United States v. Deft. 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
) Criminal No. 02-162
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EARLDY STEPHENSON, ) F I L E
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Defendant. ) g 5 ibt
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MEMORANDUM OPINION
Before the Court is defendant Earldy Stephenson"s Motion [l99] to Further Reduce
Sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706, Motion [215] to Reduce
Sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750, and Motion [225] for Hearing
on defendant’s Motions to Reduce Sentence. Upon consideration of defendant’s motions [l99,
215] to Reduce Sentence, the government’s Partial Opposition [218], defendant’s Reply [218],
the government’s Sur-Reply [222], defendant’s Response to the government’s Sur-Reply [224],
defendant’s Motion for Hearing [225], the entire record herein, the applicable law, and for the
reasons set forth below, defendant’s motions to reduce his sentence will be GRANTED in part
and DENIED in part, and his motion for a hearing will be DENIED. Defendant’s sentence will
be reduced to a term of 168 months imprisonment, but all other relief will be denied.
I. BACKGROUND
In 2002, pursuant to a written plea agreement, defendant pled guilty to Conspiracy to
Distribute and Possess With Intent to Distribute 5,000 Grams or More of Cocaine, 50 Grams or
More of Cocaine Base, and Marijuana, in violation of2l U.S.C. §§ 846, 84l(a)(l), and
84l(b)(l)(A)(iii). Presentencing Investigation Report ("PSR") {Hl l-Z, Am. Nov. 1, 2002; Am. J.
& Commitment Order l, ECF No. 107. Defendant was convicted of an intent to distribute a total
of 1 .5 kilograms of cocaine base, 5 kilograms of cocaine hydrocholoride, and 2.5 kilograms of
marijuana, which, when converted to its marijuana equivalency, yielded a total of 3 l,002.5
kilograms of marijuana PSR 11 3, 26. After applicable adjustments, defendant’s guideline
range was 262 to 327 months imprisonment (total offense level 37; criminal history category III).
Am. J. 6. The conviction also carried a statutory mandatory minimum sentence of 10 years.
PSR ‘ll 2. On February 6, 2003, the Honorable Ricardo M. Urbina, pursuant to United Slales v.
Smith,l departed downward from the bottom of the guideline range by 42 months and sentenced
defendant to 220 months imprisonment and 60 months supervised release. Am. J. 2-3, 6;
Gov’t’s Partial Opp’n, 2, Oct. 19, 2011, ECF No. 2l6.
Since defendant was sentenced, the United States Sentencing Commission
("Commission") has twice amended the Sentencing Guidelines ("Guidelines") to lower the base
offense levels for crack cocaine offenses. See Dillon v. United States, 130 S. Ct. 2683, 2688
(20l0). In 2008, Amendment 706 retroactively lowered defendant’s applicable guideline range
from 262 to 327 months to 210 to 262 months imprisonment (offense level 35, criminal history
category II). USSG § 2Dl.l (2008). Defendant filed a motion to reduce sentence, and judge
Urbina, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706, reduced defendant’s sentence
to 172 months-38 months below the then-amended guideline range. Def.’s Mot. Retroactive l,
ECF No. 198; Order l, ECF No. 201. One month later, defendant filed a motion to further
reduce his sentence to the statutory mandatory minimum of 120 months, but that motion was
held in abeyance and has not been ruled upon. Def.’s Mot. Further Reduce l-2, ECF No. l99;
Mot. Abeyance l, ECF No. 212; Order on Abeyance l, ECF No. 213.
l 27 F.3d 649 (D.C. Cir. 1994) (holding that a downward departure from a recommended guideline range may be
appropriate if defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his
confinement).
ln 2010, Congress lowered the statutory mandatory minimum sentences for crack cocaine
offenses in the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372. In
2011, the Commission responded to the FSA and issued Amendment 750, which again
retroactively lowered defendant’s applicable guideline range from 210 to 262 months to 168 to
210 months (offense level 33, criminal history category III). See USSG § 1B1.10(c), cmt. n.4
(2012); Dep’t of Just. Manual Comment 9-27.710A.
