Opinion
Case No.: CR-2-89-184.
October 28, 2008
ORDER
This matter is before the Court on Defendant Leon Lewis's pro se Motion to Modify his Sentence pursuant to 18 U.S.C. § 3582(c)(1), in light of the United States Sentencing Guidelines § 1B1.10 Amendment 706 and pursuant to 18 U.S.C. § 3553(A) and (B), and U.S.S.G. § 5K2.0 (Doc. 95). This Motion was filed on March 14, 2008. At the same time, Defendant filed a Motion for Appointment of Counsel (Doc. 96). On March 20, 2008, the Government and the Federal Public Defender filed a Joint Motion to Stay a ruling on Defendant's Motion to allow time for both parties, in conjunction with the Probation Department, to review Defendant's case prior to the Court ruling on the merits of Defendant's Motion (Doc. 98). The joint motion was granted on March 31, 2008. Then, on April 4, 2008, Defendant filed an Objection to Respondent's Motion to Stay Petitioner's Motion for Reduction of Sentence (Doc. 100). The Government has filed its response and Defendant's Motions are now ripe for review.
Pursuant to this Court's General Order No. 08-03 filed February 22, 2008, the United States Attorney's office, the Federal Public Defender, and the Probation Department conducted a review of potential defendants who may be eligible for sentence reductions under the retroactivity provision of 18 U.S.C. § 3582(c). Defendant Lewis's case has been reviewed and the Government responds that Defendant's Motion for Reduction of Sentenced should be denied because his case did not involve cocaine base ("crack"), and he was not sentenced pursuant to the portions of U.S.S.G. § 2D1.1 that were altered by Amendment 706. The Probation Department, however, agrees with Defendant that there was some ambiguity as to whether an unknown quantity of cocaine base (crack) may have been considered by the Court for purposes of determining the applicable sentencing guideline range.
Defendant was charged with 11 counts of drug related offenses, including, but not limited to, conspiracy to distribute and possess with intent to distribute over five kilograms of cocaine, maintaining a place for the unlawful storage and manufacturing of cocaine and cocaine base, travel in interstate commerce to promote, manage and carry on a business enterprise involving narcotics, laundering of money instruments and distribution of cocaine. Defendant was sentenced to 293 months imprisonment and 5 years supervised release based on an offense level 38 (base offense level 34 plus a 4 level role adjustment) and criminal history category I.
Defendant argues that his sentence was based on his involvement with crack. Defendant references that during his trial, the witnesses referred to crack as evidence. Further, Defendant cites to this Court's record from Defendant's sentencing hearing on June 30, 1990, in which the court recognized that Mr. Lewis was involved in the manufacturing and distribution of crack.
The Court has reviewed the Presentence Report prepared in this case, discussed this case with the Government and the Probation Department, as well as reviewed the Judgment and Commitment Order. While the actual calculation of the drugs under § 2D1.1 of the United States Sentencing Guidelines was not based on crack or cocaine base, there is no question that Defendant's illegal drug activities involved the manufacture and sale of crack. The Court recognized this at the time of sentencing:
First and foremost, Leon Curtis Lewis has been convicted of possessing and distributing a minimum of 13 kilograms in the Columbus, Ohio area — cocaine, that is. The defendant traveled in interstate commerce on frequent occasions in order to purchase and assist in the transport of large quantities of cocaine. Mr. Lewis engineered an extensive network of kilogram quantity suppliers in California and Florida in order to purchase cocaine for further distribution purposes. The defendant also employed drug runners to pick up, and ultimately transport these large quantities of drugs. Mr. Lewis was actively involved in the manufacturing of the highly addictive and often times deadly drug, cocaine base, better known as crack. Further, he employed numerous individuals to distribute these drugs in the Columbus area to crack houses. Mr. Lewis has established a large scale cocaine distribution ring which continued for nearly 3 years.
(Tr. IX-61).
