United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
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). 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.
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.
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).
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
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." 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.
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.
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.
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.
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.
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.
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 §
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