001 (“Sentencing Tr.”), ECF No. 683.

         Mr. Richardson subsequently appealed his conspiracy conviction and sentence on a number of grounds-all of which were rejected by the Second Circuit on October 5, 2004. See United States v. Jones, 111 Fed.Appx. 52, 56-57 (2d Cir. 2004) (rejecting juror disqualification, Eighth Amendment, and ineffective assistance of counsel challenges to conviction and sentence); see also United States v. Lewis, 386 F.3d 475, 123 (2d Cir. 2004). But the Second Circuit decided to withhold issuing a mandate until the United States Supreme Court had heard and decided United States v. Booker and United States v. Fanfan, Nos. 04-104 & 04-105, 543 U.S. 220 (2005), both of which were set to be argued in the fall of 2004. See Lewis, 386 F.3d at 123- 24.

         On January 12, 2005, the Supreme Court decided Booker and Fanfan, holding, in relevant part, that the “provision of the federal sentencing statute that makes the [United States Sentencing] Guidelines mandatory” was incompatible with the Sixth Amendment and must be severed-thereby rendering the guidelines “effectively advisory.” Booker, 543 U.S. at 245.

         On February 2, 2005, the Second Circuit decided United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), establishing a process for implementing Booker by providing that in cases “in which a sentencing judge, prior to Booker/Fanfan, has committed a procedural error in imposing a sentence, a remand to afford the judge an opportunity to determine whether the original sentence would have been nontrivially different under the post-Booker/Fanfan regime will normally be necessary to determine whether the error is harmless, or, if not properly preserved, is available for review under plain error analysis.” Crosby, 397 F.3d at 119.

         On February 16, 2005, the Government moved for summary affirmance of Mr. Richardson's “sentence to a mandatory minimum term of imprisonment” notwithstanding Crosby. See Docket Entry, No. 01-1242 (CON) (2d Cir. Feb. 16, 2005).

         On March 4, 2005, Mr. Richardson moved, pro se, for appointment of counsel and remand under Crosby. See Docket Entries, No. 01-1215 (L) (2d Cir. Mar. 7, 2005) (the motion was not received and entered on the docket until March 7, 2005) See id.

         On March 7, 2005, the Second Circuit granted the Government's motion for summary affirmance of Mr. Richardson's sentence. Order, No. 01-1242 (2d Cir. Mar. 7, 2005).

         On March 23, 2005, the Second Circuit granted Mr. Richardson's motions, appointing counsel for the “limited purpose of filing a letter brief, which is to be single-spaced and no more than five pages, on the issue of whether the sentence should be remanded under [Booker] and [Crosby].” Order, Nos. 01-1215 (L) & 01-1242 (2d Cir. Mar. 23, 2005).

         On April 27, 2005, Mr. Richardson filed a letter brief, in which his court-appointed counsel argued that a remand should issue because Judge Nevas had not followed the correct procedure under 21 U.S.C. § 851(b), in that he failed to conduct any inquiry into whether Mr. Richardson has affirmed or denied the Government's allegations in its career offender notice filed under 21 U.S.C. § 851. See Letter Brief, No. 01-1215 (L) (2d Cir. Apr. 27, 2005). Counsel noted, however, that Mr. Richardson's challenge to the basis for those convictions “entails circumstances that are beyond the scope of the present Record on Appeal and will require further investigation and presentation of facts in the district court.” Id. at 4 n.3. Counsel explained that conducting such an investigation went beyond the scope of his limited appointment. Id.

         On August 16, 2005, the Second Circuit denied Mr. Richardson's motion to reconsider its summary affirmance of his sentence because (1) Mr. Richardson had failed to raise his § 851(b) objection at sentencing, and it was therefore reviewable only for plain error under Federal Rule of Criminal Procedure 52(b); and (2) Mr. Richardson could not demonstrate plain error because he has “not adduced any evidence suggesting that he can dispute his prior convictions” and therefore could not show that Judge Nevas's error affected his substantial rights. Order, Nos. 01-1215 (L) & 01-1242 (CON) (2d Cir. Aug. 16, 2005).

