U.S. v. Crowder

• Citation: 947 F.Supp. 1183
• Decision Date: 28 October 1996
• Docket Number: No. 1:92-cr-0079.,No. 1:96-cv-044.,1:92-cr-0079.,1:96-cv-044.
• Parties: UNITED STATES of America v. Michael CROWDER.
• Court: U.S. District Court — Eastern District of Tennessee

947 F.Supp. 1183

UNITED STATES of America v. Michael CROWDER.

No. 1:92-cr-0079.

No. 1:96-cv-044.

United States District Court, E.D. Tennessee, Southern Division.

October 28, 1996.

COPYRIGHT MATERIAL OMITTED

Leah J. Prewitt, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, TN, for plaintiff.

Michael Crowder, Atlanta, GA, pro se.

Carl K. Kirkpatrick, U.S. Attorney, E.D. Tenn., Knoxville, TN, for defendant.

MEMORANDUM

EDGAR, District Judge.

Defendant Michael Crowder ("Crowder") has made a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. He contends that his judgment of conviction and sentence under Count 2 of the indictment for violating 18 U.S.C. § 924(c)(1) should be vacated and set aside in light of the Supreme Court's decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Defendant argues that there was an insufficient factual basis to support his guilty plea for using or carrying a firearm during and in relation to a drug-trafficking crime. The government does not oppose the motion to vacate the Section 924(c) conviction.

The government contends that the sentence under Count 1 should be corrected to include an enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of the firearm. Crowder opposes having his sentence on Count 1 modified and recalculated for any reason.

After reviewing the record, the Court concludes that the Section 2255 motion will be GRANTED. The sentence on Count 2 will be VACATED. The defendant's sentence under Count 1 will be corrected and recalculated to include an enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).

I. Facts

A five-count indictment was issued charging Crowder with possessing crack cocaine with the intent to distribute and using or carrying firearms while trafficking in crack cocaine. Crowder entered into a plea agreement with the government whereby he agreed to plead guilty to Counts 1 and 2. Count 1 charged Crowder with possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). Count 2 charged that Crowder used and carried a firearm, a loaded .32 caliber pistol, during and in relation to the drug-trafficking offense in violation of 18 U.S.C. § 924(c).

The presentence investigation report contains the following summary of the relevant facts:

Sometime prior to July 26, 1991, Officer Darrell Turner of the Chattanooga Police Department received information from an informant that cocaine was being distributed from the residence at 315 West 37th Street in Chattanooga, Tennessee. Officer Turner initiated surveillance upon this residence, and over a two week period observed Michael Crowder and Roy Lane coming and going from this house. He also observed numerous known drug users going in and out of the house. After receiving word from an informant that the informant had observed cocaine for sale inside the house within the past 72 hours, Officer Turner obtained a search warrant. On July 26, 1991, officers of the Chattanooga Police Department executed the search warrant at 315 West 37th Street. Present at the residence were Michael Crowder, Roy Lane, and Mr. Crowder's former girlfriend Tabatha Hall. Lane had in his possession 6.1 grams of crack cocaine, and $3,193 in United States currency. Crowder had in his possession 3.4 grams of crack cocaine. When the police entered the house, they had observed that Crowder and Lane were in the process of exiting the living room and entering the kitchen. When the officers searched the living room area, they found an additional 8.9 grams of crack cocaine on a living room table. They found a loaded .32 calibre pistol in a closet in the living room.

Police officers subsequently interviewed the defendant's sister, Nanetta Crowder, in whose name 315 West 37th Street was leased. Ms. Crowder indicated that she allowed Michael Crowder and Roy Lane to distribute crack cocaine out of her apartment. In return, she received from Michael Crowder between $50 and $100 per month. She recalled that they had begun selling cocaine in the vicinity of her house in about January of 1991, and had begun using her house itself for their sales in about March of 1991. Ms. Crowder indicated that, although both men used her house, Michael Crowder and Roy Lane did not work together distributing drugs. She indicated that her brother Michael, who cut and sold crack out of her house, used the residence more frequently than did Mr. Lane. As to the firearm the police had seized from her living room closet, Ms. Crowder indicated that her brother Michael Crowder did know where the firearm was kept, and that she had seen him in possession of it.

The judgment of conviction was entered on October 22, 1992. The Court sentenced Crowder to 60 months imprisonment on Count 1 and 60 months on Count 2, to run consecutively, for a total term of 120 months imprisonment.

