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United States v. Hardnett

United States District Court, E.D. Virginia, Richmond Division

October 24, 2019




         This matter comes before the Court on Defendant Alexander Hardnett's Motion to Reduce Sentence Pursuant to the First Step Act of 2018 (the “Motion”). (ECF No. 335.) Hardnett asserts that the First Step Act entitles him to relief because he committed a covered offense before August 3, 2010. (Mot. 1-3.) The United States responded, asserting that the First Step Act does not afford Hardnett relief “because the quantity of crack cocaine for which he was responsible satisfies the increased threshold in the Fair Sentencing Act” (the “Opposition”). (Opp'n 1, ECF No. 336.) Hardnett replied. (ECF No. 337.) The United States filed a sur-reply, (ECF No. 340), and a Motion for Leave to File Sur-Reply 19 Minutes Out of Time, (ECF No. 343). These matters are ripe for disposition. For the reasons articulated below, the Court will grant the Motion for Leave to File Sur-Reply 19 Minutes Out of Time and grant in part and deny in part the Motion.

         I. Background

         On June 16, 2003, a Grand Jury indicted Hardnett and five others in a twenty-three-count indictment, charging them with various offenses related to a conspiracy to distribute crack cocaine in the Eastern District of Virginia. (PSR ¶ 1, ECF No. 334-1.) Within that indictment, the Grand Jury listed Hardnett in seven counts. The Court later dismissed on the United States' motions three of the seven counts that Hardnett faced. (ECF Nos. 76, 92.) Hardnett proceeded to trial on the four remaining counts: conspiracy to possess with intent to distribute 50 grams or more of cocaine base (Count One); possession with intent to distribute more than 500 grams of a mixture containing cocaine hydrochloride (Count Three); possession with intent to distribute more than 50 grams of cocaine base (Count Five); and possession with intent to “distribute a quantity of a mixture and substance described in Title 21, United States Code, Section 841(b)(1)(C), which contained a detectable amount of cocaine base, commonly known as ‘crack,' a Schedule II narcotic controlled substance, ” (Count Six). (Indictment, ECF No. 17.)

         Pursuant to 21 U.S.C. § 851, [1] the government filed an information charging Hardnett with a prior drug conviction.[2] (ECF No. 58.) The prior conviction raised Hardnett's mandatory minimum sentence for Count One from 120 months to 240 months. After a bench trial, the Court found Hardnett not guilty of Counts Three and Five and guilty of Counts One and Six.

         Following these convictions, a United States Probation Officer prepared a presentence report (“PSR”) to help the Court determine the appropriate sentence. The PSR stated that the United States “recommended that [Hardnett] be held accountable for distributing in excess of 1.5 kilograms of cocaine base between late 1998 and December 2002.” (PSR ¶ 32.) The PSR calculated for Hardnett an Offense Level of 46 and Criminal History Category VI. To make this calculation, the PSR used offense level 38 based on a drug weight in excess of 1.5 kilograms. (PSR Wkst. C); see also U.S. Sentencing Guidelines Manual §§ 2D1.1(a)(3), (c)(1), (c)(4) (U.S. Sentencing Comm'n 2003) (“USSG”) (specifying base offense levels in drug quantity table).[3]The PSR then added two offense levels for possession of a firearm, four levels for a supervisory role in the offense, and two levels for obstruction of justice, which resulted in an adjusted offense level of 46. (PSR ¶¶ 109-11, Wkst. C.)

         At sentencing on February 12, 2004, the Court made findings with respect to Hardnett's possession of a firearm, obstruction of justice, and supervisory role in the conspiracy, and adopted the PSR. (Sent. Tr. 9-10, ECF No. 336-1.) These findings increased Hardnett's offense level from 32 (based on the conviction for conspiracy to distribute 50 grams or more of crack cocaine), resulting in a recommendation for a life sentence. The Court sentenced Hardnett to the mandatory term of life on Count One and 360 months (30 years) on Count Six, to run concurrently. (Sent. Tr. 12, ECF No. 336-1.) The Court further imposed a supervised release term of ten years for Count One and six years for Count Six, to run concurrently. (Id.)

