Gardner v. United States
| Decision Date | 10 December 2021 |
| Docket Number | 4:95-CR-41-D, No. 4:21-CV-34-D |
| Citation | 579 F.Supp.3d 770 |
| Parties | Dushawn L. GARDNER, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of North Carolina |
On May 2, 2019, Dushawn Levert Gardner ("Gardner" or "petitioner") moved pro se for a sentence reduction under the First Step Act of 2018 ("First Step Act"), Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 [D.E. 1006]. On November 20, 2019, Gardner moved to amend his section 404 motion [D.E. 1023]. On March 19, 2021, Gardner moved pro se to vacate, set aside, or correct his multiple life sentences under 28 U.S.C. § 2255 [D.E. 1109]. On April 7, 2021, Gardner's case was reassigned to the undersigned. On May 17, 2021, Gardner moved to amend his section 2255 motion and moved for the appointment of counsel [D.E. 1115, 1115-2]. On June 16, 2021, the United States moved to dismiss Gardner's section 2255 motion [D.E. 1127]. On June 17, 2021, the court sent a letter to Gardner notifying him of the motion to dismiss, the consequences of failing to respond, and the response deadline [D.E. 974]. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). On July 15, 2021, Gardner moved to strike the government's motion to dismiss and responded to the government's arguments [D.E. 1136]. On November 30, 2021, Gardner filed a motion asking the court to consider supplemental authority related to his motion to strike [D.E. 1138]. As explained, the court grants in part Gardner relief under the First Step Act, grants in part the government's motion to dismiss, grants in part Gardner's section 2255 motion, and vacates one of Gardner's convictions. Nonetheless, Gardner (a murderer and racketeer) shall remain in prison for the rest of his life.
Gardner was the leader of a multi-year racketeering operation that smuggled large quantities of crack cocaine into North Carolina. See United States v. Celestine, et al., 43 F. App'x 586, 589–90 (4th Cir. 2002) (per curiam) (unpublished); see also Presentence Investigation Report ("PSR") [D.E. 900] ¶¶ 9–45. With an associate, Gardner oversaw the operations of at least 25 people, and under Gardner's leadership, he and his organization murdered three people and attempted to murder a fourth. See Celestine, 43 F. App'x at 589–90 : PSR ¶¶ 31–45. One of Gardner's murder victims was Roneka Jackson, "a mother of one of his children." Celestine, 43 F. App'x at 589.
On August 1, 1996, a grand jury charged Gardner with racketeering (count one), conspiracy to participate in a pattern of racketeering (count two), conspiracy to distribute and possess with the intent to distribute cocaine and crack cocaine (count three), conspiracy to commit murder in aid of racketeering (counts four and eight), murder in aid of racketeering (count five), carjacking resulting in death and aiding and abetting (count six), using and carrying a firearm during and in relation to a crime of violence causing death and aiding and abetting (counts seven and nine), conspiracy to kidnap (count ten), and kidnapping resulting in death and aiding and abetting (count eleven). See [D.E. 309]. On November 12, 1996, a jury convicted Gardner of all eleven counts. See [D.E. 525]. On March 11, 1997, the court sentenced Gardner to life imprisonment on counts one, two, three, five, six, seven, nine, ten, and eleven and to concurrent terms of 120 months’ imprisonment on counts four and eight See [D.E. 545]. Gardner appealed. See [D.E. 554]. On August 9, 2002, the United States Court of Appeals affirmed Gardner's convictions and sentence. See Celestine, 43 F. App'x at 598. The Supreme Court denied Gardner's petition for a writ of certiorari. See Gardner v. United States, 537 U.S. 1061, 123 S.Ct. 644, 154 L.Ed.2d 546 (2002).
Since his convictions became final, Gardner has filed numerous unsuccessful motions seeking various forms of relief. See, e.g., [D.E. 680, 705, 787, 798, 820, 899, 957]. On March 19, 2021, the Fourth Circuit authorized Gardner to file a successive section 2255 motion to determine whether the Supreme Court's decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), affects Gardner's conviction and sentence for counts seven and nine. See [D.E. 1108].
Gardner seeks relief under the First Step Act. On August 3, 2010, Congress enacted the Fair Sentencing Act of 2010 ("Fair Sentencing Act"), Pub. L. No. 111-220, 124 Stat. 2372 (). Section 2 of the Fair Sentencing Act reduced statutory penalties by increasing the drug quantities necessary to trigger certain statutory minimums and maximums. For example, the amount of crack cocaine necessary to trigger a 5 to 40 year sentence increased from 5 to 28 grams. Likewise, the amount of crack cocaine necessary to trigger a 10 year to life sentence increased from 28 grams to 280 grams. See id., § 2, 124 Stat. at 2372.
