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United States v. Dewitt

United States District Court, S.D. Ohio, Western Division, Dayton

June 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KEITH DEWITT, SR., Defendant.

          Walter Herbert Rice District Judge.

          REPORT AND RECOMMENDATIONS ON MOTION FOR REDUCE SENTENCE UNDER THE FIRST STEP ACT

          Michael R. Merz United States Magistrate Judge

         This 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. 537).

         The 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).

         The 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).

         The 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).

         The 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.

         The 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 (2009).

         Dewitt 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).

         Dewitt 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 2661-62.

         The 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).

         Dewitt 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)).

         Analysis

         Count 1 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 ...


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