         Hardnett appealed. (ECF No. 130.) The United States Court of Appeals for the Fourth Circuit vacated Hardnett's sentence after finding that it violated “the rule announced in United States v. Booker, 543 U.S. 220 (2005), ” which the Supreme Court of the United States decided after Hardnett's initial sentencing hearing. United States v. Hardnett, 124 Fed.Appx. 767, 768 (4th Cir. 2005). At the July 13, 2005 resentencing on remand-where a life sentence was no longer mandatory-the Court sentenced Hardnett to 396 months on Count One and 360 months on Count Six. (ECF No. 179.) Looking to the 18 U.S.C. § 3553(a) sentencing factors, the Court considered mitigating evidence regarding Hardnett's traumatic childhood and Hardnett's positive involvement with his family. (July 13, 2005 Sent. Tr. 16; ECF No. 336-2.) Noting that a life sentence “is the second most serious penalty that can be imposed short of the death penalty, ” the Court weighed whether Hardnett's crime warranted that serious federal penalty. (Id.) The conclusion was no. Judge James R. Spencer specifically identified that “if left to my own devices, would I have given Mr. Hardnett life? No.” (Id. 16-17.) Because of the serious nature of the crime, the Court then imposed a 396 month (33 years) sentence on Count One and a 360 month (30 years) sentence on Count Six. (Id. 17.)

         Later, the Sentencing Commission reduced the Guidelines for Hardnett's offense.[4](ECF No. 259.) Specifically, Amendment 750 as set forth in Supplement to the 2010 Guidelines Manual (effective November 1, 2010), reduced the statutory penalties for cocaine base (“crack cocaine”) offenses such as Hardnett's in Count One. (ECF Nos. 269, 282.) On motion by Hardnett, the Court reduced his sentence for Count One from 396 months to 360 months. (ECF No. 282.) Because of the drug weight attributed to Hardnett in Count One, however, the twenty-year mandatory minimum remained in effect. The 30-year sentence for Count Six did not change and the supervised release terms remained in place.

         In 2016, during the Clemency Initiative that President Barack Obama authorized during his administration, pro bono Counsel reviewed Hardnett's case to determine whether he was eligible to seek clemency or other sentencing relief. (ECF No. 321.) As part of that request, pro bono Counsel compiled Hardnett's prison records, obtained several letters written on his behalf, documented pre-conviction and post-conviction mitigating evidence, and thoroughly analyzed his criminal history points and evaluated how, in 2016, certain criminal history points would no longer count against him in sentencing. (Id.)

         After conducting this review, pro bono Counsel asked the Court and the United States Attorney's office to consider implementing a reduction of Hardnett's sentences in accordance with the procedure used in Holloway v. United States, 68 F.Supp.3d 310 (E.D.N.Y 2014). In response to that inquiry, on January 7, 2016, Judge Spencer declined to follow the resentencing procedure used in Holloway, but added the following:

Counsel, alternatively, seeks a statement from the Court that Mr. Hardnett would receive a substantially lower sentence today. The Court affirmatively responds to that inquiry. Yes, if Mr. Hardnett were sentenced today, he would receive a substantially lower sentence.

(ECF No. 322.)

         Finally, in this First Step Act filing, Hardnett supplied numerous records and letters in support of his request for First Step Act relief. (ECF No. 337-1.) The records show that Hardnett has engaged in many prison programs and has only handful of minor disciplinary infractions during his incarceration. (Id.) His Education Teacher remarked, for example, that Hardnett “exhibits himself as an individual who has developed and persevered during his incarceration.” (Reply Ex. A. 72, ECF No. 337-1.) His immediate supervisor in the recreation services department at the Federal Correctional Complex in Petersburg, Virginia writes of Hardnett that he is “consistently dependable and pleasant, ” he is “widely respected by inmates and staff alike, ” concluding that “in my 16 years of experience; Mr. Hardnett is the most modeled and exceptional inmate I have encountered.” (Reply Ex. A. 68, ECF No. 337-1.) Another Recreation Specialist who supervises Hardnett commends his ability to plan out “his daily responsibilities for each day, ” adding that he “balances his work life with his church life and education.” (Id. 71.) Hardnett himself wrote to the Court, accepting responsibility for his actions, expressing remorse, and recognizing that his “past cost [him his] life.” (Id. 89.) Hardnett knows that he “was wrong and my decisions as well as my actions I've made in the past were solely of my own doing and the blame belongs to me. No. matter how I tried to justify my wrongs to make them appear to be right, they were still wrong and that is the fact of the matter.” (Id.) The United States responded in Opposition, arguing that the drug amounts affiliated with his offenses preclude First Step Act relief.

         Hardnett has served roughly 196 months (more than 16 years) of his 360-month sentence and, according to the parties, is scheduled to be released on March 22, 2029, or roughly nine and a half years from now.[5] (Mot. 1 n.1.)

