Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. VanBuren

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

July 15, 2019

United States of America
v.
Eric Martin VanBuren, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant Eric Martin VanBuren (“Defendant”), through counsel, filed a motion for reduction of sentence pursuant to the First Step Act of 2018. (Dkt. 147). The motion has been fully briefed and is ripe for review. For the following reasons, the Court will grant Defendant's motion to the extent of a reduction to 264 months of imprisonment, but not less than time served, to be followed by 8 years of supervised release.

         Defendant was indicted for conspiracy to possess with intent to distribute and to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1). (Dkt. 147-1 (Exhibit - Indictment (Dkt. 3))). On July 8, 2002, shortly before trial, the Government filed a 21 U.S.C. § 851 Notice of Enhanced Punishment. (Dkt. 147-2 (Exhibit - Notice (Dkt. 37))). On July 11, 2002, a jury found Defendant guilty of the conspiracy. (Dkt. 42).

         According to the Presentence Report, Defendant's attributable drug weight was 205 kilograms of cocaine base and his Total Offense Level was 44. (Dkt. 148 at 6). Defendant objected to this calculation at his sentencing. (Dkt. 147-3 at 5-8). The Presentence Report also set out a Criminal History Category of III. (Dkt. 148 at 9). The Court adopted the Presentence Report, finding a Total Offense Level of 44 and a Criminal History Category of III. (Dkt. 147-3 at 10, 14, 17). Pursuant to the then mandatory guidelines for Defendant's level and category, he was sentenced to life imprisonment followed by 10 years of supervised release. (Dkt. 147-3 (Sentencing Transcript)). The Fourth Circuit affirmed on appeal. United States v. VanBuren 190 Fed.Appx. 257 (4th Cir. 2006) (unpublished) (per curiam). Defendant filed the instant motion pursuant to the First Step Act. (Dkt. 147).

         Section 404 of the First Step Act of 2018 permits “[a] court that imposed a sentence for a covered offense” to “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, § 404(b), 132 Stat. 5194 (2018). A “covered offense” is defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372), that was committed before August 3, 2010.” Id. § 404(a). Nothing in § 404 shall be construed to require a court to reduce any sentence pursuant to the section. Id. § 404(a).

         The Fair Sentencing Act “reduced the statutory penalties for cocaine base offenses” in order to “alleviate the severe sentencing disparity between crack and powder cocaine.” United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016). As relevant in this case, section 2 of the Fair Sentencing Act increased the drug quantities necessary to trigger mandatory minimum and maximum penalties under 21 U.S.C. § 841(b)(1)(A) & (b)(1)(B). Pub. L. No. 111-220. Relevant here, the cocaine base threshold required to trigger the application of 21 U.S.C. § 841(b)(1)(A) was increased from 50 grams to 280 grams and, for § 841(b)(1)(B), from 5 grams to 28 grams. Id.

         Modifications of sentences under the First Step Act are governed by 18 U.S.C. § 3582(c)(1)(B), which states: “[T]he court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . .” In determining if modification is appropriate, the Court will first address whether a reduction is consistent with the First Step Act, and will then “consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).” See Dillon v. United States, 560 U.S. 817, 826 (2010).[1]

         The Court first determines whether a defendant is eligible for consideration under the First Step Act. Defendant was convicted of conspiracy involving a cocaine base-related offense in violation of 21 U.S.C. §§ 846 and 841(a)(1), with sentencing under § 841(b)(1)(A). The offense was committed before August 3, 2010. The Government argues, however, that § 841(b)(1)(A) continues to provide the appropriate statutory minimum and maximum penalties for Defendant because the drug weight findings at sentencing establish that the offense involved an amount above the Fair Sentencing Act threshold of 280 grams of cocaine base. Thus, the Government concludes, Defendant is not eligible for a reduction pursuant to the First Step Act. (Dkt. 155 at 1, 7-8). Defendant responds that the drug weight is an element of the offense and that any fact that increases a mandatory minimum penalty (or maximum penalty) must be charged in an indictment and proved to a jury beyond a reasonable doubt pursuant to the U.S. Supreme Court holdings in Apprendi and Alleyne. (Dkt. 156 at 2).

         In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Alleyne v. United States, 570 U.S. 99, 108 (2013), the Court expounded upon that rule, holding that “[f]acts that increase the mandatory minimum sentence are therefore elements [of the offense] and must be submitted to the jury and found beyond a reasonable doubt.” Here, the jury found Defendant guilty of the sole count in the Indictment, a count which accused Defendant of conspiring to possess with intent to distribute and to distribute a mixture or substance containing cocaine base, which weighed more than fifty grams. (See Dkt. 147-1 at 1 (Indictment)). The Indictment does not charge 280 grams or more of cocaine base, the Fair Sentencing Act threshold for application of 21 U.S.C. § 841(b)(1)(A).

