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United States v. Howard

United States District Court, N.D. Illinois, Eastern Division

April 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW HOWARD, Defendants.

          MEMORANDUM OPINION AND ORDER

          HARRY D. LEINENWEBER, JUDGE.

         For the reasons stated herein, Petitioner Andrew Howard's (“Howard”) Motion for Relief under 18 U.S.C. § 3582(c)(2) [ECF No. 1131] is denied.

         I. BACKGROUND

         Howard seeks to reduce his sentence from a term of mandatory life to 324 months. Howard's asserted bases for relief are twofold. First, he says that Amendment 782 to the Sentencing Guidelines lowered the guideline range under which he was sentenced, making him eligible for a sentence reduction. Second, he brings the Court's attention to facts indicating that he would “present[] no threat or risk to any one” upon release. These include his advanced age, poor health, exemplary disciplinary record, completion of rehabilitative programs while incarcerated, and available familial support outside of prison.

         The Government opposes Howard's Motion for Relief. It points out that Howard was sentenced as a high-ranking member of a street gang that the Seventh Circuit has called “large and vicious.” See, United States v. Hoover, 246 F.3d 1054, 1056-57, 1062 (7th Cir. 2001) (affirming Howard's conviction and sentence). The Government further reminds the Court that as a member of the board of directors of the Gangster Disciples, Howard was indicted on a number of drug distribution and conspiracy charges. Specifically, Count II of the indictment charged him with being part of a Continuing Criminal Enterprise (“CCE”) in violation of 21 U.S.C. § 848(a), while other counts of the indictment charged him with illegal distribution of controlled substances (the “drug crimes”). The jury, after a three-month trial, convicted Howard on both the CCE and drug charges.

         The Court sentenced Howard in 1999. See, ECF No. 603. In so doing, the Court adopted the factual findings from the Presentence Investigation Report (the “PSR”). It thus found that Howard “was a Board Director of the Gangster Disciples, ” a position “at the highest level of management in the gang with the exception of Larry Hoover [the gang's leader].” ECF No. 1163 (Gov't Resp.) at 2; see also, United States v. Smith, 223 F.3d 554, 560-61 (7th Cir. 2000) (laying out the organizational structure of the Gangster Disciples); Hoover, 246 F.3d at 1057 (calling Howard “the third of the gang's ‘directors'”). Moreover, the Court found that the drug conspiracy in which Howard was a director had annual revenues in excess of $100 million, “a figure that translated to approximately 4.5 kilograms of crack cocaine, or 15 kilograms of powder cocaine, being sold on a daily basis.” ECF No. 1163 at 2; see also, United States v. Wilson, 237 F.3d 827, 831 (7th Cir. 2001) (affirming the findings made by this Court regarding drug types and quantities).

         Based on these facts, the Court concluded that Howard's base offense level for the drug crimes was 38, the highest level under the Sentencing Guidelines. The Court further concluded that Howard was subject to mandatory life imprisonment on the CCE conviction. Although Howard was charged and convicted by the jury of violating 21 U.S.C. § 848(a), which permitted but did not require a life sentence, the Court imposed a mandatory life sentence under 21 U.S.C. § 848(b). Section 848(b) increased the statutory minimum sentence from 20 years under § 848(a) to mandatory life where: (1) the defendant was “one of several [] principal administrators, organizers, or leaders” of the continuing criminal enterprise, and (2) the enterprise “received $ 10 million dollars in gross receipts during any twelve-month period of its existence, ” or transacted at least (as is relevant for this case) 1.5 kg of crack cocaine or 150 kg of powder cocaine. See, 21 U.S.C. § 841(b)(1)(b) (1999); 21 U.S.C. § 848(a)-(b). Since the Court found that Howard was a director of the Gangster Disciples and that the organization distributed more than 1.5 kg of crack cocaine every day and 150 kg of powder cocaine every 10 days, it ruled that the conditions exposing Howard to a mandatory lifetime term of imprisonment under § 848(b) were satisfied and sentenced him accordingly.

         On this record, the Government argues that Howard is ineligible for a sentence reduction for two reasons. First, Howard's post-sentence conduct is irrelevant because changes to the Sentencing Guidelines have not lowered his base offense level of 38. Second, regardless of what happens to the base level, Howard was sentenced to life for the CCE offense and this sentence stands independent of any offense level calculation. For the reasons detailed below, the Court must agree with the Government.

         II. ANALYSIS

         Howard brings this Motion under 18 U.S.C. § 3582(c)(2). This section of the penal code provides federal courts with limited authority to reduce a sentence of imprisonment after it has been imposed. See, 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 819 (2010). It states,

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . ., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The text of the statute thus makes clear that the Court may reduce the term of imprisonment only where “such a reduction is consistent with applicable policy statements.” Id. As the Sentencing Commission explains, it is against the applicable policy to grant relief where a relied-upon change to the Guidelines - in this case, Amendment 782 - either (1) does not apply to the defendant, or (2) “does not have the effect of lowering the defendant's applicable guideline range because of the operation of another . . . statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” 18 U.S.C. App. § 1B1.10 n.1(A).

         The Court considers whether it is authorized to grant Howard a sentence reduction given these prerequisites.

         A. Applicability of the Amendment to the ...


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