United States v. Jones ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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UNITED STATES OF AMERICA )
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v. ) Criminal Action No. 05-100-16 (RWR)
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JOSEPH JONES, )
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Defendant. )
______________________________)
MEMORANDUM ORDER
Defendant Joseph Jones moves pro se under 18 U.S.C.
§ 3582(c) for a reduction of his sentence for distributing crack
cocaine claiming that the sentencing guidelines range upon which
his sentence was based was later lowered and made retroactive to
his case by Amendment 750 to the U.S. Sentencing Guidelines
(“U.S.S.G.”). Pet. for Reduction of Sentence under the Fair
Sentencing Act of 2010 (“Def’s Mot. to Reduce”) at 1. The
government opposes Jones’ motion arguing that Jones is not
eligible for a reduced sentence under Amendment 750 because his
sentence was based upon his “career offender” status for which
the sentencing guidelines range was not lowered. Gov’t Opp’n to
Def.’s Pet. for Reduction of Sentence under the Fair Sentencing
Act of 2010 (“Gov’t Opp’n”) at 1, 4-5. Because the factors
under 18 U.S.C. § 3553(a) that must be considered in deciding
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Jones’ reduction motion were fully considered when Jones was
given his original sentence which reflected a downward departure
from the then-applicable sentencing range and do not weigh in
favor of reducing Jones’ sentence further, the motion will be
denied.
A jury found Jones guilty of two counts of unlawful
distribution of less than 5 grams of crack cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See Judgment, ECF No.
1269 at 1. The applicable guidelines range for Jones at the
time of sentencing was 324 to 405 months of imprisonment based
upon Jones’ status as a career offender under U.S.S.G. § 4B1.1
with an offense level of 36 and a criminal history category of
VI. See Jones’ Presentence Investigation Report (“PSR”) at
¶ 77; United States v. Ball et al., 962 F. Supp. 2d. 11, 13
(D.D.C. 2013) (“[Jones’] guidelines range was 324 to 405 months
imprisonment.”). However, the Court departed downward from the
applicable range to the range of 168 to 210 months represented
by an offense level of 31 and a criminal history category of V.
See 5/1/2008 Sentencing Tr., ECF No. 1281 at 52:2-12. The
departure resulted from concerns about the disparity between
crack cocaine and powder cocaine sentencing penalties at the
time, concerns about how the high criminal history category and
sentencing range overrepresented the gravity of his conviction
record and quantity of crack the jury found that he sold, and
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consideration of mitigating factors in his background. See id.
at 47:1-50:25; see also United States v. Jones, 744 F.3d 1362,
1366 (D.C. Cir. 2014) (“The court then . . . [departed] below
the Guidelines due to concerns about the overall severity of
punishments for crack offenses and considerations related to
Jones's background and crimes more particularly.”). Jones was
sentenced on May 1, 2008 to 180 months of imprisonment. Jones
appealed his sentence to the D.C. Circuit, which held that the
sentence did not violate Jones’ Sixth Amendment Rights. United
States v. Jones, 744 F.3d 1362, 1370 (D.C. Cir. 2014). Now,
Jones seeks to have his sentence reduced since the crack cocaine
sentencing penalties that were lowered after he was sentenced
have been made retroactive.
District courts may modify sentences only in limited
circumstances. Under 18 U.S.C. § 3582(c)(2), a district court
may modify a term of imprisonment
in 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 . . . , upon motion of the defendant . . .
after considering the factors set forth in section
3553(a) to the extent 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 Fair Sentencing Act of 2010 and
Amendment 750 to the sentencing guidelines lowered the
sentencing range for drug offenses involving crack cocaine.
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U.S.S.G. App. C., Vol. III, Amend. 750 (“Amend. 750”). However,
Amendment 750 states that crack cocaine sentences imposed
“pursuant to §§ 4B1.1 (Career Offender) and 4B1.4 (Armed Career
Offender) . . . result in sentencing guideline ranges that are
unaffected by a reduction in the Drug Quantity Table.” Id.
The parties divide principally over whether Jones is
eligible for a sentence reduction. The government argues that
Jones is ineligible under § 3582(c)(2) for a sentence reduction
in part because his sentence was not based upon a sentencing
range that has subsequently been lowered, a prerequisite to
modifying a sentence under § 3582(c). Rather, the government
asserts, Jones was sentenced based upon the sentencing range
that resulted from the application of the career offender
guideline adjustment, a range that has not been lowered. Gov't
Opp'n at 3. 1 According to the government, Jones' claim is
foreclosed by United States v. Tepper, 616 F.3d 583 (D.C. Cir.
2010), and United States v. Berry, 618 F.3d 13 (D.C. Cir. 2010).
Id. Tepper held that the “based on” language in 18 U.S.C.
