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United States v. Paul

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

December 12, 2019

UNITED STATES OF AMERICA
v.
XAVIER MARCELLUS PAUL, Defendant.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Before the Court is Xavier Marcellus Paul's ("Paul" or "defendant") pro se Motion to Reduce [Dkt. No. 315] and a Supplemental Motion to Reduce Sentence Pursuant to § 404 of the First Step Act of 2018 [Dkt. No. 319] filed on his behalf by the Office of the Federal Public Defender, In these motions, Paul seeks a reduction of the term of imprisonment for his convictions related to the possession with intent to distribute crack cocaine from 324 months to 288 months, or time served if the Bureau of Prisons ("BOP") determines that a sentence of 288 months would result in Paul's immediate release. The United States opposes these motions, arguing that Paul is ineligible for relief under the First Step Act and that even if he were eligible, relief should be denied under the circumstances of his case. For the reasons stated below, Paul's motions will be granted.

         I. BACKGROUND

         On May 14, 1998, when Paul was 24 years-old, a federal grand jury in the Eastern District of Virginia returned an indictment charging him and three co-defendants with conspiracy to possess and distribute 50 grams or more of cocaine base, a Schedule II controlled substance, [1]in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1), and charging Paul with aiding and abetting the possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 5). [Dkt. No. 319-1]. At the time, under 21 U.S.C. § 841(b)(1)(A)(iii), each count carried a mandatory minimum sentence of 10 years' imprisonment and a maximum of life imprisonment.

         In August 1998, Paul and one of his co-defendants proceeded to a jury trial conducted by Judge James C. Cacheris, who has since retired from the bench.[2] At the close of trial, Judge Cacheris instructed the jury that "[t]he evidence received in this case need not prove the actual amount of the controlled substance that was part of the alleged transactions or the exact amount of the controlled substance alleged in the Indictment"; instead, "[t]he government must prove beyond a reasonable doubt... a measurable amount of the controlled substance alleged in the Indictment." [Dkt. No. 319-1] at 21. The jury found Paul guilty of Counts 1 and 5, but in light of how it was instructed, made no findings about the amount of cocaine base involved in either offense.[3] Id. at 25.

         The Presentence Investigation Report (PSR) held Paul accountable for 3, 598 grams of cocaine base, [Dkt, No. 320] at 7, ¶ 17, and on that basis calculated Paul's base offense level to be 38, PSR Worksheet A, Id. at 21. The probation officer added two levels for obstruction of justice based on Paul testifying falsely during the trial, resulting in a final offense level of 40. Id. at 8-9, 17. Given that Paul's criminal history was assessed as a category VI, [4] Id. at 17, ¶ 69-70, the resulting sentencing range was 360 months to life imprisonment. Through counsel, Paul objected to this sentencing range, asserting, among other claims, that the amount of drugs attributed to him in the PSR was too high and that the PSR overstated the seriousness of his criminal history. [Dkt. No. 319-1] at 30-39, 41-42. The Court overruled Paul's objections, adopted the PSR, and pursuant to the then-mandatory guidelines, [5] sentenced him to 360 months' imprisonment for each count, to run concurrently and to be followed by a five-year period of supervised release. [Dkt. No. 319-1] at 42-45, 47. The Court concluded that this sentence was "more than adequate" for punishment and deterrence. [Dkt. No. 319-1] at 45.

         In March 2010, Paul filed a prose motion for a sentence reduction under Guideline Amendment 706, which lowered the base offense levels for crack cocaine offenses. [Dkt. No. 287], This motion was denied because even with the reduction in the base offense level, Paul's guideline range remained the same: 360 months to life imprisonment. [Dkt. No. 293]. In November 2015, Paul moved, through counsel, for a sentence reduction pursuant to Amendment 782 to the guidelines. [Dkt. No. 309]. As Paul argued at the time, under the amended guidelines and using the amount of cocaine base used in the PSR, Paul's offense level should be 36, which combined with a category VI criminal history would result in an advisory guideline range of 324 months to 405 months. The Court granted Paul's motion, and reduced his sentence from 360 months to 324 months. [Dkt. No. 310].

