United States v. Roman

          RULING DENYING DEFENDANT'S FIRST STEP ACT MOTION FOR RESENTENCING

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

         Defendant Milton Roman moves for relief under the First Step Act of 2018, seeking immediate release or resentencing. ([Doc. # 1772].) The Government opposes this motion on the grounds that Defendant is "ineligible for a reduced sentence because he was not sentenced for a 'covered offense' within the meaning of the First Step Act, because he admitted [to] conspiring to distribute 5 kilograms of powder cocaine." (Gov't Response to Def.'s First Step Act Motion [Doc. # 1793] at 2.) Although the Court concludes that Defendant committed a "covered offense" under the First Step Act, it nonetheless agrees with the Government that Defendant's sentence may not be reduced because he was charged with and pleaded guilty to a dual-object conspiracy involving powder cocaine and because his 21 U.S.C. § 851 enhancement remains in effect. The Court thus denies Defendant's First Step Act motion for resentencing for the reasons that follow.

         I. Background

         The following facts are drawn from Defendant's Presentence Report (PSR [Doc. # 1776- 2]), which the late Judge Peter C. Dorsey adopted at sentencing without Defendant's objection.

         On November 20, 2007, Defendant was charged with Count One, "Conspiracy to Distribute Cocaine and Cocaine Base," "contrary to the provisions of [21 U.S.C.] § 841(b)(1)(A)[]" and "in violation of [21 U.S.C. §] 846." (Superseding Indictment [Doc. # 1004] ¶¶ 1-3.) The Indictment specified that Defendant's chargeable conduct, as a member of a drug conspiracy, "involved 50 grams or more of a mixture and substance containing a detectable amount of cocaine base," and "5 kilograms or more of a mixture and substance containing a detectable amount of cocaine." (Id. at 2.) Each of these quantities met the thresholds specified in 21 U.S.C. § 841(b)(1)(A), and so they were governed by the same penalties.

         On December 4, 2007, the Government filed a 21 U.S.C. § 851 notice of the Defendant's prior convictions, which included possession of narcotics in violation of Conn. Gen. Stat. § 21a-279(a) and possession of a controlled substance in the third degree in violation of N.Y. Penal L. § 220.16(1). (Information to Establish Prior Conviction [Doc. # 1007] at 2). When the Government submits such a § 851 notice, it triggers a statutory enhancement under 21 U.S.C. § 841 that "increases the penalty that Courts must impose on a drug offender who has a previous conviction for a felony drug offense." United States v. Hardnett, 2019 WL 5445887, at *1 (E.D. Va. Oct. 24, 2019).^[1]

         On December 13, 2007, Defendant pleaded guilty to Count One at a proceeding held before Judge Dorsey. In his written plea agreement with the Government, Defendant specified that he "agree[d] to plead guilty to conspiring with the intent to distribute and to distribute fifty grams or more" of cocaine base ("crack") and "five kilograms or more" of cocaine ("powder"). (Plea Agreement [Doc. # 1022] at 1.) As to the penalties, the plea agreement set forth that Defendant faced a "mandatory minimum penalty of twenty years in prison" for these drug quantities, as the crack and powder cocaine each triggered an enhanced penalty under 21 U.S.C. § 841(b)(1) due to the § 851 notice of prior convictions. (Id. at 2.)

         During the plea colloquy, Judge Dorsey referred to both the crack and powder quantities of cocaine. Judge Dorsey asked if Defendant had "read Count One of the Superseding Indictment and underst[ood] that it constitutes a charge that you . . . engaged in a conspiracy . ., [that] involved 50 grams or more of cocaine base, and 5 kilograms or more of cocaine," to which Defendant responded, "Yes, sir." (Plea Transcript [Doc. # 1486] at 12, )

         As to how the dual-object conspiracy would be handled, Judge Dorsey explained that he would not differentiate between crack and powder, and that he would treat them "the same, and just on a cumulative basis, as far as the total amount of drugs is involved." (Id. at 5-6.)

         On February 17, 2010, Judge Dorsey imposed a sentence upon Defendant. (Judgment [Doc. # 1444].) The court determined that Defendant's Guidelines range was 360 months to life imprisonment, based on his total offense level of 41 and criminal history category of VI. (Amended Statement of Reasons [Doc. # 1776-6] at 1.) However, the court decided to vary downward to the extent allowed by statute and sentence Defendant to the mandatory minimum term of 240 months imprisonment, with ten years of supervised release. (See Id. at 3; Judgment at 1.) At the sentencing hearing, Judge Dorsey explained that he was issuing a sentence below the Guidelines range because Defendant "has a mental health problem with a diminished capacity," "has dependent[]" children, has experienced a "length of. . . detention [that] was more stressful than would be normally appropriate," and had an "upbringing [that] gave him far less of an ability to develop the character and strengths of personality that would have helped him to develop a sense of moral responsibility that might very well have alleviated some of the predisposition that got him into trouble with the conduct for which he stands convicted here." (Sentencing Transcript [Doc. # 1459] at 44-45.) Judge Dorsey also noted that "there is no legal authority to depart down below the 20-year mandatory minimum," "based on the fact that [21 U.S.C. §] 851, to the extent that it is legitimately invoked, sets that level." (Id. at 31.)^[2]

         Six months following Defendant's sentencing, on August 3, 2010, the Fair Sentencing Act, Pub. L. 111-220, 124 Stat. 2372, was enacted. Congress passed this law "[i]n response to substantial public opinion that the disparities in the statutory penalties imposed for offenses involving powder cocaine and crack cocaine were fundamentally unfair." United States v. Rose, 379 F.Supp.3d 223, 226 (S.D.N.Y. 2019). The Fair Sentencing Act reduced those "disparities by increasing the drug quantities triggering mandatory minimums for crack offenses 'from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum.'" Id. (quoting Dorsey v. United States, 567 U.S. 260, 269 (2012)).

         In 2018, Congress gave retroactive effect to the Fair Sentencing Act through Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.

         On April 11, 2019, Defendant moved for immediate release or resentencing pursuant to the First Step Act. In support of his motion, Defendant included his reentry plan progress report, which indicated that he had been disciplined only twice during a 13-year period of imprisonment and that he "understood] the importance of maintain[ing] clear conduct" as he had "not had an incident report since 2010." (Summary Reentry Plan Progress Report [Doc. # 1787-1] at 3.) The progress report also noted that Defendant had completed considerable academic programming and that he was participating in an electrical apprenticeship. (Id.)

         II. ...