United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
DONALD
C. NUGENT JUDGE
This
matter comes before the Court upon Defendant, Richard
Stone's Motion to Reduce Sentence Under Section 404 of
the First Step Act of 2018. (ECF #527). The government filed
a Response in Opposition to the motion, and Defendant filed a
Reply. (ECF #528, 529). The Court held a status conference to
address the contested issue of whether this Court should
apply the holding from Apprendi v. New Jersey, 570
U.S. 99 (2013), when it considers the appropriateness of a
sentencing reduction under the First Step Act. Following that
status conference, both parties filed Supplemental briefing
in support of their position. (ECF #532, 533). The matter is
now fully ready for consideration.
Mr.
Stone was convicted at trial of one count of conspiracy to
possess with intent to distribute and to distribute cocaine
and/or cocaine base; one count of possessing a firearm after
a felony conviction; one count of making a false statement in
connection with acquiring a firearm; and, one count of
possessing with intent to distribute cocaine base. (ECF
#178). There is no evidence that would indicate that the jury
made a determination on the drug amount, but the Court found,
prior to sentencing, that he was responsible for more than 50
grams of cocaine base, and more than 5 kilograms of cocaine.
Based on this amount Mr. Stone would have been subject to a
statutory term often years to life in prison, had he not also
been subject to enhancement for having two prior felony drug
convictions. Because of his prior convictions, Mr.
Stone's statutory sentence increased to mandatory life
imprisonment. See, 21 U.S.C. §§ 841(b)(1)(A)
&851 (1997). Consequently, on November 24, 1997, Mr.
Stone was sentenced to life in prison on Counts 1 and 4, to
be served concurrently with a 120 month sentence on Count 2,
and a 60 month sentence of Count 3. Mr. Stone has currently
served almost twenty-two years of his sentence.
On
December 21, 2018, the First Step Act of 2018 was signed into
law. Section 404 of the Act provides that a court that
imposed a sentence for a covered offense may, on motion of
the defendant, impose a reduced sentence as if sections Two
and Three of the Fair Sentencing Act of 2010 were in effect
at the time the covered offense was committed. No. court
shall entertain such a motion, however, if the sentence was
previously imposed or reduced in accordance with sections Two
and Three of the Fair Sentencing Act, or if prior request
made under this section was denied after a complete review on
the merits. Reductions are not mandatory, but are left to the
discretion of the sentencing judge. See, Pub. L. No. 115-391,
Title IV, § 404, Dec. 21, 2018.
Both
parties agree that if the Fair Sentencing Act had been in
place at the time of Mr. Stone's original sentencing, the
mandatory sentencing ranges and terms of supervised release
that applied generally to Mr. Stone's offenses would have
been altered. Section Two of the Fair Sentencing Act of 2010
increased the threshold quantities that trigger different
statutory penalties under 21 U.S.C. §841 (b)(1).
Following the implementation of that Act, offenses involving
less than 28 grams of crack cocaine are subject to a
sentencing range of up to 20 years, with an enhancement to up
to 30 years for defendants with a prior felony drug
conviction. Defendants who were found to have offenses
involving between 28 and 280 grams of crack cocaine are
subject to a statutory sentencing range of 5 to 40 years,
with a possible enhancement of 10 years to life if the
defendant had a prior felony conviction. For offenses
involving 280 grams or more of crack cocaine, defendants are
subject to a statutory sentencing range of 10 years to life,
unless the defendant had a prior felony drug conviction, in
which case the range increased to twenty 20 years to life.
In this
case, the Presentence Report ("PSR") calculated
that Mr. Stone should be held responsible for 492 kilograms
of cocaine base. At sentencing, the Court accepted the
findings set forth in the PSR. The Court based Mr.
Stone's sentence on the applicable guideline range of
life in prison, which corresponded to his total offense level
of forty-three, and his criminal history category of VI.
The
Defendant argues, however, that when considering the
application of the First Step Act and the Fair Sentencing
Act, this Court is bound to apply the subsequent holdings of
the United States Supreme Court, specifically the holding
from Apprendi v. New Jersey. 530 U.S. 466 (2000)
Apprendi held that any fact that increases a
defendant's penalty, beyond the prescribed statutory
maximum, other than the fact of a prior conviction, must be
charged in the indictment, submitted to a jury, and proven
beyond a reasonable doubt as an element of the
crime.[1] Id. Courts have subsequently
applied Apprendi to require that a jury, not a judge
must make the determination of whether an offense involves a
sufficient quantity of drugs to reach various sentencing
thresholds. Later in 2013, the Supreme Court made clear that
in order to preserve a defendant's Sixth Amendment right
to a jury trial, any fact that increases the statutory
mandatory minimum sentence must be submitted to the jury as
an element of the offense charged. Alleyne v. United
States, 570 U.S. 99 (2013).