         In the Fair Sentencing Act of 2010, Congress amended § 841(b)(1) to reduce the disparity in the penalties for cocaine-related drug offenses. As relevant here, it increased the threshold for the statutory sentencing range often years to life imprisonment from 50 grams to 280 grams of cocaine base, and increased the threshold for the range of five to forty years imprisonment from 5 grams to 28 grams of cocaine base. Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372 (codified as amended at 21 U.S.C. § 841(b)(1)). And in Section 404 of the First Step Act of 2018, Congress provided mat a court that had "imposed a sentence" for a "covered offense," meaning a pre-August 2010 violation of a federal criminal statute "the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act," "may ... impose a reduced sentence as if sections 2 and 3 of the [Act] were in effect at the time the ... offense was committed." Pub. L. No. 115-391, § 404(a)-(b), 132 Stat. 5194, 5222. The First Step Act makes clear that even if a defendant is eligible for a sentence reduction, the decision whether to grant a reduction remains within the district court's discretion. See Id. § 404(c) ("Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.").

         As of September 13, 2019, Paul's Summary Reentry Plan - Progress Report indicated that Paul's projected release date is August 27, 2022, and that he has been incarcerated for 21 years and three months, and has accrued 823 days of good conduct time, statutory good time, or extra good time, plus 167 days of jail credit. [Dkt. No. 319-2] at 13. Combining these amounts, it appears that Paul has served at least 288 months' imprisonment.

         II. DISCUSSION

         In the instant motion, Paul argues that the Court should reduce his sentence from 324 months to 288 months or time served under Section 404 of the First Step Act, in light of his eligibility for such a reduction, the harshness of the prior statutory penalties for crack cocaine offenses, and his rehabilitation over the last twenty years.[6] The government argues both that the defendant is ineligible for a sentence reduction under the First Step Act and that even assuming he were eligible, such relief is inappropriate under the circumstances of his case. Neither of the government's arguments is persuasive.

         The government argues that Paul is ineligible for a First Step Act reduction because he was not sentenced for a "covered offense." Under the statute, a "covered offense" is a pre-August 2010 "violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act." Pub. L. No. 115-391, § 404(a), 132 Stat. 5194, 5222. The government argues that the phrase "the statutory penalties for which" modifies the full phrase "a violation of a Federal criminal statute," rather than simply "Federal criminal statute." [Dkt. No. 322] at 6. Accordingly, the government argues, the Court should evaluate Paul's eligibility "by reference to the specific violation [he] committed, rather than his statute of conviction." Id. The government argues that Paul's violation, as determined by reference to the offense conduct elicited through trial testimony and described in the PSR, supports a finding that he was responsible for more than 280 grams of cocaine base and therefore would have been subject to the same penalty range even if the Fair Sentencing Act had been in effect.

         Recently, the Fourth Circuit squarely rejected this argument by holding, in United States v. Wirsing, that "[t]he most natural reading of the First Step Act's definition of' covered offense' is that 'the statutory penalties for which were modified by [certain sections of the Fair Sentencing Act]* refers to 'a Federal criminal statute' rather than 'a violation of a Federal criminal statute, '" and that this interpretation "is supported by the statutory background in which the First Step Act was enacted and which it incorporates." 2019 WL 6139017 at *8-9 (emphasis in original). The Fourth Circuit observed that "[t]here is no indication that Congress intended a complicated and eligibility-limiting determination at the 'covered offense' stage of the analysis," and therefore adopted a "simple interpretation of the statute": that "[a]ll defendants who are serving sentences for violations of 21 U.S.C. § 841(b)(1)(A)(iii) and (B)(iii), and who are not excluded pursuant to the expressed limitations in Section 404(c) of the First Step Act, are eligible to move for relief under that Act." Id. at *9.

         Paul is such a defendant.[7] At the time of Paul's offenses, the applicable statutory penalties were provided under 21 U.S.C. § 841(b)(1)(A)(iii), which was modified by the Fair Sentencing Act. None of the limitations in Section 404(c) of the First Step Act apply.[8] Paul's sentence was not previously reduced under the Fair Sentencing Act, [9] nor has he filed a previous First Step Act motion that was denied. The Court has reviewed the government's remaining arguments with respect to Paul's ...


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