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United States v. Dargan

United States District Court, W.D. Virginia, Roanoke Division

November 1, 2018



          Hon. Glen E. Conrad Senior United States District Judge

         On April 18, 2011, Senior United States District Judge James C. Turk sentenced the defendant, Edward Altina Dargan, Jr., to a term of imprisonment of 132 months, in accordance with the parties' agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The case is presently before the court on the parties' emergency joint motion for reduction of sentence, pursuant to 18 U.S.C. § 3582(c)(2), Amendment 782 to the United States Sentencing Guidelines ("U.S.S.G."), and the United States Supreme Court's recent decision in Hughes v. United States, 138 S.Ct. 1765 (2018).[1] For the reasons that follow, the court will grant the motion and reduce the defendant's term of imprisonment to 102 months, but not less than time served.


         On May 21, 2007, a state search warrant was executed at the Roanoke, Virginia residence shared by the defendant and another individual. A .22 caliber revolver and associated ammunition were seized from the defendant's bedroom. Various controlled substances, including 9.51 grams of cocaine base, were also seized from the residence. A subsequent investigation revealed that the defendant had been convicted of felony offenses in Virginia.

         On September 9, 2010, a grand jury in the Western District of Virginia returned a one-count indictment against the defendant. See United States v. Dargan, No. 7:10-cr-00057 (W.D. Va. Sept. 9, 2010). The indictment charged the defendant with possession of a firearm after having been convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).

         On November 1, 2010, the government filed a notice of enhanced punishment under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The notice advised the defendant that the government planned to prove at sentencing that he had three prior convictions for felony sale of a controlled substance and one prior conviction for felony eluding a police officer. If the defendant had been convicted of the firearm offense under § 922(g) and subsequently found to qualify as an armed career criminal, he would have been subject to a mandatory minimum term of imprisonment of fifteen years under § 924(e)(1).

         The defendant ultimately agreed to plead guilty to a one-count information charging him with simple possession of more than five grams of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 844(a). Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that the defendant would be sentenced to "132 months of incarceration." Plea Agreement 3, Dkt. No. 4. The parties also agreed "that the version of 21 U.S.C. § 844(a), which was in effect on May 21, 2007, shall be [the] version of the statute applied in this case and under this plea agreement."[2] Id. at 2. The defendant waived the right to appeal his sentence "on any ground." Id. at 7. He also waived the right to collaterally attack "any order issued in this matter," with the exception of "any collateral claim based upon an allegation of ineffective assistance or an issue which cannot be waived by law." Id.

         Prior to sentencing, a probation officer prepared a presentence report ("PSR"). In the PSR, the probation officer attributed 9.51 grams of cocaine base to the defendant, based on the quantity of drugs found in his residence. This particular drug quantity and type resulted in a base offense level of 18 under U.S.S.G. § 2D 1.1(c) (Supp. 2010). The defendant also received a two-level firearm enhancement and a three-level reduction for acceptance of responsibility, which resulted in a total offense level of 17. The defendant's total offense level, when combined with a criminal history category of IV, produced an advisory guideline range of imprisonment of 37 to 46 months.

         In the PSR, the probation officer emphasized that the defendant's plea agreement under Rule 11(c)(1)(C) limited his exposure to a substantial period of incarceration. The probation officer noted that if the defendant had proceeded to trial and been convicted of both the firearm and drug possession charges, "it is likely that he would have been determined to be an armed career criminal," which could have produced "a guideline custody range of 262 months to 327 months, as opposed to the stipulated custody term of 132 months." PSR ¶ 68, Dkt. No. 35.

         On April 18, 2011, the defendant appeared before Judge Turk for sentencing. At the beginning of the hearing, defense counsel explained that the defendant "was originally charged with a [§ 922(g)] violation and faced the threat of the government accusing him of being an armed career criminal." Sentencing Tr. 3, Dkt. No. 31. In light of the fifteen-year mandatory minimum sentence that would have applied if the defendant had been designated as an armed career criminal, the defendant "chose to agree to the 11(c)(1)(C) agreement . . . that called for him to receive 11 years" for the charge of possessing cocaine base. Id. In response to questions from Judge Turk, defense counsel indicated that he had not been able to get the government to agree to a lesser sentence. Id. at 4. Likewise, the Assistant United States Attorney ("AUSA") confirmed that the government was not willing to agree to a lesser sentence. Id. The AUSA emphasized that he was convinced that the defendant would have been sentenced as an armed career criminal if he had gone to trial on the firearm charge, and that the agreed-upon sentence "was arrived at in an effort to [account for] the potential punishment he could have faced had he gone to trial," in addition to "all the circumstances and background." Id. at 5.

         After hearing from the parties, Judge Turk accepted the plea agreement and adopted the PSR. Judge Turk explained that the advisory Sentencing Guidelines applicable to the defendant's case called for a period of incarceration of 37 to 46 months, but that the parties had agreed that a sentence of 132 months was appropriate. After "having considered the factors noted in 18 U.S.C. § 3553(a) and after having considered the advisory sentencing guidelines and the Rule 11(c)(1)(C) plea agreement," Judge Turk sentenced the defendant to a term of imprisonment of 132 months for the controlled substance offense. Id. at 8. He then granted the government's motion to dismiss the indictment containing the firearm charge. The defendant did not appeal his conviction or sentence.

         On May 22, 2015, the defendant filed a pro se motion for reduction of sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 782 to Sentencing Guidelines, which reduced the base offense levels assigned to most drug quantities in § 2D 1.1 by two levels. Section 3582(c)(2) authorizes the court to reduce a defendant's term of imprisonment if the term was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission," and "if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The court denied the motion, concluding that the defendant was not eligible for a sentence reduction under the statute.

         Because the defendant was sentenced under a Rule 11(c)(1)(C) agreement, the court looked to Justice Sotomayor's concurring opinion in Freeman v. United States, 564 U.S. 522 (2011) to determine whether the defendant was eligible for relief under § 3582(c)(2). See United States v. Brown. 653 F.3d 337, 340 (4th Cir. 2011) ("Under the fragmented opinion, Justice Sotomayor's rationale becomes the Court's holding."), abrogated by Hughes v. United States. 138 S.Ct. 1765 (2018). "Justice Sotomayor agreed with the dissent that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is based on the agreement and, therefore, § 3582(c)(2) relief is usually not available." Brown, 653 F.3d at 359. "However, Justice Sotomayor established an exception to this general rule - where the plea agreement itself expressly refers to and relies upon a Guidelines sentencing range." Id. (citing Freeman, 564 U.S. at 534 (Sotomayor, J., concurring)). Because the defendant's plea agreement did not expressly reference the Guidelines in establishing the agreed-upon term of imprisonment, the court concluded that the defendant was not eligible for relief under § 3582(c)(2).

         On October 12, 2018, the defendant, through counsel, and the government jointly moved to reduce the defendant's sentence, pursuant to § 3582(c)(2), Amendment 782, and the Supreme Court's recent decision in Hughes. The court gave the parties until 5:00 p.m. on Thursday, October 18, 2018 to file a supplemental brief in support of the motion. In accordance with the court's order, the defendant filed a supplemental brief in which he argued that he is eligible for a sentence reduction under the holding of Hughes, ...

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