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United States v. Razz

United States District Court, S.D. Florida

June 21, 2019

UNITED STATES OF AMERICA,
v.
RONALD RAZZ, Defendant.

          ORDER DENYING MOTION FOR RECONSIDERATION OF DENIAL OF REDUCTION IN TERM OF SUPERVISED RELEASE UNDER THE FIRST STEP ACT (D.E. 166) AND AMENDING ORDER DENYING MOTION TO REDUCE SENTENCE UNDER THE FIRST STEP ACT (D.E. 165)

          JOAN A. LENARD UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendant Ronald Razz's Motion for Reconsideration of Denial of Reduction in Term of Supervised Release Under the First Step Act, (“Motion, ” D.E. 166), filed May 29, 2019. The Government filed a Response on June 12, 2019, (“Response” D.E. 171), to which Defendant filed a Reply on June 13, 2019, (“Reply, ” D.E. 172). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.

         I. Background

         Defendant was charged by Second Superseding Indictment with maintaining a place for the manufacture, distribution, and use of crack cocaine, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2 (Count One); possessing with intent to distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (Count Two); and possessing with intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count Three). (D.E. 51.) This case was originally assigned to United States District Judge Kenneth L. Ryskamp.

         On January 30, 2006, the Government filed and served upon Defendant an Information pursuant to 21 U.S.C. § 851[1] stating that it intended to seek an enhanced statutory penalty under Section 841 based upon six prior state court convictions for felony drug offenses.[2] (D.E. 101.) Defendant later filed a response to the Information challenging the Section 851 enhancement. (D.E. 115.)

         On February 1, 2006, a jury found Defendant guilty of Counts One, Two, and Three. (See Jury Verdict, D.E. 110; Trial Tr., Feb. 1, 2006 at 601:10-21.)[3] The jury further found that the offense charged in Count Two involved at least 50 grams of crack cocaine, and that the offense charged in Count Three involved at least 5 grams of crack cocaine. (See Jury Verdict at 1; Trial Tr., Feb. 1, 2006 at 601:10-21.)

         Prior to sentencing, the United States Probation Office prepared a revised Presentence Investigation Report (“PSR”) finding that Defendant's offenses involved 142.2 grams of crack cocaine. (PSR ¶¶ 15, 23.) Relevant here, the PSR found that the offense charged in Count Two involved 100.2 grams of crack cocaine, (id. ¶¶ 10-11), and the offense charged in Count Three involved 10 grams of crack cocaine, (id. ¶ 9). Based on the 142.2 grams of crack cocaine, Defendant's base offense level was 32 pursuant to the drug quantity tables in United States Sentencing Guideline (“U.S.S.G.”) 2D1.1(a)(3) (2005), which provides that an offense involving at least 50 grams but less than 150 grams of cocaine base has an offense level of 32. (Id. ¶ 23.)

         The PSR further found that because Defendant was over eighteen years old and had at least two prior convictions for controlled substance offenses, [4] he qualified as a Career Offender under U.S.S.G. § 4B1.1. (Id. ¶ 29.) As to Counts Two and Three, because the statutory maximum penalty under 21 U.S.C. § 841(b)(1)(A) & (B) with the Section 851 enhancement was life imprisonment, pursuant to Section 4B1.1(b)(1) Defendant's offense level was 37. (Id. ¶¶ 29, 98.) Because his career offender offense level under Section 4B1.1 was greater than his drug quantity offense level under Section 2D1.1, the career offender offense level applied. (Id. ¶ 29 (citing U.S.S.G. § 4B1.1)[5].) The PSR further found that because Defendant had 18 criminal history points, he had a criminal history category of VI. (Id. ¶ 64.) Based on a total offense level of 37 and a criminal history category of VI, Defendant's guideline imprisonment range was 360 months to life. (Id. ¶ 99.)

         However, as to Count Two, Defendant was subject to a statutory mandatory minimum life sentence based upon the Section 851 enhancement. (See id.) Specifically, as to Count Two, Defendant was sentenced under 21 U.S.C. § 841(b)(1)(A), which provides, in pertinent part: “If any person commits a violation of this subparagraph . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence.” Pursuant to U.S.S.G. § 5G1.1(c)(2), the Court may impose a sentence “at any point within the applicable guideline range, provided that the sentence . . . is not less than any statutorily required minimum sentence.” Because Count Two carried a statutorily-required minimum sentence of life, Defendant's guideline imprisonment range was life. (PSR ¶ 99.)