         II. Legal Framework under the First Step Act

         Understanding the First Step Act's enactment and application requires the Court to briefly review Federal sentencing laws regarding powder cocaine and crack cocaine offenses and how such laws have evolved over the past thirty-five years. This evolution bears on Hardnett's sentencing in 2004, his resentencing in 2005, his sentence modification in 2013, and ultimately, the Motion at bar.

         A. History of Sentencing Powder Cocaine and Crack Cocaine Offenses

         The Sentencing Reform Act of 1984 created “a federal Sentencing Commission instructed to write guidelines that judges would use to determine sentences imposed upon offenders convicted of committing federal crimes.” Dorsey v. United States, 567 U.S. 260, 265 (2012). That legislative Act directed the Commission to create in the Guidelines categories of offense behavior and offender characteristics to inform the Court of the method for reaching an appropriate sentence. Id. The Guidelines determined most drug-crime offense levels through a table based on drug amounts or weight. Id. at 265-66.

         In 1986, Congress passed the Anti-Drug Abuse Act, which set forth more specific federal laws regarding illegal drugs. Dorsey, 567 U.S. at 266. The Anti-Drug Abuse Act delineated specific drugs and set forth penalties relative to each drug and amounts. Id. The statute created “mandatory minimum” sentences-sentencing floors-that a federal judge could not go below unless narrow factual circumstances were present. Id. Generally, the statute set drug quantity thresholds, which invoked no mandatory minimum, a five-year mandatory minimum, or a ten-year mandatory minimum. Id.

         The Anti-Drug Abuse statute also altered sentencing practice concerning crack cocaine and powder cocaine offenses. In doing so, the Anti-Drug Abuse Act established the 100-to-1 ratio associated with the amount of crack versus powder cocaine necessary to trigger mandatory minimum prison sentences-meaning that possession of five grams of crack cocaine would mandate the same minimum sentence as 500 grams of powder cocaine. Id. With this statutory framework in place, “the Sentencing Commission incorporated the 1986 Drug Act's mandatory minimums into the first version of the Guidelines themselves.” Dorsey, 567 U.S. at 267.

         “During the next two decades, the Commission and others in the law enforcement community strongly criticized Congress' decision to set the crack-to-powder mandatory minimum ratio at 100 to 1.” Dorsey, 567 U.S. at 268. See, e.g., United States v. Perry, 389 F.Supp.2d 278, 300 (D.R.I. 2005) (“For over a decade, the Sentencing Commission has urged an overhaul of the law concerning sentences in cocaine cases, particularly crack cases.”); United States v. Smith, 359 F.Supp.2d 771, 777 (E.D. Wis. 2005) (“Courts, commentators and the Sentencing Commission have long criticized this [crack cocaine] disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing.”) (collecting cases). To illustrate the problem with the crack-to-powder mandatory ratio, one court has explained:

five grams of crack, which triggers a five-year mandatory minimum sentence, represents only 10-50 doses with an average retail price of $225-$750 for the total five grams. In contrast, a powder cocaine defendant must traffic in 500 grams of powder, representing 2500-5000 doses with an average retail price of $32, 500- $50, 000, in order to receive the same five-year sentence. The 500 grams of cocaine that can send one powder defendant to prison for five years can be distributed to eighty-nine street dealers who, if they converted it to crack, could make enough crack to trigger the five year mandatory minimum for each defendant. The result is that local-level crack dealers get average sentences quite similar to intrastate and interstate powder cocaine dealers; and both intra-and interstate crack dealers get average sentences that are longer than international powder cocaine dealers.

Smith, 359 F.Supp.2d at 779.

         1. Commission-Driven Ratio Reductions in the Sentencing Guidelines

         As the disparity between crack cocaine and powder cocaine drew criticism, Congress and the United States Sentencing Commission attempted to address this disproportionate inequity in several ways. On three separate occasions the Sentencing Commission amended the Sentencing Guidelines to lower the punishment for certain drug trafficking crimes and voted to apply those reductions retroactively. See U.S. Sentencing Guidelines Manual Amendment 706; Amendment 750; Amendment 782. Notably, the Commission changed the sentencing Guidelines ranges for crack cocaine offenses. But only Congress could alter the statutory penalties for such crimes.