ln light of these developments, defendant filed a new motion seeking a further reduction
of his sentence to time served. Mot. Reduce 1-2, ECF No. 215. Defendant argues he is entitled
to a reduced sentence of time served because such a reduction would mirror his original
sentence, which included al42-month downward departure from the then~applicable guideline
range. Id. The government does not oppose a sentence reduction to 168 months
imprisonment-the bottom of the amended guideline range--but does oppose any further
reduction, arguing that section 1B1.10(b)(2) of the Guidelines does not permit this Court to
reduce defendant’s sentence below the bottom of the amended range.z Gov’t’s Partial Opp’n 1,
9, Oct. 19, 2011, ECF No. 216. Defendant’s Reply challenges the validity of section
1B1.10(b)(2) as recently amended, claiming the section may not lawfully be applied because it
violates the Sentencing Reform Act and separation of powers principles, and because it was
amended and promulgated without properly adhering to the Administrative Procedures Act’s
("APA") notice-and-comment requirements. Def.’s Reply, 3, Oct. 26, 2011, ECF No. 218. The
government rejects defendant’s contentions and maintains that section 1B1.10(b)(2) is binding
2 In 201 1, the Commission adopted Amendment 759, which amended section 1B1.10(b) of the Guidelines. See
United States v. Anderson, 2012 WL 2673106, at *2 (7th Cir. 2012). Prior to its 2011 amendment, section
1B1.10(b) gave judges discretion to reduce a sentence below the amended guideline range only if the defendant had
received a comparable downward departure from the then-applicable guideline range when originally sentenced.
USSG § 1B1.l0(b)(1)(B) (2007). Section 1B1.10(b) now permits a departure below the bottom of the amended
range only when an original departure was granted pursuant to a g0vemment motion to reflect the defendant’s
substantial assistance to authorities USSG § 1B1.10(b)(2)(A)-(B) (2012).
on this Court, pointing to defendant’s failure to cite any opinion by any court adopting any of his
arguments. Gov’t’s Sur-Rep., 1~2, Nov. 17, 2011, ECF No. 222.
II, ANALYSIS
A. Defendant ’s Eligz'bilz``ly for a Reduced Sentence Pursuant lo § 3582(c) (2).
Federal courts generally do not have authority to modify a sentence once it has been
imposed, but this rule of finality is subject to a few narrow exceptions-including a statutory
exception under 18 U.S.C. § 3582(¢)(2). Freeman v. United Slates, 131 S. Ct. 2685, 2690-91
(201l) (citing 18 U.S.C. § 3582(c)). Section 3582(c)(2) gives a district court jurisdiction and
discretion to reduce a defendant’s sentence if the defendant’s sentence was "based on" a
Guidelines sentencing range that has been subsequently lowered by the Sentencing Commission,
and if such a reduction is "consistent with applicable policy statements issued by the Sentencing
Commission" in section 1B1.10 ofthe Guidelines. 18 U.S.C. § 3582(0)(2); USSG § 1B1.10. 1n
2010, the Supreme Court affirmed in Dillon v. United States that, by the plain language of §
3582(0)(2), section 1B1.10’s policy statements are binding on federal courts. 130 S. Ct. 2683,
2687 (2010). Section 1B1.10(b) prohibits a court from reducing a defendant’s sentence to a term
"less than the minimum of the amended guideline range." USSG § 1B1.10(b)(2)(A). The only
exception to this prohibition is when the original downward departure was made "pursuant to a
government motion to reflect the defendant’s substantial assistance to authorities." USSG §
1B1.l0(b)(2)(B) (2012).
Because defendant’s original sentence was "based on" a Guidelines range, and because
the applicable amended range under Amendment 750 is retroactive per section 1B1.10 of the
Guidelines, defendant is eligible for a sentence reduction pursuant to § 3582(0)(2). USSG §
1B1,10; 18 U.S.C. § 3582(c)(2). Amendment 750 reduces defendant’s applicable sentencing
range to 168 to 210 months (offense level 33, criminal history category III). Pursuant to
1B1.10(b), the greatest sentence reduction defendant is eligible for is 168 months because his
original downward departure was not given pursuant to a government motion to reflect the
defendant’s substantial assistance to authorities. See USSG § 1B1.10(b)(2)(B).
Granting a sentence reduction is within the court’s discretion, but in order to determine
whether a reduction is warranted, § 3582(0)(2) and section 1B1.10 of the Guidelines require the
court to consider several specific factors. Dillon, 130 S. Ct. at 2692; USSG § 1B1.10 cmt.
n.l(B)(i). First, a court must consider how the amended guideline range would have been
applicable to the defendant if the range had been in effect at the time the defendant was
originally sentenced. USSQ § 1B1.10(b)(1). Second, § 3582(c)(2) requires the court to consider
factors set forth in 18 U.S.C. § 3553(a) to the extent each factor is applicable.3 18 U.S.C. §
3582(0)(2); USSG § 1B1.10 cmt. n.6. A court may also consider the defendant’s post-sentencing
conduct and the negative effect a sentence reduction may have on the community. USSG §
1B1.10 cmt. n.l(B)(ii)~(iii).