         On April 14, 2006, Judge Ryskamp adopted the revised PSR and imposed a sentence of life imprisonment, consisting of concurrent terms of 240 months as to Count One, life imprisonment as to Count Two, and 360 months as to Count Three. (See Sentencing Hr'g Tr. at 8:1, 10:9-23; Judgment, D.E. 119 at 2.) Judge Ryskamp also imposed a total term of ten years' supervised release, consisting of concurrent terms of three years as to Count One, ten years as to Count Two, and eight years as to Count Three. (Judgment at 3.)

         On September 28, 2008, the Eleventh Circuit issued its Mandate affirming Defendant's convictions and sentence. (Mandate, D.E. 138.)

         Defendant filed an application for executive clemency, which President Barack Obama granted on October 6, 2016. (D.E. 152.) The Clemency Order commuted Defendant's sentence to a total of 360 months' imprisonment, leaving intact the terms of supervised release and all other conditions imposed by Judge Ryskamp. (Id. at 3; see also Am. Judgment, D.E. 153.)

         On November 21, 2016, the Clerk reassigned this case to the undersigned judge. (D.E. 155.)

         On April 18, 2019, Defendant filed a Motion to Reduce Sentence under the First Step Act and Motion for Appointment as Counsel. (D.E. 158.) In his Reply in support of the Motion, Defendant acknowledged that “[r]eductions under the First Step Act are governed by [18 U.S.C.] § 3582(c)(1).” (D.E. 164 at 3.) On May 22, 2019, the Court entered an Order granting the motion to the extent that it requested the appointment of the Federal Public Defender, but denying the motion in all other respects. (D.E. 165.)[6]Initially, the Court found that Defendant's convictions for Counts Two and Three are “covered offenses” for purposes of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, because: (1) the offenses were committed prior to August 3, 2010; and (2) the statutory penalty for the convictions for Count Two and Three are contained in 21 U.S.C. § 841(b)(1)(A) & (B), respectively, which were modified by Section 2 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. (Id. at 13.) However, the Court concluded that Defendant was not eligible for a sentence reduction:

The Court finds that because Defendant remains accountable for 100.2 grams of crack cocaine as to Count Two, remains a Career Offender, and remains subject to a Section 851 enhancement, he is not entitled to a sentence reduction under Section 3582(c)(1)(B). Applying Section 2 of the Fair Sentencing Act retroactively, Defendant's conviction in Count Two would now fall under Section 841(b)(1)(B) because he is accountable for 28 grams or more of crack cocaine but less than 280 grams. Based upon the Section 851 enhancement, the statutory range of imprisonment under Section 841(b)(1)(B) is 10 years to life.
Defendant's conviction in Count Three would now fall under Section 841(b)(1)(C) because Count Three involved a Schedule II controlled substance, but in an insufficient quantity to trigger the Section 841(b)(1)(B) penalties. Based upon the Section 851 enhancement, the statutory range of imprisonment under Section 841(b)(1)(C) is 0 to 30 years.
The application notes to Section 4B1.1 instruct that “[i]f more than one count of conviction is of a . . . controlled substance offense, use the maximum authorized term of imprisonment for the count that has the greatest offense statutory maximum.” U.S.S.G. § 4B1.1 cmt. n.2 (2005). Here, Count Two carries the greatest offense statutory maximum. Because the maximum statutory term of imprisonment for Count Two remains life imprisonment, as a Career Offender the Defendant's offense level is still 37, his criminal history remains at Criminal History Category VI, resulting in the guideline range of 360 months to life imprisonment. See U.S.S.G. § 4B1.1. Because Defendant's commuted sentence of 360 months' imprisonment is at the bottom of the new guidelines range, he is not entitled to a reduced sentence under Section 3582[(c)(1)(B)]. Cf. United States v. Randell, 724 Fed.Appx. 848, 851 (11th Cir. 2018) (holding that the defendant was not entitled to further reduction of his sentence after executive order of clemency, which reduced his sentence to 360 months, based on intervening amendments to sentencing guidelines that reduced base offense levels to crack cocaine offenses, because the defendant was sentenced as a career offender under U.S.S.G. § 4B1.1, and therefore his guideline range was not affected by the amendments to the drug quantity table in Section 2D1.1).
Assuming arguendo that Defendant is otherwise eligible for a variance below the bottom of the guidelines and commuted sentence of 360 months, the Court exercises its discretion not to grant a variance based on his disciplinary history while incarcerated. (See D.E. 161-1; Prob. Resp. at 4.)

