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United States v. Robinson

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

November 13, 2019

UNITED STATES OF AMERICA
v.
STEPHEN ROBINSON, Defendant

          MEMORANDUM OPINION

          HON. MICHAEL F. URBANSKD CHIEF UNITED STATES DISTRICT JUDGE

         Stephen Robinson, represented by counsel, filed a motion to reduce his sentence pursuant to Section 404(b) of the First Step Act of 2018. ECF No. 239. He asks the court to reduce his current sentence of 262 months to what he argues is his current guideline sentence of 120-150 months, which would result in a sentence of time served. The government asserts that Robinson is ineligible for consideration of a reduction in his sentence, and in the alternative, that if he is eligible for consideration, a further reduction of his sentence is not warranted. For the reasons set forth below, the court will GRANT Robinson's request in part and MODIFY his sentence to a total of time served, to be followed by a 4-year term of supervised release.

         BACKGROUND

         On October 4, 2006, Robinson entered into a plea agreement in which he pleaded guilty to one count of conspiring to distribute 50 grams or more of cocaine base and 500 grams or more of powder cocaine in violation of 21 U.S.C. § 846. ECF No. 103. In exchange, the government agreed to dismiss the remaining counts and also agreed not to file a notice of prior felony convictions under 21 U.S.C. § 851. ECF No. 103. On the same day, Robinson pled guilty in accordance with the plea agreement. ECF Nos. 97, 103, 104.

         Robinson faced a statutory sentencing range of 10 years to life. 21 U.S.C. § 841(b)(1)(A) (2002); ECF No. 241. According to the Presentence Investigation Report ("PSR"), Robinson was responsible for 449 grams of cocaine base. Id. Under the sentencing guidelines, that drug quantity resulted in a base offense level of 34. He received a 3-point decrease for acceptance of responsibility for a subtotal offense level of 31. However, he was found to be a career offender, which resulted in a base offense level of 37, decreased by 3 points for acceptance of responsibility to 34. U.S.S.G. § 4B1.1(b)(A); ECF No. 241. With his total offense level of 34 and his criminal history of VI, his guideline range was 262 to 327 months. U.S.S.G. Ch. 5, Part A; ECF No. 241.

         On January 16, 2007, Robinson was sentenced to 262 months to be followed by a 5-year term of supervised release. ECF No. 120. He has served approximately 163 months. Robinson also is subject to a consecutive 262-month sentence imposed by the United States District Court for the Northern District of West Virginia for conspiracy to distribute less than 5 grams of cocaine base. See United States v. Robinson. 3:08-CR-42 (N.D.W.V. 2009). Taking both sentences into account, his projected release date is April 28, 2044. ECF No. 244.

         Robinson seeks relief under the First Step Act. He argues that he is eligible for relief and that this court has discretion to reduce his sentence to a sentence that will result in his release to begin serving his sentence out of the West Virginia court. In addition, Robinson argues that under current case law, he would no longer be considered a career offender and that he should not be considered a career offender when his sentence is analyzed under the First Step Act.

         The government counters that because the offense involved a drug quantity over the revised threshold, Robinson is not eligible for relief under the First Step Act. The government also argues that if the court finds that Robinson is entitled to a reduced sentence, any sentence below the revised guideline range for a career offender of 188 to 235 months and a 4-year period of supervised release is not warranted. Finally, the government asserts that under the First Step Act a court should not reexamine any guidelines issue determined at sentencing other than those directly impacted by the First Step Act.

         ANALYSIS

         I. First Step Act

         At the time Robinson was sentenced, a violation of § 841(a)(1) carried a mandatory minimum sentence of 10 years and a maximum sentence of life imprisonment if the offense involved more than 50 grams of cocaine base, and a penalty range of 5 to 40 years if the offense involved more than 5 grams of cocaine base. 21 U.S.C. § 841(b)(1)(A) and (B) (2006). In 2010, the Fair Sentencing Act was passed, and Section 2 of the Act reduced penalties for offenses involving cocaine base by increasing the threshold drug quantities required to trigger mandatory minimum sentences under 21 U.S.C. § 841(b)(1). Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010). Currently, in order to trigger the 10-years-to-life-sentencing range, the offense must involve more than 280 grams of cocaine base, and to trigger the 5-to-40-year sentencing range, the offense must involve more than 28 grams of cocaine base.

         The First Step Act was passed on December 21, 2018. Section 404 of the act permits a court, upon motion of the defendant or the government, or upon its own motion, to impose a reduced sentence for certain offenses in accordance with the Fair Sentencing Act of 2010, if such a reduction was not previously granted. Offenses qualify for the reduction if they were committed before August 3, 2010 and carry the statutory penalties which were modified by section 2 or 3 of the Fair Sentencing Act of 2010. First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 (2018).

         The government argues that even though Robinson committed his offense before August 3, 2010, and even though his offenses carry the statutory penalties which were modified by Section 2 or 3 of the Fair Sentencing Act, that he does not qualify for a sentence reduction. The government argues that it is the drug weight for which a defendant is held responsible and not the drug weight for which he was convicted that determines eligibility for First Step Act relief and that Robinson's drug quantity in the PSR makes him ineligible. In the alternative, the government contends that even if Robinson is eligible for a modification of his sentence, he still is a career offender with a guidelines range of 188-235 months and that a variance below that range is not warranted.

         II. Drug Weight

         The government asserts that whether a defendant is entitled to relief under the First Step Act depends on the amount of cocaine base for which he was found responsible in the PSR, rather than the amount for which he was indicted and convicted. Because Robinson was found responsible for 449 grams of cocaine base in the PSR, which would make him subject to the 21 U.S.C. § 841(a)(1)(A) penalties, the government argues that he is not entitled to relief under the First Step Act.

         Robinson responds that it is the drug weight charged in the indictment and not the drug weight in the PSR that determines eligibility for First Step Act relief. In Apprendi v. New Jersey. 530 U.S. 466 (2000), and Alleyne v. United States. 570 U.S. 99 (2013), the Supreme Court established that the drug weight is an element of the offense and any fact that increases a mandatory minimum penalty is an element that must be charged in an indictment and proved to a jury beyond a reasonable doubt. Under those two cases, if ...


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