United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz United States Magistrate Judge.
case is before the Court on Defendant's Objections (ECF
No. 558) to the Magistrate Judge's pending Supplemental
Report and Recommendations under the First Step Act (the
“Supplemental Report, ” ECF No. 557). The
Government has timely responded to the Objections (ECF No.
560) and District Judge Rice has recommitted the matter to
the Magistrate Judge for reconsideration in light of the
Objections (ECF No. 559).
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 Original Report recommended denying the Motion upon
finding Dewitt is not eligible for a reduction under the Act
(ECF No. 553, PageID 2724). Analyzing Dewitt's Objections
to that Original Report which seemed to depend largely on
applying the analysis of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the Magistrate Judge
again recommended finding Dewitt was ineligible for sentence
reduction under the First Step Act (Supplemental Report, ECF
present Objections disclaim making any Apprendi
claim although they note Dewitt previously did make a claim
under Apprendi on November 7, 2000, in his ps motion
to withdraw his guilty plea (ECF No. 558, PageID 2748).
Objections correctly summarize the Magistrate Judge's
analysis: Dewitt is not eligible for a sentence reduction
under the First Step Act because he was not sentenced for a
“crack cocaine” offense. Instead, he was
sentenced on his plea of guilty to conspiring to distribute
in excess of one kilogram of heroin and five kilograms of
cocaine. The fact that some quantity of crack cocaine was
present in the five kilograms of cocaine charged against
Dewitt is immaterial.
case law relied on by Dewitt is neither controlling nor
persuasive. In United States v. Medina, 2019 WL
3766392 (D.Conn. Aug. 9, 2019), defendant was convicted of a
“conspiracy to possess with intent to distribute and to
distribute 50 grams or more of crack cocaine and five
kilograms or more of powder cocaine. Id. at *1. In
the course of his decision, Judge Underhill notes that the
purpose of both the Fair Sentencing Act and the First Step
Act was to “mitigate[e] the unfairness created by the
crack-to-powder ratio” that applied in crack cocaine
offenses prior to the Fair Sentencing Act. Dewitt was not
impacted by that earlier crack-to-powder ratio.
States v. Williams, 2019 WL 3251520 (D.S.C. Jul. 19,
2019), involved a charge of conspiracy to distribute five
kilograms or more of cocaine and 50 grams or more of cocaine
base. The jury had been instructed they could convict on the
relevant count upon finding either five kilos of powder or 50
grams of crack and the jury did not specify which they found.
States v. Stone, 2019 WL 2475750 (N.D. Ohio Jun. 13,
2019), involved a pre-Apprendi case from 1996 where
defendant was charged with conspiracy to distribute cocaine
and/or cocaine base and the jury was not asked to make
quantity determinations which they judge made at sentencing.
When Stone sought relief under the First Step Act, the court
had to determine if Apprendi applied and concluded
that it did, resulting in a lowered sentencing range. Here
again the charge relating to cocaine base is evident on the
face of the indictment.
in United States v. Opher, 2019 WL 3297201 (D.N.J.
Jul. 23, 2019), defendants had been charged with both five
kilograms or more of powder cocaine and fifty grams or more
of crack. Judge Hayden expressly found that eligibility for
reduction under the First Step Act depended on the statute of
conviction and not the offense conduct or drug quantities.
Dewitt was not charged with any offense whose mandatory
minimum sentence would have been affected by the Fair
Sentencing Act had he been sentenced after it became
effective. Therefore he is not eligible for a sentence
reduction under the First Step Act. His Motion for that
Relief (ECF No. 538) should be denied.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. A party may respond to another party's
objections within fourteen days after ...