(Id. at 20-22.) Defendant has appealed the Court's Order. (D.E. 167.)

         On May 29, 2019, Defendant filed the instant Motion for Reconsideration, arguing that the Court failed to consider whether he was entitled to a reduced term of supervised release under the First Step Act. (D.E. 166.)

         II. Legal Standard

         Defendant does not identify the legal mechanism for his motion for reconsideration. “[A] motion for reconsideration of a district court order in a criminal action is not expressly authorized by the Federal Rules of Criminal Procedure . . . .” United States v. Vicaria, 963 F.2d 1412, 1213 (11th Cir. 1992); see also United States v. Vives, 546 Fed.Appx. 902, 905 (11th Cir. 2013) (“Because no statute or Federal Rule of Criminal Procedure authorizes the filing of a motion for reconsideration in a criminal case, we affirm the denial of Vives's motion for reconsideration.”). And the Eleventh Circuit has expressly held that a criminal defendant cannot seek reconsideration of a criminal order under Federal Rule of Civil Procedure 60(b). United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998). “Although no statute or rule expressly provides for the filing of a motion for reconsideration in criminal cases, federal district courts necessarily have substantial discretion in ruling on motions for reconsideration.” United States v. Lepore, 1:15-cr-00367-WSD, 2016 WL 5110505, at *1 (N.D.Ga. Sept. 20, 2016) (quoting United States v. Snowden, CRIMINAL NO. 15-00134-CG-B, 2015 WL 5595767, at *1 (S.D. Ala. Sept. 21, 2015) (quoting United States v. Mason, No. 6:07-cr-52-Orl-19GJK, 2008 WL 1882255, at *1 (M.D. Fla. Apr. 24, 2008))). Courts exercising their discretion to entertain motions for reconsideration in criminal cases generally employ the standards underlying motions for reconsideration in civil cases. United States v. Kight, 1:16-cr-99-WSD, 2017 WL 5664590, at *1 n.3 (N.D.Ga. Nov. 27, 2017) (citing United States v. Torres, 1:06-cr-00351-WSD-1, 2017 WL 1405322, at *1 (N.D.Ga. Apr. 20, 2017); Lepore, 2016 WL 5110505, at *1)). “[T]here are three major grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369 (S.D. Fla. 2002). “[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly.” Id. at 1370.

         III. Relevant Law

         Pursuant to 18 U.S.C. § 3582(c), a “court may not modify a term of imprisonment once it has been imposed except” in certain circumstances defined by that statute. Relevant here, “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute . . . .” 18 U.S.C. § 3582(c)(1)(B).

         Under Section 404(b) of the First Step Act of 2018, the Court may “impose a reduced sentence as if sections 2 or 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, 132 Stat. 5194. Under Section 404(a), a “‘covered offense' means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” Id.[7]

         Section 2 of the Fair Sentencing Act modified the statutory penalties under 21 U.S.C. §§ 841(b)(1)(A) & (B).[8] See Pub. L. No. 111-220. Specifically, prior to the Fair Sentencing Act-and at the time of Defendant's sentencing-Section 841(b)(1)(A) provided, in relevant part, that any person who violates Section 841(a) in a case involving 50 grams or more of cocaine base:

shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life. . . . If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . . . [A]ny sentence under this subparagraph shall . . . if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment.

21 U.S.C. § 841(b)(1)(A)(iii) (2005). The Fair Sentencing Act increased the threshold amount of cocaine base to trigger the 10-year mandatory minimum sentence in Section 841(b)(1)(A)(iii) from 50 grams to 280 grams. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), abrogated on other grounds by Dorsey v. United States, 567 U.S. 260, 280-81 (2012).

         Similarly, prior to the Fair Sentencing Act-and at the time of Defendant's sentencing-Section 841(b)(1)(B) provided, in relevant part, that any person who violates Section 841(a) in a case involving 5 grams or more of cocaine base:

shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years. . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment. . . . [A]ny sentence imposed under this subparagraph shall . . . if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment.

21 U.S.C. § 841(b)(1)(B)(iii) (2005). The Fair Sentencing Act increased the threshold amount of cocaine base to trigger the 5-year mandatory minimum sentence in Section 841(b)(1)(B)(iii) from 5 grams to 28 grams. See Gomes, 621 F.3d at 1346. Notwithstanding the changes to the mandatory minimums, with a prior conviction for a felony drug offense that has become final, the ...


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