The defendant insists that his sentence be reduced to time served. However, precedent is
clear: this Court is prohibited by section 1B1.10(b)(2) from reducing defendant’s sentence to
time served. USSG § lB1.10(b)(2)(A)~(B); Dillon, 130 S. Ct. at 2690~92. As the government
3 In relevant part:
(a) . . . The court, in determining the particular sentence to be imposed, shall consider-
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner; . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; . . . .
18 U.S.C. § 3553(2¢\)(1)~(2),(6).
does not oppose a sentence reduction to 168 months imprisonment, and as no evidence has been
brought to this Court’s attention to discourage such a reduction, this Court is willing to reduce
defendant’s sentence to 168 months imprisonment. Thus, defendant’s motions to reduce
sentence to time served must be denied. However, because the government does not opposed a
sentence reduction of 168 months imprisonment, this Court will reduce defendant’s sentence to
168 months imprisonment.
B. Sentencing Reform Act Violalion Claim
Defendant contends that section 1B1.10(b) as amended is invalid and should not be
applied in his case because 1B1.10(b)’s terms violate the Sentencing Reform Act ("SRA") by
"interfer[ing]" with the original sentence’s departures or variances-a power Congress did not
grant to the Commission. Def.’s Reply 5-8. Defendant is unable to cite any authority adopting
this position; indeed, to this Court’s knowledge, every circuit to consider defendant’s argument
has upheld section 1B1.l0(b)’s validity. See, e.g., United Slales v. Berberena, 694 F.3d 514,
523-26 (3d Cir. 2012); United Stares v. Horn, 679 F.3d 397, 401, 404-09 (6th Cir. 2012); United
States v. Harris, 688 F.3d 950, 957 (8th Cir. 2012) ("Every circuit that has considered [the
argument] has held that ‘[the] statutory provisions [in 28 U.S.C. § 994 and 18 U.S.C. §
3582(c)(2)] are a sufficient delegation’ of Congress’s authority to the Sentencing Commission.");
United Slates v. Garcia, 655 F.3d 426, 434-35 (5th Cir. 201 1).
The Sentencing Reforrn Act of 1984 created the Sentencing Commission as an
independent agency within the judicial branch, and the Commission derives its authority from
the Act. See Mz'srretta v. United States, 488 U.S. 361, 362, 368 (1989); 28 U.S.C. § 99l. The
Commission has specific authority to limit sentence reductions pursuant to three statutory
provisions: 24 U.S.C. §§ 994(a), 994(u), and 18 U.S.C. § 3582(0)(2). Slrain, 2012 WL 5690573,
at *2 (3d Cir. Nov. 16, 2012). Section 994(u) of the Sentencing Reform Act requires the
Commission to specify to what extent sentences may be reduced based on retroactive
amendments, § 994(21)(2)(€) requires that this specification be in the form of a policy statement,
and 18 U.S.C. § 3582(c)(2) makes those policy statements binding. Id. (citation omitted).
Section 1B1.10(b) of the Guidelines was amended pursuant to § 994(u) of the Sentencing
Reform Act, in which Congress granted the Commission the authority to "specify in what
circumstances and by what amount . . . sentences . . . may be reduced." 28 U.S.C. § 994(u); see
Berberena, 694 F.3d at 520. ln 2011, when the Commission amended section 1B1.10(b) to
prohibit a sentence reduction below the amended guideline range (except when the original
departure was pursuant to a government motion under section 5K1.1 of the Guidelines), the
Commission was indicating "by what amount" sentences may be reduced on the basis of
retroactive amendments. Id. at 520. Thus, the Commission’s amendment to section 1B1.10(b)
fell well within its statutory authority, as the Commission specified "the circumstances and by
what amount" a sentence may be reduced. Ia'. at 526; 28 U.S.C. § 994(u).
Nowhere in the SRA does Congress require the Commission to ensure that a sentence
reduction mirror the departures or variances of the original sentence, nor does Congress require
the Commission to give judges any tools of departure or variance to use when reducing a
sentence. Berberena, 694 F.3d at 521; see also Horn, 678 F.3d at 401-02. In United States v.
