U.S. v. Ezell

• Decision Date: 03 March 2006
• Docket Number: No. CRIM.A.02-815.,CRIM.A.02-815.
• Parties: UNITED STATES of America v. Jamal EZELL
• Court: U.S. District Court — Eastern District of Pennsylvania

417 F.Supp.2d 667

UNITED STATES of America v. Jamal EZELL

No. CRIM.A.02-815.

United States District Court, E.D. Pennsylvania.

March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Jeffrey Whitt, U.S. Attorney's Office Joan E. Burnes, U.S. Attorney's Office, Philadelphia, PA, for the U.S. Government.

Christopher Warren, Esq., Philadelphia, PA, for Defendant, Jamal Ezell.

MEMORANDUM

DUBOIS, District Judge.

I. INTRODUCTION

On December 17, 2002, a federal grand jury sitting in the Eastern District of Pennsylvania returned a twelve count Indictment charging Mr. Jamal Ezell with interference with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951, and aiding and abetting, in violation of 18 U.S.C. § 2 (Counts 1, 3, 5, 7, 9, and 11), and carrying and using a firearm during a crime of violence and aiding and abetting in violation of 18 U.S.C. §§ 924(c) and (2) (Counts 2, 4, 6, 8, 10, and 12). The charges arise out of six robberies in and around Philadelphia, Upper Darby, and Upper Merion Township, Pennsylvania between March 5, 2002 and March 20, 2002. Mr. Ezell was twenty-one years old at that time. On May 6, 2005, a jury found Mr. Ezell guilty on all counts of the Indictment.

Mr. Ezell now appears before the Court for sentencing. This Memorandum does not address any sentencing issues relating to defendant's convictions of Hobbs Act robbery. In this Memorandum, the Court focuses only on what the Court considers to be the unduly harsh sentence required by 18 U.S.C. § 924(c) (using and carrying a firearm during a crime of violence).

A first conviction under 18 U.S.C. § 924(c) for carrying and using a firearm in furtherance of a crime of violence provides, inter alia, for a mandatory consecutive sentence of at least five years imprisonment. The penalty for that crime is increased to a mandatory consecutive sentence of at least seven years imprisonment if the defendant brandishes the firearm. In the case of second or subsequent convictions under § 924(c), a defendant faces, inter alia, a mandatory consecutive sentence of at least 25 years imprisonment for each conviction.

The Indictment charged in Count 2 (the first § 924(c) charge) that Mr. Ezell carried and used a firearm in furtherance of a crime of violence, and the jury found him guilty of that offense, which requires a consecutive sentence of at least five years imprisonment. Nevertheless, the Government argues that, under § 924(c), the Court must sentence Mr. Ezell to seven years imprisonment on Count 2, because the trial evidence established that he brandished a firearm, or aided and abetted the brandishing of a firearm, in furtherance of the robbery underlying Count 2. In addition, the Government argues that the Court must sentence Mr. Ezell to consecutive twenty-five year terms of imprisonment on each of Counts 4, 6, 8, 10, and 12, for a total sentence of 132 years on Counts 2, 4, 6, 8, 10, and 12.

Mr. Ezell challenged the imposition of the 132-year sentence pro se by raising constitutional claims under the Eighth Amendment, separation of powers principles, and the Due Process Clause; he further claims that the 132-year mandatory minimum sentence misconstrues § 924(c). See "Brief of Defendant Addressing the Constitutionality of Mandatory Minimum Sentences Under Federal Law" (Document No. 153, filed August 4, 2005). Defense counsel supplemented the pro se claims by arguing that § 924(c) is not binding in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See "Defendant's Sentencing Memorandum" (Document No. 171, filed February 14, 2006).

In addition to examining Mr. Ezell's challenges, the Court must address the question of whether it can engage in judicial fact-finding with respect to Count 2, and specifically, whether it can find that Mr. Ezell brandished a firearm, or aided and abetted the brandishing of a firearm, during the robbery underlying Count 2. Such a finding would increase the mandatory consecutive sentence from five years (the sentence for carrying and using the firearm) to seven years (the sentence for brandishing the firearm) on Count 2. The Court first turns to this question, and then addresses the significant issues related to the imposition of the sentence as a whole.

