United States District Court, W.D. Virginia, Abingdon Division
Charlene R. Day, Assistant United States Attorney, Roanoke, Virginia, for United States.
Christine Madeleine Lee,
Office of the Federal
Public Defender, Roanoke, Virginia, for Defendant.
JAMES P. JONES, District Judge.
Steven Blake Davis, a federal innnnnmate, was sentenced by this court in 1998 to 40 years in prison - based on an upward departure from a 120 to 150 month guideline range - for conspiring in prison with another inmate and a corrections officer to distribute controlled substances. He now moves for a sentence reduction pursuant to Amendment 782 of the U.S. Sentencing Guidelines Manual ("USSG"), USSG § 1B1.10, and 18 U.S.C. § 3582(c)(2). Davis has already served 209 months (approximately 17 and one-half years) on his sentence.
The government concedes that Davis is eligible for a reduction, but objects to a reduction on the grounds that a lowered sentence would not adequately represent the nature and circumstances of the offense, or the history and characteristics of the defendant. Based on the competing factors in this case, including Davis's age and the amount of time he has already served, balanced with his serious criminal history, I will reduce Davis's sentence to 265 months.
On April 30, 2014, the U.S. Sentencing Commission submitted to Congress a proposed amendment to the sentencing guidelines that would revise the guidelines applicable to drug trafficking offenses, effective November 1, 2014. The drug amendment, designated Amendment 782, generally reduces by two levels the offense levels assigned to the drug quantities described in U.S.S.G. § 2D1.1. The amendment does not apply to career offenders and is subject to any applicable statutory mandatory minimum sentences.
In July 2014, the Commission voted to apply Amendment 782 retroactively beginning November 1, 2014. However, in order to give the courts, probation officers, and the Bureau of Prisons time to process motions for sentence reductions and to prepare release plans for offenders affected by the amendment, the Commission required that any sentence reduction based on retroactive application of Amendment 782 not take effect until November 1, 2015, or later. Therefore, offenders affected by the retroactive application of Amendment 782 cannot be released before November 1, 2015.
My application of Amendment 782 is guided by statutory authority and the Guidelines Manual. 18 U.S.C. § 3582(c)(2) provides that, where a defendant has been sentenced to a term of imprisonment based on a guidelines range that was subsequently lowered by the Sentencing Commission, the court is authorized to reduce the term of imprisonment upon a motion of the defendant or on its own motion. In resentencing the defendant, the court must consider the factors in § 3553(a) to the extent they are applicable. Id. Further, the court must consider whether a sentence reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id.
On July 6, 1998, following his conviction by a jury, Davis was sentenced to 480 months imprisonment for conspiring to distribute controlled substances in violation of 21 U.S.C. § 846. At the time of the offense, Davis was incarcerated in a state correctional facility. The evidence at trial showed that Davis conspired with a corrections officer and another inmate to receive two packages containing approximately 10.83 grams of cocaine, 3.41 grams of marijuana, 1.16 grams of methamphetamine, and 10 Diazepram tablets. (Sentencing Tr. 6, ECF No. 121-2.) Davis's co-conspirators, the corrections officer and the inmate, received sentences of 28 months and 265 months, respectively.
Based on the corrections officer's testimony that the conspiracy lasted 146 weeks, and that there was on average at least one package sent per week, the court found by a preponderance of the evidence that the total drug amount applicable to Davis was 242 kilograms, resulting in a base offense level of 26. ( Id. at 35-38.) With a Criminal History Category of VI, Davis's guideline range was 120 to 150 months.
The sentencing judge found that the Criminal History Category of VI did not adequately reflect the seriousness of Davis's criminal history, however, and departed upward pursuant to USSG § 4A1.3. The court noted that, among a number of prior convictions, Davis had been convicted in 1979 of conspiring to deliver drugs to an inmate - conduct similar to the instant offense. Although such conduct would indicate a greater risk of recidivism, it was too remote in time to be counted in the criminal history category computation. ( Id. at 39.) Considered with the fact that Davis had been also convicted of the death of his passenger in a car wreck in 1988, the court found that he should be considered as if he were a Career Offender under USSG § 4B1.1, despite the fact that his prior convictions did not actually qualify him for that status. ...