United States v. Scales

          ORDER GRANTING MOTION TO REDUCE SENTENCE PURSUANT TO THE FIRST STEP ACT

          PATRICIA A. SEITZ UNITED STATES SENIOR DISTRICT JUDGE

         This CAUSE is before the Court on Defendant Andre Scales' pro se Motion for a Reduction of Sentence Pursuant to the First Step Act of 2018 [DE 1258, 1264]. The Government responded and the Defendant, through counsel, replied.^[1] Having considered the Parties' submissions [DE 1258, 1262, 1264, 1270, 1287], the legal authorities, the Presentence Investigation Report, oral argument [DE 1312] and the psychological evaluation of Dr. DiTomasso Ph.D., [DE 1307-1 sealed], the Court will grant the motion to reduce sentence.

         I. Background

         On May 7, 1996, a jury convicted Mr. Scales of three counts: Count 1-conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846; and, two substantive Counts 12 and 14-possession with intent to distribute a "mixture and substance containing a detectable amount of cocaine," in violation of 21 U.S.C. 841(a)(1) [DE 362]. The indictment did not specify the quantity of crack involved or the penalty provision applicable to 21 U.S.C. § 841 [DE 185]. The PSI, however, calculated the drug weight to be "in excess of 1.5 kilograms of cocaine base." (PSI ¶ 34).

         Using this drug weight, the PSI calculated Mr. Scales's base offense level as 38. (PSI ¶ 34); see U.S.S.G. § 2D 1.1(c)(1). That level increased two levels, to 40, because Scales possessed a firearm during the offense. (PSI ¶ 35); see U.S.S.G. § 2D1.1(b)(1). Scales was also found to be a career offender under U.S.S.G. § 4B1.1, which carries a level of 37, but his higher total offense level of 40 controlled. (PSI ¶ 40). Lastly, because of his career-offender status, Scales's criminal history category was set at VI. (PSI ¶ 65). The resulting sentencing guideline range was 360 to life, (PSI ¶ 101), but due to 5G1.1(c)(2), the applicable guideline sentence was life imprisonment.' Furthermore, all three counts carried a statutory mandatory minimum term of life imprisonment. (PSI ¶ 100). Also, prior to trial, the Government filed a Notice of Intent to Seek Enhanced Penalties pursuant to 21 U.S.C. § 851 based on Scales's prior conviction for possession of cocaine and two convictions for the sale of marijuana [DE 289].

         Scales has served more than 290 months in prison. During his incarceration, he has appealed and collaterally attacked his conviction consistently but unsuccessfully.^[2]

         II. Standard

         Once a court imposes sentence of imprisonment, it is considered a final judgment on the matter that generally may not be modified. 18 U.S.C. §§ 3582(b) & 3582(c)(1)(B). However, a court can modify a sentence where it is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B). Several Courts have held that 18 U.S.C. 3582(c)(1)(B) is the proper mechanism for a First Step Act Motion. See United States v. Wirsing, 943 F.3d 175 (4* Cir. 2019).^[3]

         The First Step Act ("FSA") made retroactive the 2010 Fair Sentencing Act, which reduced the hundred-to-one disparity in the treatment of crack and powder cocaine. Dell v. United States, 710 F.3d 1267, 1271 (11th Cir. 2013). Where a defendant is serving a sentence for an FSA "covered offense," the court is permitted, but not required to "impose a reduced 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." PL 115-391, December 21, 2018, 132 Stat 5194. A "covered offense" is defined as 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. Pertinent here, the Fair Sentencing Act increased the threshold amount of cocaine base needed to trigger the mandatory minimum sentences in 21 U.S.C. § 841 (b)(1)(A)(iii) and (B)(iii) from 50 grams to 280 grams for a 10-years-to-life sentence, and from 5 grams to 28 grams for a 5-years-to-forty-years sentence, respectively.

         III. Discussion

         A. The Parties' Positions

         The essence of Mr. Scales's argument is that Section 404 of the FSA applies to his offenses of conviction, as he has not sought prior relief under the FSA, and the Court has broad authority under the FSA and 18 U.S.C. § 3582(c)(1)(B) to impose a reduced sentence for crack cocaine offenses committed prior to 2010 to the extent otherwise expressly permitted by statute. Scales emphasizes that, unlike the limitations set forth in 18 U.S.C. § 3582(c)(2), under 3582(c)(1)(B), he is entitled to a plenary resentencing. Scales argues that in determining the drug quantity for purposes of assessing the statutory penalty, the Court is required to look only at what was charged under the indictment and proved to the jury, and not what the PSI stated. Thus, Scales argues that he is not subject to a mandatory life sentence because the Indictment in this case did not charge, and the jury did not find that the offense involved 280 grams or more of crack cocaine. [DE 1264 at 8].

         Mr. Scales asserts that if his sentence were imposed today, his offense level as a career offender would be 34, U.S.S.G. § 4B1.1(b)(2), and with his criminal history of category VI, his advisory Guidelines' range would be between 235-293 months.^[4] Mr. Scales has been in federal custody since October 11, 1995 and has served approximately 290 months' imprisonment. Defendant thus contends that because he has already served nearly twenty-five years for offenses that would, under today's law will yield a much lower sentence, the Court should impose a sentence of time served and order his immediate release.

         The United States opposes the motion arguing that the PSI and the Court, relying on the PSI, determined that the actual weight of the narcotics involved in Mr. Scales' offenses of conviction was in excess of 1.5 kilograms of cocaine base, and that he met the criteria for a career offender pursuant to USSG 4B1.1. The United States maintains that his statutory mandatory minimum sentence of life and the statutory minimum term of 10 years supervised release was correct.

         The Government further contends that had. Section 2 of the Fair Sentencing Act been in effect at the time of Mr. Scales's sentencing, it would have had no impact on his sentence because Scales received the statutory mandatory minimum term of life, and there would have been no change to his guideline range, his sentencing range or his career offender base offense level [DE 1262 at 5].

         B. Basis for Court's Determination

         The Court concludes that the First Step Act applies to this case. First, the law authorizes a court to modify a sentence where it is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B). The Defendant seeks relief under the First Step Act, a statute, rather than section 18 U.S.C. § 3582(c)(2), which applies to changes to the sentencing range by the Sentencing Commission. By its express language, the Court's authority to resentence a defendant is broader under section (c)(1)(B), and is not limited by the Sentencing Guidelines.

         Second, although not addressed in the Government's written or oral response to the Defendant's Motion, Apprendi v. New Jersey,530 U.S. 466 (2000), and Alleyne v. United States,570 U.S. 99 (2013), are applicable.^[5] Before Apprendi and Alleyne, the Eleventh Circuit held that the weight or quantity of a controlled substance is not an element of an offense, so the indictment need not allege the weight or quantity. United States v. Perez,960 F.2d 1569, 1574 (11th Cir. 1992). Apprendi and Alleyne changed that judge-made rule by requiring any fact which increases the statutory maximum penalty (Apprendi) or minimum penalty (Alleyne) for a crime to be proved to a jury beyond a reasonable doubt. United States v. McKinley,732 F.3d 1291, 1296 (11th Cir. 2013). The Eleventh Circuit has not addressed whether Apprendi and Alleyne apply in a First Step Act case, and Courts within and outside this district have split on the question.^[6] Recently, the undersigned considered Apprendi and Alleyne in granting a First Step Act reduction to one of Mr. Scales's co-defendants, United States u. Harris, No. ...