II. JUDICIAL FACT-FINDING THAT IMPACTS A MANDATORY CONSECUTIVE SENTENCE

With respect to the brandishing issue in Count 2, the Court concludes that it can engage in judicial fact-finding on the ground that, where a mandatory consecutive sentence under § 924(c) is challenged post-Booker, a sentencing court must follow the Supreme Court's decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In Harris, the Supreme Court concluded that judicial fact-finding that increases a statutory mandatory minimum sentence under § 924(c) is appropriate where a jury verdict has authorized the imposition of the minimum statutory sentence. The Harris Court held that such judicial fact-finding does not implicate the defendant's Sixth Amendment rights.¹ 536 U.S. at 558-60, 122 S.Ct. 2406.

The reasoning of the Harris decision is in tension with the Supreme Court's recent Sixth Amendment jurisprudence. Indeed, judges across the country have reached opposite conclusions about whether Harris has been implicitly overruled by the Supreme Court's decisions in Booker and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Ninth and Seventh Circuit Courts of Appeals have held that Harris has not been overruled,² although the Sixth Circuit Court of Appeals disagreed on narrow grounds,³ as do other judges.⁴

This Court concludes that, although the reasoning of Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), has been undermined by Booker and Blakely, it is not the role of this Court to overrule a decision of the Supreme Court, or even to anticipate such an overruling by the Supreme Court.⁵ Accordingly, this Court imposes sentence on Count 2 in reliance on the Harris case.

Based on the trial evidence, as to which there is no dispute, the Court finds that Mr. Ezell brandished a firearm, or aided and abetted the brandishing of a firearm, during the robbery underlying Count 2 of the Indictment. Thus, the Court must sentence Mr. Ezell to seven years imprisonment on Count 2.

III. SENTENCING OVERVIEW

The Court agrees with the Government, albeit reluctantly, that it must impose consecutive sentences of twenty-five years on each of Counts 4, 6, 8, 10, and 12. That means that the total term of imprisonment that Mr. Ezell faces on the six § 924(c) counts, i.e., Counts 2, 4, 6, 8, 10, and 12, is 132 years.

The Court concludes that sentencing Mr. Ezell to prison for longer than the remainder of his life is far in excess of what is required to accomplish all of the goals of sentencing. In imposing sentences in criminal cases, the Court is required by the governing statute, the Sentencing Reform Act, 18 U.S.C. § 3551 et. seq., to "impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in [the Act]." 18 U.S.C. § 3553(a). The purposes of sentencing set forth in the Sentencing Reform Act are:

(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 by the defendant; and

(D) to provide the defendant with the needed educational or vocation training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2).

To give content to the Sentencing Reform Act's directives, Congress established an expert body, the U.S. Sentencing Commission, to promulgate United States Sentencing Guidelines ("Sentencing Guidelines") for criminal offenses. Although these Sentencing Guidelines are now "effectively advisory," rather than mandatory, this sentencing Court is still "require[d] . . . to consider Guidelines ranges." United States v. Booker, 543 U.S. 220, 273, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Under the Sentencing Guidelines, without consideration of the § 924(c) charges but with an enhancement for brandishing a firearm, or aiding and abetting the brandishing of a firearm, during each of the six robberies,⁶ Mr. Ezell's sentencing range would be 168 to 210 months.⁷ That sentence stands in sharp contrast to the sentence of 132 years required under § 924(c). The government has not provided a single convincing reason why a sentence under the Sentencing Guidelines would not achieve all of the goals of sentencing in this case.

After careful deliberation, the Court reluctantly concludes that none of defendant's arguments constitute grounds for reducing the 132-year mandatory consecutive sentence. Although the sentence is unduly harsh, the Court is bound by Congressional determination of what constitutes appropriate criminal penalties and controlling case law, both of which require the Court to reject Mr. Ezell's challenges. Accordingly, the Court sentences Mr. Ezell, now twenty-six years old, to a prison term of 132 years and one day, the minimum allowed by the law.

IV. LEGISLATIVE HISTORY AND JUDICIAL INTERPRETATION OF § 924(c)

Before turning to Mr. Ezell's specific challenges to § 924(c), it is necessary to set forth the history of the provision. See United States v. Angelos, 345 F.Supp.2d 1227, 1233-35 (D.Utah 2004), aff'd 433 F.3d 738 (10th Cir.2006), (detailing the development of the provision). Congress enacted the Gun Control Act of 1968 following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy. The Act sought to address the "increasing rate of crime and lawlessness and the growing use of firearms in violent crime." H.R. REP. No. 90-1577 at 1698, 90th Cong., 2d Sess., 7 (1968), 1968 U.S.C.C.A.N. 4410, 4412.

Section 924(c) was not included in the original gun control bill, but was offered as an...