United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice District Judge.
REPORT AND RECOMMENDATIONS ON MOTION FOR REDUCE
SENTENCE UNDER THE FIRST STEP ACT
Michael R. Merz United States Magistrate Judge
criminal case is before the Court on Defendant Keith Dewitt,
Sr.'s, Motion to Reduce Sentence Pursuant to the First
Step Act of 2018 (ECF No. 538). Dewitt is represented on the
Motion by Assistant Federal Defender Kevin Schad (ECF No.
Motion was filed March 27, 2019. Under S.D. Ohio Civ.R. 7.2,
a memorandum in opposition was due to be filed by April 17,
2019. When none was filed, the Magistrate Judge recommended
that the Motion be granted (Report and Recommendations, ECF
No. 545). Plaintiff United States of America (“United
States” or “Government”) objected (ECF No.
548), and the Magistrate Judge withdrew the Report and
Recommendations to allow consideration of the Motion on the
merits (ECF No. 549). Dewitt then filed a Reply in support
(ECF No. 550).
proceedings on the instant Motion are entirely separate and
apart from the § 2255 matters remanded from the United
States Court for the Sixth Circuit, on which Dewitt is
proceeding pro se and which are pending on a
Supplemental Report and Recommendations filed June 11, 2019
(ECF No. 552).
Motion asserts that Dewitt is eligible for sentence reduction
under the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194 (the “Act”). The Act made retroactive
the Fair Sentencing Act of 2010, Pub. L. No. 111-220.
Id. at § 404, 132 Stat. 5222. The Act applies
“to any defendant who, prior to August 3, 2010, was
convicted of an offense for which the Fair Sentencing Act
would have reduced the statutory penalties.” United
States v. Glore, No. 99-cr-82-pp 371 F.Supp.3d 524, 527
(E.D. Wis. 2019), reconsideration granted on other grounds at
2019 WL 1761581 (E.D. Wis. Apr. 22, 2019). The Act permits,
but does not require, that the Court reduce the sentences of
those who are eligible for a reduction under the Act.
United States v. Smith, No. 6:06-21-DCR-1, 2019 U.S.
Dist. LEXIS 33545, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).
Motion recites correctly that Dewitt was sentenced on January
30, 2004, to life imprisonment on Count 1 of the Indictment
and to concurrent terms of 240 months on Count 4 and 36
months on Count 6 (ECF No. 538, PageID 2660, citing Judgment,
ECF No. 369). Dewitt notes that this sentence represented an
upward departure from the then-mandatory Guideline Sentence
range of 292-365 months. Id. He argues that under
the Act that range would be reduced to 235-293 months under
the now-advisory Sentencing Guidelines. Id.
Guidelines became advisory with the decision of the United
States Supreme Court in United States v. Booker, 543
U.S. 220 (2005). Booker was handed down after
sentencing in this case, but before the Sixth Circuit decided
Dewitt's direct appeal. In its decision of the appeal,
the circuit court found that “treatment of the
Guidelines as mandatory is plain error because
Booker effects a clear change in the law.”
United States v. Dewitt, 145 Fed.Appx. 980, 982 (6th
Cir. 2005), citing United States v. Barnett, 398
F.3d 516, 525-26 (6th Cir. 2005). The Sixth
Circuit remanded the case for re-sentencing with the
Guidelines now understood as advisory. Dewitt was thereafter
on July 31, 2006, re-sentenced to the same sentence
previously imposed (Amended Judgment, ECF No. 407). He
appealed and the Sixth Circuit affirmed, United States v.
Dewitt, 304 Fed.Appx. 365 (6th Cir. 2008). It
found the Guideline sentencing range to be 360 months to life
imprisonment, based on an adjusted offense level of 42 and a
criminal history level of I. Judge Rice's decision to
enhance the sentence based on facts this Court found by a
preponderance - Dewitt's responsibility for two murders -
did not violate his Sixth Amendment rights. Id. at
368. It further found the sentence was both procedurally and
substantively reasonable. Id. at 369, 371. The
Supreme Court subsequently denied Dewitt's petition for
certiorari. Dewitt v. United States, 565 U.S. 1198
has filed numerous post-judgment motions under 28 U.S.C.
§ 2255 or 18 U.S.C. § 3582. All have been denied.
Two of those motions, which the Magistrate Judge
characterized as motions under 28 U.S.C. § 2255, are
before the Court on remand from the Sixth Circuit, which
accepted that characterization (See Report and
Recommendations, ECF No. 543; Supplemental Report and
Recommendations, ECF No. 552).
claims the First Step Act is applicable to him because
neither the plea agreement nor the plea hearing colloquy
“allege any particular amount of crack cocaine (or any
other drug type quantity).” Shortly after the plea in
this case, the Supreme Court decided the case of Apprendi
v. New Jersey[.]” (Motion, ECF No. 538, PageID
2661, citing 530 U.S. 466 (2000)). In Apprendi, the
Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. Dewitt alleges that, without
the proof prescribed by Apprendi, the maximum
sentence “would be limited to the lowest statutory
range, that of 0 to 20 years.” (Motion, ECF No. 538,
PageID 2661). The Motion continues by reciting Dewitt's
efforts at rehabilitation and how he has changed in the
twenty-eight years since his arrest. Id. at PageID
United States asserts that Dewitt is not eligible for
consideration under the First Step Act because “the
crack cocaine attributable to Dewitt at the time of his
sentencing supports the application of the same statutory
penalty pursuant to 21 U.S.C. § 841(b)(1)(A) even
following passage of the Fair Sentencing Act.” (Objs.
to Report, ECF No. 548, PageID 2701). The Government notes
that the Count One of the Indictment charged Dewitt
“with conspiracy to possess with intent to distribute
in excess of one kilogram of heroin and in excess of five
kilograms of cocaine[.]” Id. at PageID
2701-02. The Presentence Investigation Report
“attributed to Dewitt 4, 000 grams of heroin, 7, 000
kilograms of cocaine, and 485.99 grams of crack
cocaine.” Id. at PageID 2702. The Government
notes that “[t]he Fair Sentencing Act increased the
threshold crack cocaine quantity for [a] § 841(b)(1)(A)
offense to 280 grams, ” but the crack attributed to
Dewitt was more than 200 grams higher than that. Id.
at PageID 2703. The Government further notes that
Apprendi, on which Dewitt relies, has been held not
to apply retroactively to cases on collateral review.
Id. at PageID 2704, citing Goode v. United
States, 305 F.3d 378, 382 (6th Cir. 2002).
responds that no retroactive application of Apprendi
is needed because his case was on direct appeal when
Apprendi and Blakely v. Washington, 542
U.S. 296, 303 (2004), were decided; consequently, Dewitt
argues, he is entitled to their application to his case
(Response, ECF No. 550, PageID 2708-09, citing Griffith
v. Kentucky, 479 U.S. 314, 321-22 (1987)).
of the Indictment charged Dewitt with conspiracy to possess
with intent to distribute “in excess of one kilogram of
heroin, a Schedule I Controlled Substance, and in excess of
five kilograms of cocaine (including cocaine base which is
commonly referred to as crack cocaine), a Schedule II
Controlled Substance, in violation of Title 21 United States
Code, Section 841(a)(1) and (b)(1)(A).” (ECF No. 1,
PageID 2). Count 4 ...