United States v. Benjamin

          ORDER GRANTING DEFENDANT'S MOTION FOR RELIEF UNDER FIRST STEP ACT

          JANET BOND ARTERTON, U.S.D.J.

         Defendant Clayton Benjamin moves for "immediate release, or in the alternative, to schedule a resentencing hearing, pursuant to the First Step Act of 2018" ("FSA"). (Mot. for FSA Relief [Doc. #391].) The Government opposes. ([Doc. # 394].)

         In summary, the Court concludes that Defendant was convicted of violating 21 U.S.C. § 841(b)(1)(B), and because the Fair Sentencing Act of 2010 modified the statutory penalty for violations of that statute, Mr. Benjamin committed a "covered offense" and is eligible for relief under the FSA. While the parties debate the availability of a "plenary" resentencing proceeding, even in a limited resentencing, the Court must use the 2018 Guidelines Manual to calculate the advisory range currently applicable to Defendant in order to exercise discretion in determining what reduction in sentence, if any, he should be granted. That determination necessarily requires calculation of Defendant's total offense level, which depends in part upon whether he is subject to the career offender enhancement of § 4B1.1. Because Defendant's prior convictions under Conn. Gen. Stat. § 21a-277(a) do not qualify as "controlled substance offenses" for purposes of the Guidelines' career offender enhancement, and in keeping with the purpose of the Second Circuit's "one book rule" and to avoid perpetuating an incorrect interpretation of the Sentencing Guidelines, Defendant's advisory guidelines range under the 2018 Guidelines Manual and its interpretation by the courts does not include the Guidelines' career offender enhancement. Because he has now been incarcerated far longer than any non-career offender Guidelines range applicable to his conduct and count of conviction, regardless of whether that range is calculated using cocaine base or powder cocaine, Defendant's previously imposed sentence of 188 months' imprisonment on Count One of the Indictment is reduced to time served.

         I. Background

         In March 2010, Defendant pleaded guilty to Count One of the Indictment, which charged him with conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). (Plea Agreement [Doc. # 130] at 1; Indictment [Doc. # 1] at ¶¶ 1, 3.) Before Defendant entered that plea, the Government filed a notice of Defendant's prior convictions pursuant to 21 U.S.C. § 851. (Notice Charging Prior Offense [Doc. #114].) That Notice cited five prior convictions for violations of Connecticut drug laws: four convictions for Sale of Narcotics, in violation of Conn. Gen. Stat. § 21a-277(a), and one conviction for Possession of Narcotics, in violation of Conn. Gen. Stat. § 21a-279(a). (Id. at 1-2.) "Therefore, the offense charged in Count One of the Indictment carrie[d] a mandatory minimum penalty of ten years' imprisonment, a maximum penalty of life imprisonment... [and] a term of supervised release of at least eight years and as much as life." (Plea Agreement at 2.)

         Defendant "agree[d] and acknowledge[d] that the quantity involved of the mixture and substance containing a detectable amount of cocaine base was in excess of 35 grams, but not more than 50 grams." (Plea Agreement at 3.) In the Plea Agreement, Defendant and the Government "agree[d] that... the defendant's base level offense would be 28" based on the quantity of cocaine base at issue, resulting in a "total offense level of 25" based on Defendant's acceptance of responsibility. (Id. at 4.) The parties also "agree[d] that the defendant falls within Criminal History Category VI." (Id.) An offense level of 25 with a Criminal History Category VI produced an advisory Sentencing Guidelines range of 110 to 137 months of imprisonment, but the bottom of that range was increased to 120 months based on the applicable mandatory minimum term of imprisonment often years. (Id.)

         The Plea Agreement also noted that "[i]t also appears, however, that the defendant may qualify as a career offender, pursuant to § 4Bl.l(a) of the Sentencing Guidelines." (Id.) If Defendant "does qualify as a Career Offender," his total offense level would be 34. (Id.) Combined with a Criminal History Category VI, that offense level produced a Sentencing Guidelines range of 262 to 327 months of imprisonment. (Id.)