II. Analysis

A. Correction of Sentence and U.S.S.G. § 2D1.1(b)(1)

The government contends that if the Section 924(c) judgment of conviction is to be vacated, then defendant should be resentenced under Count 1 for violating 21 U.S.C. § 841(a)(1). The government wants the sentencing guidelines recalculated under Count 1 to include an enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during the drug-trafficking offense. A defendant can possess a firearm for purposes of sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) even though he did not use or carry the firearm in violation of 18 U.S.C. § 924(c). The Supreme Court and the Sixth Circuit have recognized that if a defendant is acquitted on a Section 924(c) charge or if a judgment of conviction for violating Section 924(c) is reversed on appeal, U.S.S.G. § 2D1.1(b)(1) can be applied to enhance a sentence on a drug-trafficking crime where the proof establishes that the defendant possessed a firearm. Bailey, ___ U.S. at ___, 116 S.Ct. at 509, 133 L.Ed.2d at 484; United States v. Hill, 79 F.3d 1477, 1486 n. 4 (6th Cir.1996); United States v. Baker, 91 F.3d 144, 1996 WL 382264, at 2-3 (6th Cir. July 5, 1996); United States v. Elder, 90 F.3d 1110, 1133 (6th Cir.1996); cf. United States v. McCall, 85 F.3d 1193, 1198 (6th Cir.1996); United States v. Duncan, 918 F.2d 647, 650 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991).

Although the parties and the Court use the term "resentencing," the more proper description of the relief to be granted on the Section 2255 motion is a correction of the sentence. The Court is not sentencing defendant again under FED.R.CRIM.P. 32. Instead, the Court will correct the sentence pursuant to Section 2255. When the Court uses the terms "resentence" and "resentencing," it means a correction or modification of the sentence under Section 2255 and not the sentencing procedures provided in Rule 32.

Defendant opposes the government's request for resentencing. He raises several arguments why he should not be resentenced on Count 1 under 28 U.S.C. § 2255 to enhance and increase his sentence pursuant to U.S.S.G. § 2D1.1(b)(1). The arguments fall into the following basic categories: (1) lack of jurisdiction; (2) double jeopardy; and (3) due process. The Court concludes that these arguments are without merit and the defendant's sentence under Count 1 should be corrected and enhanced.

1. Jurisdiction

Defendant first argues that his Section 2255 motion is limited in scope and only challenges the judgment of conviction and sentence under Count 2 based on the charge that he violated 18 U.S.C. § 924(c). In his Section 2255 motion, defendant does not expressly raise a question about and challenge the sentence imposed under Count 1 of the indictment. Thus, defendant argues that the Court lacks jurisdiction to reconsider and correct his sentence under Count 1.

Federal courts are courts of limited jurisdiction. They are empowered to decide only those cases authorized and defined in the United States Constitution which have been entrusted to them under a jurisdictional grant from Congress. Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, ___, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391, 395 (1994); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986); United States v. Blackwell, 81 F.3d 945, 946 (10th Cir.1996); Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994). Congress has authorized the federal courts to modify criminal sentences only in certain limited circumstances. The authority to change a sentence must derive from some federal statute or the FEDERAL RULES OF CRIMINAL PROCEDURE. Blackwell, 81 F.3d at 946-47; United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir.1994). With the exception of certain powers which fall within the rubric of "inherent powers," federal courts cannot act in the absence of statutory authority. Blackwell, 81 F.3d at 947; United States v. Hardage, 58 F.3d 569, 574 (10th Cir.1994). Sentences may be modified pursuant to 18 U.S.C. § 3582(c), 28 U.S.C. §§ 2255 and 2106, and FED.R.CRIM.P. 35. A district court does not have the inherent authority to resentence a defendant at any time. Blackwell, 81 F.3d at 949; United States v. Lewis, 862 F.2d 748, 750 (9th Cir.1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1169, 103 L.Ed.2d 227 (1989).

Defendant cites United States v. Henry, 709 F.2d 298, 308 (5th Cir.1988) (en banc), for the general proposition that where a sentence is illegal in part, the correct procedure is to strike and vacate only the illegal portion of the sentence and leave the rest undisturbed. However, Henry did not involve a motion for habeas relief brought pursuant to 28 U.S.C. § 2255. This Court does not consider Henry to be persuasive authority with regard to interpreting and applying Section 2255. Rule 35 and Section 2255 are not coterminous. United States v. Taylor, 768 F.2d 114, 119 (6th Cir.1985); United States v. Santora, 711 F.2d 41, 42 (5th Cir.1983)....