Anderson, the Eighth Circuit considered whether the Commission lacked authority to “interfere
with the structure of the district court’s sentence” by preventing a court from applying downward
departures and variances imposed at the initial sentencing, as defendant presently argues. 686
F.3d 548, 549 (8th Cir. 2012). The court found that such an argument was "unconvincing" and
noted that the Supreme Court had indicated that a sentence reduction under § 3582(c)(2) is not a
"plenary resentencing" but instead operates as "a narrow exception to the rule of finality" that
"permits a sentence reduction within the narrow bounds established by the Commission." Id. at
589 (citing Dillon v. United Stales, 130 S. Ct. 2683, 2692, 2694 (2010)). The unfettered judicial
discretion that defendant seeks to preserve is at odds with the plain language of 28 U.S.C. §§
994(u), 994(a), and 18 U.S.C. § 3582(0)(2), which is indicative of Congress’s explicit intent. See
Berberena, 694 F.3d at 522. Thus, section 1B1.10(b) as amended does not violate the
Sentencing Reform Act, and defendant’s contention is without merit.
C. Administrative Procedures Act Violation Clairn
Defendant also claims that section 1B1.10(b) as amended violates "bedrock principles of
administrative law" because the Commission’s policy statement that amended 1B1.10(b) is
binding on courts despite the fact that it was not promulgated subject to the Administrative
Procedures Act’s ("APA) notice-and-comment requirements. Def.’s Reply 12-16. Again,
defendant is unable to cite any authority adopting this position, and to this Court’s knowledge,
every circuit to consider defendant’s argument has upheld section 1B1.10(b)’s validity against an
APA challenge. See, e.g., United States v. Johnson, 2013 WL 163482, at *2-3 (8th Cir. Jan. 16,
2013); Berberena, 694 F.3d at 525-27; Horn, 679 F.3d at 403-07; Fox, 631 F.3d 1128, 1131
(9th Cir. 201 1).
ln the SRA, Congress explicitly placed the Commission in the judicial branch, 28 U.S.C.
§ 991(a) (establishing the Commission "as an independent commission in the judicial branch of
the United States"), and the Supreme Court later approved of the Commission’s location.
Mistretta, 488 U.S. at 391. Because the Commission is an agency within the judicial branch, it is
not required to abide by the APA. Berberena, 694 F.3d at 526; 5 U.S.C. § 70l(a)-(b)(1)(B).
Further, Congress has explicitly stated that the Commission is not subject to the APA’s notice-
and-comment requirements when issuing policy statements. ]a’.; Johnson, 2013 WL 163482, at
*2 (citing S. Rep. No. 98-225 at 180-81 (1983), reprinted in 1984 U.S.C.C.A.N. 312, 3363-64);
see also Wash. Legal Found. v. United States Sentencing Comm ’n, 17 F.3d 1446, 1450 (D.C. Cir.
1994). Even if the Commission’s policy statements were subject to the APA, defendant’s
contention would still be moot because it was Congress, not the Commission, that made section
1B1.10 binding, and Congress is certainly not subject to the APA. Berberena, 694 F.3d at 527;
see also Horn, 679 F.3d at 404 ("Section 3582(c)(2) says nothing about a district court’s
obligation to follow the Commission’s guidelines regarding retroactivity[,]" which are subject to
the APA, "it only mentions policy statemenls[,]" which are explicitly not subject to the APA;
thus, it is Congress’s authority that makes the policy statements binding.).
Moreover, even though the Commission’s policy statements are not subject to the APA’s
notice-and-comment requirements, the Commission still solicited public views about
1B1.l0(b)’s limitation on sentence reductions and announced its decision to make the limitation
more stringent after a public hearing on the issue. Berberena, 694 F.3d at 525 (citing 76 Fed.
Reg. 24960 (May 3, 2011); U.S. Sentencing Comm'n, Public Meeting Minutes (June 30, 201l),
available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_
Hearings_and__Meetings/20110630/Meeting_Minutes.pdf.). Thus, this Court agrees with its
sister circuits and finds that the Commission was not required to comply with the APA’s notice-
and-comment requirements when it issued the binding policy statements that amended section
1B1.10(b) of the Guidelines.
D. Separation of Powers Vz``olation Claim
Finally, defendant challenges the validity of section 1B1.10(b) as amended on the
premise that the amendment to 1B1.10(b) violates separation of powers principles because it was
promulgated by a policy statement that was binding like a guideline," but which, unlike a
guideline, was not subject to either the notice-and-comment requirements of the APA or the 180-
day notice period for Congress’s review,§ resulting in a usurpation of legislative power to make
law, a usurpation of judicial authority to craft sentences, and a lack of political accountability.