The First Step Act makes the Fair Sentencing Act's reductions in mandatory minimum sentences apply retroactively to defendants who committed their "covered offense" of conviction before August 3, 2010. See First Step Act § 404(a), 132 Stat. at 5222. Section 404(a) defines "covered offense" 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 ..., that was committed before August 3, 2010." Id. Under the First Step Act, "[a] court that imposed a sentence for a covered offense may ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." Id. § 404(b), 132 Stat. at 5222. A court that modifies a sentence under the First Step Act does so under 18 U.S.C. § 3582(c)(1)(B), which allows a court to "modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B) ; see United States v. Lancaster, 997 F.3d 171, 174–76 (4th Cir. 2021) ; United States v. Collington, 995 F.3d 347, 353 (4th Cir. 2021) ; United States v. Woodson, 962 F.3d 812, 815–17 (4th Cir. 2020) ; United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020) ; United States v. Wirsing, 943 F.3d 175, 183 (4th Cir. 2019) ; United States v. Alexander, 951 F.3d 706, 708 (6th Cir. 2019). If a defendant qualifies, a court may consider a motion for a reduced sentence only if the defendant did not previously receive a reduction pursuant to the Fair Sentencing Act and did not have a motion under the First Step Act "denied after a complete review of the motion on the merits." First Step Act § 404(c), 132 Stat. at 5222.
Under the First Step Act, the district court adjusts the advisory sentencing guideline calculations "as if the current lower drug offense sentences were in effect at the time of the commission of the offense." United States v. Curry, 792 F. App'x 267, 268 (4th Cir. 2020) (per curiam) (unpublished) (quotation omitted); see Chambers, 956 F.3d at 671–72. "Nothing in ... section [404 of the First Step Act]," however, "shall be construed to require a court to reduce any sentence pursuant to this section." First Step Act § 404(c), 132 Stat. at 5222; see, e.g., Collington, 995 F.3d at 357–58 ; United States v. Gravatt, 953 F.3d 258, 261 (4th Cir. 2020) ; Wirsing, 943 F.3d at 184–86 : United States v. Barnes, No. 3:94cr80 (DJN), 2020 WL 1281235, at *3–4 (E.D. Va. Mar. 17, 2020) (unpublished): United States v. Latten, No. 1:02CR00011-012, 2019 WL 2550327, at *1–4 (W.D. Va. June 20, 2019) (unpublished), aff'd, No. 19-7018, 2021 WL 5150049 (4th Cir. Nov. 5, 2021) (per curiam) (unpublished). Nonetheless, a district court must reduce the sentence to comply with any new statutory maximum. See Collington, 995 F.3d at 356–58.
Gardner's 1996 conviction on count three for conspiracy to distribute and possess with the intent to distribute crack cocaine (count three) is a covered offense under section 404(a) of the First Step Act because the Fair Sentencing Act modified the statutory penalties for crack cocaine and Gardner committed the offense before August 3, 2010. See First Step Act § 404(a), 132 Stat. at 5222; United States v. McDonald, 986 F.3d 402, 404 (4th Cir. 2021) . At sentencing, the court conservatively held Gardner responsible for 11.49 kilograms of crack cocaine. See PSR ¶ 45.1 Nonetheless, under Collington, the Statutory maximum for Gardner's conviction on count three is 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C) ; Collington, 995 F.3d at 356–58. Gardner's offense level remains 43; his criminal history category remains I, and his advisory guideline range on all counts other than counts three, four, and eight remains life imprisonment. See PSR ¶¶ 66–116.2 Moreover, Gardner faces a mandatory life sentence on count five. See 18 U.S.C. § 1959(a)(1) ; PSR ¶ 112. Thus, even before considering Gardner's section 404 motion on the merits, any sentence reduction on count three would not affect Gardner's total sentence.
The court has completely reviewed the entire record, Gardner's arguments, the advisory guideline range, and all relevant factors under 18 U.S.C. § 3553(a). See Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1966–68, 201 L.Ed.2d 359 (2018) ; Collington, 995 F.3d at 356–60 ; Chambers, 956 F.3d at 671–75 ; United States v. May, 783 F. App'x 309, 310 (4th Cir. 2019) (per curiam) (unpublished). In deciding whether to reduce Gardner's sentence on count three, the court finds that Gardner engaged in extraordinarily serious criminal behavior that included leading a high-volume drug trafficking enterprise, murdering three people, and attempting to murder a...
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