The Court therefore finds that both cocaine and crack were considered for computing Defendant's base offense level of 34 and were also relied upon for sentencing purposes. Defendant therefore qualified for consideration of a reduction under 18 U.S.C. § 3582(c)(2) and Amendment 706. Whether to grant a reduction of sentence pursuant to § 3582(c)(2) is within the discretion of the court. United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997). Although a defendant may qualify for a reduction in sentence, a reduction is not automatic. See United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) ("The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary."). In considering whether a reduced sentence is appropriate, this court must consider the factors in 18 U.S.C. § 3553(a) to the extent that they are applicable. See § 3582(c)(2).
Upon consideration of Defendant's motion and that statutory sentencing factors set forth in § 3553(a), the Court concludes that a reduction of Defendant's term of incarceration is appropriate in light of the reduction in the applicable guideline range and the Court's reliance on Defendant's involvement with crack at sentencing. The Court has considered the need to protect the public from further crimes of the Defendant as urged by the Government and concludes that even with the reduction in sentence, Defendant has been incarcerated for a very lengthy period of time (over 19 years), which has protected the public and has provided the necessary rehabilitation to hopefully prevent Defendant from committing future crimes.
Defendant's inmate record shows he has completed over fifty general educational courses in the following subjects: law, accounting, Spanish, management, economics, math, marketing, and English. Defendant has completed programs such as: business communication, principles of marketing, relapse and recovery, customer service skills, sales and marketing, credit advice, AIDS awareness, release readiness/employment, stress management and community information/resources. Defendant has also completed numerous physical activity programs including wellness seminars, basketball, aerobics and basketball referee classes. Defendant has also been involved in numerous drug programs. Defendant is currently participating in a resident drug treatment program which began in August of this year.
During the nineteen years Defendant has been incarcerated, he has only had three minor incidents, including using phone or mail without authorization, possession of unauthorized item, and being in an unauthorized area. Defendant has been incident free for over 8 years.
The Court therefore finds that Defendant is entitled to a reduction of his sentence pursuant to § 3582(c)(2). The Court will therefore reduce Defendant's total offense level by 2 levels from a 38 to a 36. Defendant did not have any prior criminal convictions, so he remains at a criminal history category I. The new corresponding advisory sentencing guideline range is 188 to 235 months. Considering Defendant was sentenced at the top of the original guideline range, the Court will again impose the top of the range and sentence Defendant to 235 months. The sentence of 293 months incarceration previously imposed in this case is hereby reduced to a term of incarceration of 235 months. Therefore, Defendant's Motion for Reduction of Sentence is GRANTED.
The reduced term of imprisonment ordered pursuant to § 3582(c)(2) may not be less than the term of imprisonment the Defendant has already served. See United States Sentencing Guidelines § 1B1.10(b)(2)(C). Therefore, if the reduction of months ordered in this case is greater than the amount of time remaining to be served by the Defendant prior to the Defendant's release date, then the Defendant's sentence will be reduced by the amount of time remaining until Defendant's release date, in other words, to time served. The Probation Officer has informed the Court that if the two-level reduction is granted, Defendant will be entitled to time served. The Probation Officer and the Court, however, are concerned with immediate release of Defendant from being incarcerated for over 19 years. Therefore, in an effort to assist Defendant is readjusting to society, a brief period of community confinement would be beneficial. The Court therefore orders three months community confinement as a condition of supervised release. This order of community confinement is contingent upon the Defendant's agreement for such modification of the conditions of supervised release. The Probation Officer has consulted with Defendant and he has agreed to the community confinement which is attached to this order. Defendant is therefore sentenced to time served and shall be released on community confinement on November 7, 2008.
The stay in this case has been lifted as the Court has ruled on Defendant's Motion for Reduction of Sentence, therefore, Defendant's Objection to the Stay is now MOOT.
Defendant has also filed a Motion for Appointment of Counsel, however, there is nothing pending before the Court for which Defendant needs counsel. Therefore, Defendant's Motion for Appointment of Counsel is DENIED.
The Clerk shall remove Documents 95, 96, and 100 from the Court's pending motions list.