Def.’s Reply 11-27. Again, defendant fails to cite any authority adopting this position, and to
this Court’s knowledge, every circuit to consider defendant’s argument has rejected it. See, e.g.,
Johnson, 2013 WL 163482, at *2; Berberena, 694 F.3d at 525-27; H0rn, 679 F.3d at 404-09;
Fox, 631 F.3d at 1131.
The nondelegation doctrine, rooted in the separation of powers principle that underlies
our tripartite system of government, generally prevents Congress from delegating its legislative
power to another branch. Berberena, 694 F.3d at 523 (citation omitted). However, a delegation
of legislative power is permissible if Congress "lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [exercise that delegated authority] is directed
to conforrn." Id. (citing omitted). Further, Congress need not expressly authorize every exercise
of such delegated authority, as the Supreme Court has "uphe1d . . . Congress’s ability to delegate
power under broad standards." Id. (citation omitted). The intelligible principle is "easily met,"
and the Supreme Court in Mistretta found that Congress had appropriately "delineate[d] the
general policy, the public agency which is to apply it, and the boundaries of this delegated
authority" when it gave the Commission its authority-including its power under 28 U.S.C. §
994(u) to limit the extent of sentence reductions. ld. at 524 (citing Misiretla, 488 U.S. at 373).
The Supreme Court also noted that all of the Commission’s members were subject to presidential
4 Amendments to section 1B1.10(b), though policy statements, are binding on courts pursuant to 28
U.S.C. §§ 994(a)(2) and 994(u) Dillon, 130 S. Ct. at 2687-2692.
5 Only guidelines are required to abide by the APA’s requirements 28 U.S.C. § 994(x); see United States
v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991); Wash. Legal Founcl., 17 F.3d at 1450.
10
removal, the members included individuals who were not part of the judiciary, and the
Commission’s power was limited by Congress’s ability to revoke or amend the guidelines and
policy statements "at any time," preventing the Commission from usurping legislative or judicial
authority as well as ensuring accountability to Congress. Anderson, 686 F.3d at 590 (citing
Mistretta, 488 U.S. at 393-94). The Mistretta Court concluded that even though the
Commission’s policy statements are not subject to either the 180-day waiting period or the
APA’s notice-and-comment requirements, the Commission’s authority does not violate
separation of powers principles because the Commission is an independent agency subject to the
will ofCongress. Id. at 525; see also Horn, 679 F.3d at 404~09; Fox, 631 F.3d at 1131.
Though section 1B1.10(b) constrains judges’ discretion when entertaining § 3582(0)(2)
motions to reduce sentences, it was C0ngress, not the Commission alone, that bound courts to
the limitations in section 1B1.10(b), and Congress has the authority to restrict the judiciary’s
discretion in fashioning sentences as is evidenced by 18 U.S.C. § 3583(c)(2). Berberena, 694
F.3d at 525; see also United States v. Sapp, 2012 WL 3594226, at *2 (3d Cir. Aug. 22, 2012)
("[T]he language of § 3582(0)(2) itself explicitly cabins a court’s discretion by requiring it to
follow the ‘applicable policy statements’ of the Sentencing Commission."). Further, §
3582(0)(2) does not require a district court to grant a sentence reduction, but leaves it in the
discretion of each district court to determine whether a reduction is warranted in whole or in part
under the particular circumstances of the case. Johnson, 2013 WL 163482, at *5. Thus, a
sentence reduction pursuant to § 3582(c)(2) is merely a benefit and not some protected
entitlement. Id. Therefore, the Commission clearly is not constraining judicial authority in
violation of the separation of powers. See ia’.
11
Because Congress validly delegated authority to the Commission to make policy
decisions pursuant to an "intelligible principle," drafted the statute that made those policy
decisions binding on the courts, and retained the power to legislate over the policy decisions, the
amendment to section 1B1.10(b) of the Guidelines does not violate separation of powers
principles and is applicable to defendant’s case. See Berberena, 694 F .3d at 525.
III. CONCLUSION
For the foregoing reasons defendant’s Motion [225] for Hearing on defendant’s Motion
to Reduce Sentence is DENIED, and defendant’s Motions [199, 215] to Reduce Sentence are
GRANTED in part and DENIED in part. Defendant’s sentence will be reduced to a tenn of 168
months imprisonment. A separate Order consistent with this Memorandum Opinion shall issue
this date. l
Signed Royce C. Lamberth, Chief Judge, on February /_€, 20l3.
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