In
contrast, the government claims, that this Court is not
required to apply the Apprendi holding in its
consideration of Mr. Stone's request for a reduced
sentence. It argues that this is not a plenary re-sentencing,
and the Court should, therefore, consider the changes that
may have been affected by the applicable sections of the Fair
Sentencing Act, but should view those changes as if they were
being applied on the date of the original sentencing, and not
with the benefit of any other legislative or constitutional
developments that may have occurred since that time. If
Apprendi is not applied, the government contends that
Mr. Stone's term of imprisonment should not be reduced
under the Fair Sentencing Act, because his sentence was based
on the guideline range that corresponded to his total offense
level (43) and criminal history category (VI). That range has
not changed with the implementation of the First Step
Act.[2]
The government also argues that the mandatory statutory
minimum and maximum sentences applicable to the amount of
drugs attributed to Mr. Stone in the PSR, as adopted by the
Court, was not changed by the Fair Sentencing Act.
The
Supreme Court has explained, however, that when it recognizes
a constitutional rule, such as the one set forth in
Apprendi and Alleyne, it is not to be
treated as new rule created by the Court. Rather it is simply
a recognition of a right established by the Constitution that
has existed since the adoption of the Constitution. The
determination of retroactivity does not alter the existence
or "temporal scope of a newly announced right, but
[only] whether a violation of the right that occurred prior
to the announcement of the new rule will entitle a criminal
defendant" to any relief for the violation of that
right. Danforth v. Minnesota, 552 U.S. 264, 271
(2008). This is to say that allowing judges and not juries to
determine what drug quantities have been proven in connection
with a distribution offense has always been unconstitutional,
even at the time of Mr. Stone's original sentencing. The
First Step Act neither directs nor implies that the Court
should perpetuate the application of an unconstitutional
practice when determining a new sentence that complies with
the Act's directives, and many courts faced with the
issue have applied the Apprendi rule in First Step
Act re-sentencings. See, e.g., United States v.
Allen, 2019 WL 1877072 (D. Conn. Apr. 26, 2019);
United States v. Stanback, 2019 U.S. Dist. LEXIS
75413 (W.D. Va. May 2, 2019); United States v.
Simons, 2019 U.S. Dist. LEXIS 67964 (E.D.N.Y. Apr. 22,
2019); United States v. Pugh, 2019 U.S. Dist. LEXIS
49407 (N.D. Ohio Mar. 25, 2019).
In the
instant case, Count One of Mr. Stone's Superseding
Indictment charged him with conspiracy to distribute or
posses with intent to distribute cocaine base, but did not
mention any specific quantity of drugs involved in the
conspiracy. Count Four of the Superseding Indictment charged
that Mr. Stone "did knowingly possess with intent to
distribute approximately 342.44 grams of a mixture and
substance containing a detectable amount of cocaine base,
crack cocaine." (ECF #529-1, Ex. B). The jury
instructions quote this part of the Superseding Indictment,
but do not explicitly require the jury to find this or any
other amount in order to find Mr. Stone guilty of Count Four.
The quantity of drugs is not listed as an element to the
crime, and no further mention of any amount attributable to
Mr. Stone is mentioned in the portion of the jury
instructions that has been provided to the Court as part of
the record. (ECF #529-1). There is no evidence or even
assertion that the jury made a finding of any particular
quantity of drugs involved in the offence in its verdict, or
in an interrogatory. When drug quantity is not both charged
in the indictment and submitted to the jury as part
of the jury instructions the statutory maximum under
§841(b) must be determined without reference to a
specific drug quantity. U.S. v. Westmoreland, 240
F.3d 618, 632-33 (6th Cir. 2001); U.S. v.
Mouling, 557F.3d658, 665 (D.C. Cir. 2009); U.S. v.
Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000).
As the
jury instructions in Mr. Stone's case did not require the
jury to make a specific finding of any particular drug amount
in order to convict Mr. Stone on Counts One or Four of the
Superseding Indictment, this court will adopt the lowest drug
quantity category when considering Mr. Stone's new
sentence under the First Step Act. Offenses involving less
than 28 grams of crack cocaine are subject to a statutory
sentencing range of up to 20 years, with an enhancement to up
to 30 years for defendants with a prior felony drug
conviction. 21 U.S.C. §§ 841(b)(1)(C) & 851
(2018). At the time of sentencing, Mr. Stone had a prior
felony drug conviction. Therefore, his statutory maximum, for
the lower quantities applicable under Apprendi, is
30 years or 360 months, with six years of supervised release.
For the
above reasons, this Court GRANTS Mr. Stone's petition for
relief. (#527). Mr. Stone's sentences on Counts One and
Four are reduced to 360 months of imprisonment, to be
followed by six years of supervised release. All other
aspects of his original sentence remain intact.
IT IS
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