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United States v. Booker

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

June 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
REGINALD BOOKER, Defendant.

          OPINION AND ORDER

          Joan H. Lefkow Judge.

         Defendant Reginald Booker moves to reduce his sentence under § 404 of the First Step Act, Pub. L. 115-391, 132 Stat. 5194, § 404 (2018). The motion (dkt. 1536) is granted and Booker's custodial sentence is reduced to 120 months. All other terms of his original sentence remain in effect.

         BACKGROUND

         On January 27, 2009, Booker pleaded guilty to conspiracy knowingly and intentionally to distribute and possess with intent to distribute mixtures containing 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. (Dkts. 173, 482.) In the factual basis of his plea agreement, Booker admitted that "the total amount of drugs distributed by defendant and by defendant's coconspirators that was reasonably foreseeable to defendant through the course of the conspiracy was over 4.5 kilograms of cocaine base in the form of crack cocaine." (Dkt. 483 at 5.)

         On April 16, 2010, Booker appeared for sentencing. (Dkt. 855.) At that time, the offense to which Booker pleaded guilty carried a mandatory minimum of 10 years' imprisonment. 21 U.S.C. § 841(b)(1)(A). This court determined that Booker had a total offense level of 38 and a criminal history category of II, which resulted in a Guidelines sentencing range of 262-327 months, and sentenced Booker to a 160-month sentence of imprisonment and 5 years of supervised release. (Dkt. 855.)

         Congress later changed the cocaine sentencing ranges because they "imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine." Dorsey v. United States, 567 U.S. 260, 263, 132 S.Ct. 2321 (2012). The Fair Sentencing Act of 2010 increased the weight of crack cocaine required to trigger certain mandatory minimums. Id. at 264. Of importance here, the Fair Sentencing Act "increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum." Id. at 269. In other words, while an individual convicted of possessing 50 grams or more of crack cocaine previously faced a 10-year mandatory minimum, he must now possess more than 280 grams to trigger that minimum. Pub. L. 110-220, 124 Stat. 2372, § 2(a)(1) (2010). Similarly, where such an individual possesses in excess of 28 grams to 280 grams, the mandatory minimum is now 5 years. Id. § 2(a)(2).

         In 2018, Congress passed the First Step Act making the Fair Sentencing Act's crack cocaine sentencing ranges retroactively applicable to those convicted of qualifying crimes before 2010. Pub. L. 115-391, 132 Stat. 5194, § 404 (2018). Under the First Step Act, "[a] court that imposed a sentence for a covered offense may . . . impose a sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed." Id. § 404(b). A "covered offense" is "a violation of a Federal criminal statute," whose penalties the Fair Sentencing Act modified but was committed before August 3, 2010. Id. § 404(a). Congress imposed two limitations on relief: (1) if the defendant's sentence was already imposed or reduced under the Fair Sentencing Act and (2) if a court has already rejected the defendant's motion under the First Step Act. Id. § 404(c).

         On February 5, 2019, Booker moved pro se for relief under 18 U.S.C. § 3582 (or 28 U.S.C. § 2255)[1] and § 404 of the First Step Act. (Dkt. 1536.) The court appointed counsel, who supplemented his motion for a reduced sentence under § 404. (Dkt. 1551.)

         ANALYSIS

         I. Eligibility

         The government contends that Booker is not entitled to relief under the First Step Act because his actual offense conduct involved more than 4.5 kilograms of cocaine base, which satisfies and far exceeds both the original threshold of 50 grams and the amended threshold of 280 grams of cocaine base. Booker counters that it is not the underlying conduct that controls eligibility for relief, but the statutory weight charged in the indictment.

         To the court's knowledge, nearly every court to address the issue agrees with Booker- eligibility for relief under the First Step Act is determined by the amount charged in the indictment, not the amount admitted in the plea agreement or found at sentencing. See United States v. Martinez, No. 04-CR-48-20 (JSR), 2019 WL 2433660, at *3 (S.D.N.Y. June 11, 2019) (noting that most courts to address the issue have found eligibility to be determined by amount charged in indictment); see also, e.g., United States v. Dodd, 372 F.Supp.3d 795, 797 (S.D. Iowa 2019) (noting that "[t]he First Step Act. . . applies to offenses and not conduct"); United States v. Pierre, 372 F.Supp.3d 17, 22 (D.R.I. 2019) (noting that the court "should look to whether the offense of conviction was modified by the Fair Sentencing Act. . . [and] refrain from delving into the particulars of the record to determine how [a] specific defendant committed his or her offense of conviction, and how those facts would have hypothetically affected the charges brought against the defendant under the new statutory regime"); United States v. Powell, 360 F.Supp.3d 134, 139 (N.D.N.Y.2019) (holding defendant eligible for relief because "[t]he drug type and quantity used to set the statutory range under the First Step Act of 2018 is the quantity charged in the indictment and found by a jury beyond a reasonable doubt"); United States v. Allen, No. 3:96-cr-00149-RNC-3, 2019 WL 1877072, at *2-4 (D. Conn. Apr. 26, 2019) (finding eligibility determined by amount charged in indictment, not amount found at sentencing hearing); United States v. Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2-3 (W.D.N.Y.Mar. 6, 2019) (finding eligibility for relief under First Step Act determined by "the statute of conviction, not actual conduct"); United States v. Laguerre, No. 5:02-CR-30098-3, 2019 WL 861417, at *l(W.D. Va. Feb. 22, 2019) (holding defendant charged with offense involving 50 grams or more of crack but sentenced based on 1.5 kilograms of crack eligible for relief). But see United States v. Blocker, 4:07CR36-RH, 2019 WL 2051957, at *3-4 (N.D. Fla. Apr. 25, 2019) (finding that the "indictment-controls theory" misreads the statute and is demonstrably inconsistent with Congress's intent).

         As other district courts have concluded, this court finds that the phrase "violation of a Federal criminal statute," in the definition of a "covered offense" under section 404(a) of the First Step Act, refers to the amount charged in the indictment on which a defendant was convicted, not the amount admitted to in the plea agreement or otherwise attributed to him or her by judicial finding. In other words, "[u]nder the plain language of [Section 404], whether an offense is a 'covered offense' is determined by examining the statute the defendant violated." Davis, 2019 WL 1054554, at *3.

         Booker was thus sentenced for a "covered offense"-he pleaded guilty to violating a statute applicable to an offense involving 50 grams or more of crack cocaine, and the statutory penalty for this offense was modified by the Fair Sentencing ...


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