         The Government contends that the Apprendi/Alleyne doctrine does not apply in the First Step Act context because neither case is retroactively applicable on collateral review. (Dkt. 155 at 8 (citing, inter alia, United States v. Sanders, 247 F.3d 139, 150-51 (4th Cir. 2001))). Under the First Step Act, however, defendants are directly eligible for relief under the Act where they were convicted of a “covered offense” as defined by Section 404(a) of the First Step Act. Pub. L. No. 115-391, § 404(a). “The term ‘covered offense' means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” Id. Accordingly, the Court will consider the crime of conviction, not the conduct reported in the Presentence Report, in determining whether Defendant is eligible for a sentence reduction under the First Step Act. In doing so, this Court joins others in this district finding the holdings of Apprendi and Alleyne applicable in the First Step context with respect to whether the statutory penalties have been modified. See, e.g., United States v. Ancrum, No. 5:02-cr-30020, 2019 WL 2110589 (W.D. Va. May 14, 2019) (J. Urbanski) (“although Apprendi and Alleyne are not retroactively applicable on collateral review, this court joins other courts in finding that their holdings are applicable in the context of the First Step Act”) (collecting cases).

         The Court originally imposed a sentence under 21 U.S.C. § 841(b)(1)(A) because the jury's verdict, in light of the Indictment, met the then-threshold amount of cocaine base set out in that subsection. Because the Indictment, and thereby the related jury verdict, specified more than 50 grams of cocaine rather than more than 280 grams, subsection 841(b)(1)(B), as modified by the Fair Sentencing Act, applies to Defendant under the First Step Act rather than subsection 841(b)(1)(A). Under subsection 841(b)(1)(B), a defendant is subject to a statutory minimum sentence of five years and maximum sentence of 40 years. With the application of one 21 U.S.C. § 851 enhancement, the new statutory minimum for the Defendant is ten years while the statutory maximum is life and the period of supervised release is at least eight years.[2] 21 U.S.C. § 841(b)(1)(B). The statutory minimum at sentencing, with one § 851 enhancement, was 20 years. (See Dkt. 148 ¶ 54, Dkt. 149 at 4; see also Dkt. 147 at 4). The Court, therefore, finds Defendant is eligible for consideration of a sentence reduction under the First Step Act.

         Finding relief consistent with the First Step Act in this case, the Court next “consider[s] whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).” See Dillon, 560 U.S. at 826. In considering the factors under 18 U.S.C. § 3553(a), the parties disagree as to Defendant's applicable amended Guidelines range under the First Step Act compared to the original Guidelines range. Defendant compared the sentence he received in 2002 with the sentence he would “likely receive today.” Defendant began with a Base Offense Level of 24 (compared to 38 in the original Presentence Report) using “at least 50 grams of cocaine base” as the drug quantity, increased to an Adjusted Offense Level of 30 in light of Defendant's role in the offense, his obstruction of justice, and the presence of a dangerous weapon. With a Criminal History Category of III and an Offense Level of 30, Defendant asserts the Court should consider the corresponding Guidelines range of 121-151 months. (Dkt. 147 at 3-4).

         The Government, however, calculates the Base Offense Level as 38 by using the 205 kilograms in the original Presentence Report, which was adopted by the Court as part of the original sentencing. Although the threshold for a base level of 38 has increased from 1.5 kilograms in 2002 to 25.2 kilograms today, both amounts are less than 205 kilograms. The resulting Adjusted Offense Level would be 44 and the corresponding Guidelines range would be life. (Dkt. 155 at 11). The Government argues that because the Guidelines range, as calculated by the Government, remains life, no reduction is warranted. (Id.).

         The difference between the proffered Guidelines ranges resides in the calculation of the Base Offense Level under U.S.S.G. § 2D1.1. Defendant uses the range applicable to more than 50 grams of cocaine base, which corresponds to a Base Offense Level of 24 (at least 28 grams but less than 112 grams), while the Government uses the 205 kilograms of cocaine base in the Presentence Report adopted by the Court, which corresponds to a Base Offense Level of 38. Although Apprendi and Alleyne preclude consideration of the Court's determination of the amount of cocaine base in determining whether a defendant is eligible for a sentence reduction under the First Step Act and in recalculating a defendant's statutory minimum and maximum penalties, the holdings do not apply to a court's determination of a Guidelines range within the statutory penalty range. United States v. Benn, 572 Fed.Appx. 167, 180 (4th Cir. 2014) (unpublished) (“Alleyne has no application to Appellants' sentences in this case. The district court's drug quantity determinations at sentencing did not increase Appellants' statutory mandatory minimum sentences, but rather, were used to determine their advisory Guidelines ranges . . . .”) (collecting cases); United States v. Orozco, 716 Fed.Appx. 390, 400 (6th Cir. 2017) (“It is settled law that judge-found ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.