         Defendant was sentenced to a term of imprisonment of 188 months and an eight-year term of supervised release. (Judgment [Doc. # 229].) He was sentenced "using the November '09 guidelines." (Tr. of Sentencing Hearing [Doc. # 243] at 5:9-10.) The 188-month sentence was "a departure under U.S.S.G. § 5K2.0" based on "the absence of empirical basis for the crack-powder cocaine guideline range disparity, as set out in Kimbrough v. United States....." (Judgment.) The Court found that "a departure reflecting a 1:1 ratio is warranted and consistent with 18 U.S.C. § 3553(b)." (Id.) The sentence of 188 months' imprisonment fell within what would have been the applicable career offender Guidelines range of 188 to 235 months "[w]ere [Defendant] charged with powder or were crack and powder treated equally." (Tr. of Sentencing Hr. at 7:17-19.) At sentencing, the Court noted that "the record . . . lacks, other than the plumber's apprentice program" of which Defendant had then completed approximately 1, 700 of the required 8, 000 hours, "a serious effort to change course." (Id. at 36:24-37:1.) The Court determined that Mr. Benjamin's "risk of recidivism" was "high" or "virtually certain unless there is some major life change which overcomes" his prior challenges. (Id. at 37:14-18.) The Court concluded that a "significant period of incarceration is needed to provide the education or vocational training that will produce a person who comes out with a whole other set of skills and a whole commitment to using those skills in a law-abiding and productive way." (Id. at 38:4-9.) The Court described Mr. Benjamin's sentence as long enough to "give[] you a chance to complete a full apprenticeship, to have a full set of tools with which you can go out and get a real job that pays real money so you can be a real law-abiding citizen." (Id. at 41:3-6.)

         Mr. Benjamin has now served approximately 120 months of his 188-month sentence. Defendant's counsel represents that during that time, Defendant has completed the 8, 000-hour plumbing apprenticeship program. (Mem. Supp. FSA Mot. [Doc. # 393] at 9.) The "Bureau of Prisons has been unable to confirm that Mr. Benjamin participated or completed in the apprenticeship program, although a BOP employee wrote in an email to Mr. Benjamin's BOP counsellor, 'I do remember Inmate Benjamin being part of the plumbing apprenticeship program.'" (Reply Supp. FSA Mot. [Doc. # 395] at 12.) During the current period of incarceration, Mr. Benjamin has worked for approximately 54 months as a plumber at FCI Gilmer. (Ex. C (Work Detail) to Reply [Doc. # 395-3].)

         II. Discussion

         A. Eligibility for Relief Under the First Step Act

         Section 404 of the First Step Act of 2018 limits relief under that Act to defendants who committed a "covered offense," which "means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2371), that was committed before August 3, 2010." First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 2 of the Fair Sentencing Act of 2010 modified the statutory penalty for violations of 21 U.S.C. § 841(b)(1)(B), under which Mr. Benjamin was convicted in this case. See Pub L, No. 111-220, 124 Stat. 2371 (2010). "Section 841(b)(1)(B)(iii) now provides for a sentencing range of 5 to 40 years if the offense involved '28 grams or more' but less than 280 grams of crack cocaine." (Mem. Supp. FSA Mot. at 11.)

         The Government argues nonetheless that Defendant is "statutorily ineligible for a sentencing reduction under Section 404 of the First Step Act" because his violation "is not a 'covered offense' under the First Step Act" given that his "sentencing exposure under the First Step Act is identical to what he faced at the time of his original sentencing, based on the quantity of drugs involved in his violation." (Gov't Opp. to FSA Mot. [Doc. # 394] at 1.) The Government's argument is based on its interpretation of "violation" in the FSA's definition of "covered offense" as referring "more broadly to the actual offense conduct, to the extent that can be discerned from the record." (Id. at 7.) Defendant argues that "violation" refers specifically to "the statutory provision [the defendant] pled guilty to (not the drug quantity determined by the Court at sentencing or stipulated to by the parties in a plea agreement)." (Mem. Supp. FSA Mot. at 12.)

         A "growing number of courts have concluded [that] 'it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.'" United States v. Allen,384 F.Supp.3d 238, 241 (D. Conn. 2019) (quoting United States v. Martin, 2019 WL 1556617, at *3 (E.D.N.Y. Apr. 10, 2019)); see, e.g., United States v. Davis, 2019 WL 1054554, at *3 (W.D.N.Y. Mar. 6, 2019) ("Under the plain language of the [FSA], whether an offense is a 'covered offense' is determined by examining the statute that the defendant violated," not by the offense conduct.).^[1] And "[t]o the extent the statutory text is ambiguous, the ambiguity is dispelled by considering the purpose underlying the First Step Act," "further[ing] the Fair Sentencing Act's objective of . mitigating the effects of a sentencing scheme that had a racially disparate impact." Allen, 384 F.Supp.3d at 242 (citation omitted). "Given this remedial purpose, the First Step Act should be construed to provide courts with discretion to reduce a sentence when the statute the defendant violated has been modified by the Fair Sentencing Act to provide less severe penalties." Id. (citation omitted). This Court agrees with the majority of district courts to consider this issue and concludes ...