         2. Congressional Alterations to Penalties for Crack Cocaine Offenses

         Relevant to the Motion at bar, in 2010, Congress passed, and the President enacted, the Fair Sentencing Act of 2010 (the “Fair Sentencing Act”), Pub. L. No. 111-220, 124 Stat. 2372, which “reduced the statutory penalties for cocaine base offenses” to “alleviate the severe sentencing disparity between crack and powder cocaine.” United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016). Through the Fair Sentencing Act, Congress reduced the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. United States v. Black, 737 F.3d 280, 282 (4th Cir. 2013). The Fair Sentencing Act also directed the Sentencing Commission to conform the Sentencing Guidelines to the new statutory minimums “as soon practicable.” Id. But the Fair Sentencing Act did not apply retroactively to inmates like Hardnett who committed their drug offenses prior to 2010.

         To further remedy unfairly harsh sentences for drug offenses, in 2018, Congress passed, and the President signed into law, the First Step Act of 2018 (the “First Step Act”), Pub. L. No. 115-391, 132 Stat. 5194, which made retroactive certain provisions of the Fair Sentencing Act. Section 404 of the First Step Act 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, 5222 (2018). The First Step Act defines a “covered offense” 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. at § 404(a), 132 Stat. at 5222. These specified sections modified the drug amounts required to trigger mandatory minimums for crack cocaine trafficking offenses from 5 grams to 28 grams with respect to the 5- year mandatory minimum and from 50 grams to 280 grams with respect to the 10-year mandatory minimum. Fair Sentencing Act, Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372. The Fair Sentencing Act also eliminated the 5-year mandatory minimum for simple possession of crack. Id. at § 3, 124 Stat. 2372, 2372; see also Dorsey v. United States, 567 U.S. 260, 276- 77 (2012) (explaining sentencing discrepancies for certain drug offenses that the Fair Sentencing Act sought to remedy).[6]

         B. Debate as to First Step Act Resentencing Procedure

         Section 404 of the First Step Act does not expressly provide for a full or plenary resentencing or for a reconsideration of the original sentencing determinations.[7] Many courts have grappled with the manner in which both the eligibility and the extent of any reduction should be determined under the First Step Act. No. uniform procedure has emerged. Themes as to how the evaluation should proceed have nonetheless developed. The Court concludes that, regardless of whether it applies § 3582(c)(1)(B) or the First Step Act, standing alone, either procedural vehicle affords Hardnett relief.

         1. Procedures Undertaken When Modifying a Sentence Pursuant to § 3582(c)(1)(B)

         The United States contends that 18 U.S.C. § 3582(c)(1)(B) governs these proceedings. That provision states: “[T]he court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B)(emphasis added). While the United States asserts that § 3582 proceedings are limited in scope and do not authorize a de novo resentencing, (Opp'n 17), nothing in subsection 3582(c)(1)(B) prohibits the Court from considering relevant sentencing factors when examining a defendant's Guidelines range. See United States v. Dunphy, 551 F.3d 247, 256 (4th Cir. 2009) (finding that the district court properly considered the § 3553(a) sentencing factors, which did not turn the § 3582(c) proceeding into a full sentencing hearing).

         Indeed, the majority trend favors that, in most resentencing contexts, the resentencing court must at least consider the 18 U.S.C. § 3553(a) factors when modifying or imposing a sentence. This approach mirrors the Fourth Circuit's analysis under Rule 35(b)-specifically identified in subsection 3582(c)(1)(B)-which allows the Court to “consider other sentencing factors . . . when deciding the extent of a reduction.” United States v. Davis, 679 F.3d 190, 195, 197 (4th Cir. 2012) (“Imposing appropriate sentences requires that court be able to balance all relevant sentencing factors when determining a defendant's actual sentence reduction.”).[8]Furthermore, the Fourth Circuit has recently emphasized that district courts must adequately consider evidence of rehabilitation and other post-conviction mitigating conduct before deciding § 3582 motions for sentence reductions. United States v. Martin, 916 F.3d 389, 398 (4th Cir. 2019) (when considering § 3582(c)(2) motions, a “district court cannot ignore a host of mitigation evidence and summarily deny a motion to reduce a sentence and leave both the defendant and the appellate court in the dark as to the reasons for its decision.”).

         Numerous courts have examined First Step Act motions pursuant to § 3582(c)(1)(B). See, e.g., United States v. Coleman, 382 F.Supp.3d 851, 857 (E.D. Wis. 2019) (collecting First Step Act cases utilizing 18 U.S.C. § 3582(c)(1)(B) as procedural vehicle for motions brought under the statute). The Court similarly concludes that § 3582(c)(1)(B) informs the Court regarding how to modify a sentence pursuant to the First Step Act. At the same time, using this procedural vehicle does not foreclose the possibility that the First Step Act, standing alone, also provides an avenue to seek relief from certain crack cocaine sentences imposed prior to 2010.

         2. The First Step Act Grants Broad ...

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