United States District Court, D. Connecticut
RULING DENYING DEFENDANT'S FIRST STEP ACT MOTION
BOND ARTERTON, U.S.D.J.
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.
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
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.
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,
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.)
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, )
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.)
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.)
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)).
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.
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.