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United States of America v. Tunji Kincaid

September 14, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TUNJI KINCAID, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Monday, 17 September, 2012 08:59:31 AM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on Defendant Tunji Kincaid's pro se Motions for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 51, 53) and his "Leave to Request the Court to Take Judicial Notice of Defendant's Letter in Response to Chief Public Defender July 19, 2012's Letter and Motion to Withdraw as Counsel" (Leave Motion) (d/e 54).

Because Defendant was sentenced as a career offender, he is not eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2). Therefore, Defendant's Motions (d/e 51, 53) are DISMISSED for lack of subject- matter jurisdiction and Defendant's Leave Motion (d/e 54) is DENIED AS MOOT.

FACTS

In April 1999, Defendant pleaded guilty to possession of cocaine base (crack) with the intent to distribute. 21 U.S.C. §841(a)(1)). In the Presentence Investigation Report (PSR), Defendant was held accountable for 12.4 grams of crack, which subjected him to a statutory term of ten years to life. 21 U.S.C. § 841(b)(1)(B) (1998). The PSR also found that Defendant was a career offender. See PSR, p. 6, ¶ 24; U.S.S.G. § 4B1.1(a). Based on an offense level of 34 and a criminal history category of VI, Defendant's sentencing guideline range was 262 to 327 months' imprisonment. PSR, p. 24, ¶ 78. At the August 1999 sentencing hearing, the Court adopted the PSR and sentenced Defendant to 282 months' imprisonment. See Judgment (d/e 29); August 6, 1999 Minute Entry.

On July 12, 2012, Defendant filed a pro se Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 51).

Pursuant to Administrative Order 11-MC-2042, this Court appointed the Federal Defender to represent Defendant on his Motion.

On July 19, 2012, Jonathan E. Hawley, Chief Public Defender, moved to withdraw as counsel for Defendant (d/e 52). Hawley concluded Defendant was ineligible for a reduced sentence pursuant to the retroactive amendment to the crack cocaine guideline because (1) none of the statutory changes made by the Fair Sentencing Act applied to Defendant's case because Defendant was sentenced on August 9, 1999, before the Fair Sentencing Act became law; and (2) Defendant was sentenced as a career offender.

On July 23, 2012, Defendant filed an Amended Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 53). On July 25, 2012, this Court granted Hawley leave to withdraw and granted Defendant until September 4, 2012 to supplement his motion or file a new motion for a reduced sentence.

On September 4, 2012, Defendant filed his Leave Motion (d/e 54). Defendant attached to the Leave Motion a July 19, 2012 letter from Hawley to Defendant, explaining Hawley's opinion that Defendant was ineligible for a reduction under the retroactive crack amendment, and Defendant's July 24, 2012 response to Hawley, asking Hawley to reconsider his request to withdraw or, in the alternative, to modify or correct the reasons Hawley requested to withdraw.

ANALYSIS

The Fair Sentencing Act of 2010, amending 21 U.S.C. § 841(b)(1), reduced the disparity between sentences involving crack and powder cocaine by raising the amounts of crack mandating minimum prison sentences. See Pub. L. No. 111-220, 124 Stat. 2372; see also 21 U.S.C. § 841(b()1); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010). The Fair Sentencing Act does not apply retroactively. Bell, 624 F.3d at 814. Therefore, none of the statutory changes ...


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