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United States v. Dewitt

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

August 14, 2019

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

          Walter Herbert Rice, District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This case is before the Court on Defendant's Objections (ECF No. 554) to the Magistrate Judge's pending Report and Recommendations under the First Step Act (the “Report, ” ECF No. 553). The Government's time to respond to the Objections expired July 9, 2019, and no response was filed. District Judge Rice has recommitted the matter to the Magistrate Judge for reconsideration in light of the Objections (ECF No. 555).

         Dewitt, represented by Assistant Federal Defender Schad, moved to reduce his sentence pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (the “Act”). The Report recommended denying the Motion upon finding Dewitt is not eligible for a reduction under the Act (ECF No. 553, PageID 2724).

         Dewitt claims he is eligible under the Act because “neither the plea agreement nor the plea hearing colloquy ‘allege any particular amount of crack cocaine (or any other drug type quantity).'” (Motion, ECF No. 538, PageID 2661.) Because the quantity of drugs involved in the offense is treated as an “element” of the crime which increases the statutory penalties, Dewitt argues that lack of a finding or admission of quantity limits his sentence to the lowest statutory range, zero to twenty years. Id., relying on Apprendi v. New Jersey, 530 U.S. 466 (2000). The Report concluded Dewitt could not now raise an Apprendi claim because he was sentenced three and one-half years after Apprendi but made no objection on that basis either in this Court or on appeal (ECF No. 553, PageID 2723).

         Standing on his Apprendi claim, Dewitt asserts, “[t]he Government's failure to seek at the plea hearing Defendant Dewitt's assent to quantities, and the Court's failure to inquire of quantities, precludes any argument that the statutory penalties are not affected by the First Step Act.” (Objections, ECF No. 554, PageID 2727.) He offers no response to the Report's analysis that he forfeited any Apprendi claim by not raising it at sentencing or on direct appeal. Indeed, he does not contradict the Report's finding that the first time he ever “made any claim that a particular amount of any drug had to be admitted or proved beyond a reasonable doubt is when he filed the instant Motion on March 27, 2019.” (Report, ECF No. 553, PageID 2723.) This is despite having filed numerous motions to vacate under 28 U.S.C. § 2255 or motions under other statutes construed by this Court as § 2255 motions (ECF Nos. 427, 458, 473, 493, 498, 510).

         Dewitt also objects to the Report's conclusion that his guilty plea to an Indictment, which alleges on its face sufficient facts to authorize the statutory range the Court used, is an admission of those facts. As support he cites the Sixth Circuit's finding on direct appeal that “the district court committed plain error and defendant's sentence violated his Sixth Amendment rights when the district court sentenced him under the then-mandatory Guidelines, based on facts not admitted in his guilty plea.” United States v. Dewitt, 145 Fed. App'x 980, 982 (6th Cir. 2005). Earlier in the opinion, the Sixth Circuit found:

In this case, the defendant pleaded guilty to conspiring to possess with intent to distribute in excess of one kilogram of heroin and in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846. The statutory sentencing range for such an offense is between ten years and life imprisonment. Id. § 841(b)(1)(A). In sentencing Dewitt to life imprisonment, the district court treated the Guidelines as mandatory and relied on a number of determinations that were not admitted in the guilty plea, including drug amounts, possession of a firearm, and Dewitt's leadership role in the offense. Our review is for plain error, as it does not appear that Dewitt argued the advisory nature of the Guidelines before the district court. See United States v. Oliver, 397 F.3d 369, 377-78 & n.1 (6th Cir. 2005). Under [United States v.] Booker, [543 U.S 220 (2005)] a district court's treatment of the Guidelines as mandatory is plain error because Booker effected a clear change in the law. United States v. Barnett, 398 F.3d 516, 525-26 (6th Cir. 2005).

Id. at 981-82. In other words, the error this Court committed was treating the Sentencing Guidelines as mandatory and then calculating Dewitt's guideline range based on judge-found facts. That is, Judge Rice found the offense level to be 42 and the criminal history category to be 1, resulting in an imprisonment range of 360 months to life imprisonment.

         On remand for resentencing by the Sixth Circuit, represented by the same attorney who represents him on the instant Motion, Dewitt argued:

In the present case, there were several facts relied upon by this Court at the initial sentencing hearing which were not admitted to by the Defendant. For instance, 4 points were added under U.S.S.G. § 3B1.1 for the Defendant's alleged leadership role in the offense. The Defendant did not agree that this enhancement was accurate or appropriate, and there is no jury verdict to support the enhancement.
Second, the Court relied on the Defendant's alleged participation in a murder. Certainly, the Defendant did not admit to involvement in that offense, and this Court is aware that he was acquitted of such conduct. In fact, 23 of 24 jurors, who were able to see all of the evidence, voted for acquittal. Certainly, the inclusion of this evidence in the sentencing analysis did not meet Sixth Amendment standards.
The Defendant submits that any enhancements which are not supported by a jury verdict or the Defendant's admission cannot be used to calculate the advisory Guidelines, based upon the above precedent. Accordingly, the Guidelines range must be recalculated.

(Sentencing Memorandum, ECF No. 402, PageID 1362.) Nevertheless, Judge Rice found the relevant facts by a preponderance of the evidence, then calculated the same guideline range as before, this time advisory, and imposed the same sentence (ECF No. 407). The Sixth Circuit affirmed despite Dewitt's claim that the District Court had used “judicial findings of fact to enhance his overall offense level. . ...


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