         On August 7, 2006, Mr. Richardson petitioned, pro se, to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, renewing the procedural error arguments made with respect to the Government's career offender notice. Motion to Vacate, Set Aside or Correct Sentence (2255), dated Jan. 27, 2010, No. 3:10-cv-130 (PCD), ECF No. 1.

         On March 21, 2007, the judge assigned to the petition, United States District Judge Ellen Bree Burns, denied Mr. Richardson's petition, finding, inter alia, that his 1997 conviction was properly construed as a prior conviction for purposes of 21 U.S.C. § 841(b)(1)(A). See Ruling, dated Mar. 21, 2007, No. 3:16-cv-1227 (EBB), ECF No. 18 at 4-7. Judge Burns declined to issue a certificate of appealability, finding that Mr. Richardson had not demonstrated the denial of a constitutional right. Id. at 12.

         Mr. Richardson appealed, pro se, the denial of a certificate of appealability. Notice of Appeal, dated July 27, 2007, No. 3:16-cv-1227 (EBB), ECF No. 21. On February 25, 2009, the Second Circuit denied that appeal. Mandate, dated Feb. 25, 2009, No. 3:16-cv-1227 (EBB), ECF No. 24.

         On June 19, 2008, Mr. Richardson moved, pro se, for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), arguing that he was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission through Amendment 706 to the Sentencing Guidelines. Motion to Reduce Sentence, dated Jun. 19, 2008, ECF No. 2249.

         On November 25, 2009, Judge Burns denied Mr. Richardson's motion for a reduction of sentence, finding that he was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) because “[e]ven if Richardson's guideline sentencing range was lowered by virtue of Amendment 706, Richardson would not be eligible for relief under 18 U.S.C. § 3582(c)(2) because the entire term of his sentence represents a statutory mandatory minimum.” United States v. Richardson, No. 99-cr-264 (EBB), 2009 WL 10711651, at *2 (D. Conn. Nov. 25, 2009).

         Mr. Richardson appealed Judge Burns's decision; the Second Circuit denied his appeal on November 30, 2010. United States v. Jones, 408 Fed.Appx. 416, 419-20 (2d Cir. 2010).

         On December 17, 2010, Mr. Richardson moved, pro se, for a reduction of his sentence under 18 U.S.C. § 3582(c)(1)(B), arguing that his sentence “was imposed in violation of law because: (1) the sentencing court did not comply with the procedural requirements of § 851; (2) the government did not adequately prove that his prior convictions qualified under § 851; (3) one of his prior convictions did not qualify as a prior conviction for purposes of an enhancement under § 851; and (4) the Second Circuit's decision in Savage v. United States, 542 F.3d 959 (2d Cir. 2008) should be applied retroactively to his sentence.” Motion to Reduce Sentence, dated Dec. 17, 2010, ECF No. 2341.

         On February 10, 2012, Judge Burns denied that motion in light of the Second Circuit's 2010 holding. United States v. Richardson, No. 99-cr-264 (EBB), 2012 WL 13128202, at *2 (D. Conn. Feb. 10, 2012) (citing Jones, 408 Fed.Appx. at 419-20).

         Mr. Richardson appealed Judge Burns's decision; the Second Circuit denied his appeal on October 26, 2012. See Mandate, filed Feb. 20, 2013, ECF No. 2397.

         On December 21, 2018, Congress passed, and the President signed into law, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (hereafter, the “First Step Act”) which “made retroactive some provisions of the Fair Sentencing Act [of 2010, Pub. L. 111-220; 124 Stat. 2372].” United States v. Medina, No. 3:05-cr-58 (SRU), 2019 WL 3769598, at *2 (D. Conn. July 17, 2019).

         On February 13, 2019, Mr. Richardson moved, pro se, for his immediate release or resentencing under Section 404 of the First Step Act. See First Step Act Motion for Immediate ...


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