§ 3582(c) “does not authorize a district court to reduce a
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1 The government misspeaks since Jones' sentence was not
based upon the applicable career offender sentencing guidelines
range of 324 to 405 months associated with an offense level of
36 and a criminal history category of VI. As is stated above,
Jones' sentence was based upon the sentencing range of 168 to
210 months associated with an offense level of 31 and a criminal
history category of V.
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career offender's term of imprisonment based on the Sentencing
Commission's amendments to the crack cocaine guidelines” where,
unlike here, the sentence was imposed within the applicable
career offender sentencing range. 616 F.3d at 585-588. And
Tepper does not erect an absolute bar preventing all career
offenders from seeking § 3582(c)(2) relief. Id. at 588 n.2.
The opinion notes that Tepper’s sentencing court did not impose
the original sentence below the applicable career offender
guidelines range, and then explains that when a sentencing court
imposes a sentence below the guidelines range and the guidelines
range is amended, the sentencing court may impose a new sentence
that is comparably below the amended guidelines range. Id.
(citing Dillon v. United States, 560 U.S. 817, 827 (2010)).
Nor does Berry seem to present an insurmountable hurdle to
Jones. Berry held that for a defendant who concededly was a
career offender but received an agreed-upon sentence under Fed.
R. Crim. P. 11(c)(1)(C) 2 below the career offender sentencing
range, the applicable guideline range for the purposes of a
§ 3582(c)(2) sentence reduction is the career-offender range.
Berry, 618 F.3d at 18. But Berry left open the possibility, by
explicitly declining to hold to the contrary, that a career
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2 The rule “allows the prosecutor and the defendant to agree
to a sentence that the district court must impose if it accepts
the plea.” Berry, 618 F.3d at 16.
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offender sentenced outside the career offender guideline range
was indeed sentenced under some guideline range that could be
subject to being lowered, which could make such a defendant
eligible to seek a reduction under § 3582(c). Id. at 16-17.
And Jones cites United States v. Cardosa, 606 F.3d 16 (1st Cir.
2010), which held that career offender status does not foreclose
a reduction in sentence when, as here, the original sentencing
judge bases a sentence upon a departure from the career offender
guidelines. 606 F.3d at 21; Def.’s Mot. to Reduce at 3.
There is no need to resolve the question of Jones’
eligibility under § 3582(c)(2) for a sentence reduction because
no sentence reduction is warranted here under the 18 U.S.C.
§ 3553(a) factors that § 3582(c)(2) requires a court to
consider. Those factors include, among others, “the nature and
circumstances of the offense,” “the history and characteristics
of the defendant,” “the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense,” “the need for
the sentence imposed to afford adequate deterrence to criminal
conduct,” and “the need to protect the public from further
crimes of the defendant.” See 18 U.S.C. § 3553(a).
At sentencing, the Court considered all of those factors
and others. Jones, along with at least twelve others, sold
crack cocaine in the Congress Park neighborhood of the District
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of Columbia from 1992 to 2005. See 5/1/2008 Sentencing Tr. at
50:7-13; PSR ¶¶ 6, 19-49. This drug trafficking endangered the
community and aided the addiction of an untold number of people
in the District of Columbia area. Jones also participated in a
variety of violent acts in furtherance of this concerted drug
trafficking activity. See 5/1/2008 Sentencing Tr. at 50:7-13,
51:1-2; PSR ¶¶ 41-43. However, as is stated above, the Court
also considered the unwarranted disparity between crack cocaine
and powder cocaine sentencing penalties, how the high career
criminal history category and sentencing range overrepresented
the gravity of Jones’ conviction record and quantity of crack
that the jury found Jones had sold, and mitigating factors in
Jones’ background. The Court found a downward departure to a
sentence of 180 months of imprisonment to be fair and just after
considering all § 3553(a) factors, fully anticipating that Jones
would heed the Court’s admonition to try to improve himself. He
has submitted evidence that he has commendably done so, although
that evidence does not warrant a further reduction of his
sentence. 3 Therefore, it is hereby
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3 These reasons yield the same result when construing this
pro se motion liberally, see, e.g., Brown v. Dist. of Columbia,
514 F.3d 1279, 1283 (D.C. Cir. 2008) (“‘[A] document filed pro
se is to be liberally construed[.]’” (quoting Erickson v.
Pardus, 551 U.S. 89 (2007)), as also seeking relief under later
reductions in the crack cocaine sentencing guidelines that were
made retroactive to Jones’ case. See U.S.S.G. Supp. to App. C.,
Amends. 782 and 788.
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ORDERED that Jones’ Petition for Reduction of Sentence
under the Fair Sentencing Act of 2010 [1531] be, and hereby is,
DENIED.
SIGNED this 16th day of March, 2015.
/s/
________________________
RICHARD W. ROBERTS
Chief Judge