U.S. v. Gray

• Decision Date: 17 March 2005
• Docket Number: No. CRIM.A. 3:03-00182.,CRIM.A. 3:03-00182.
• Citation: 362 F.Supp.2d 714
• Parties: UNITED STATES of America, Plaintiff, v. Joshua Brent GRAY and Terrence A. Askew, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

362 F.Supp.2d 714

UNITED STATES of America, Plaintiff, v. Joshua Brent GRAY and Terrence A. Askew, Defendant.

No. CRIM.A. 3:03-00182.

United States District Court, S.D. West Virginia.

March 17, 2005.

COPYRIGHT MATERIAL OMITTED

R. Gregory McVey, Assistant United States Attorney, Charleston, WV, for Plaintiff.

George H. Lancaster, Jr., Federal Public Defender, Mark French, Giatras & Webb, Charleston, WV, for Defendant.

Joshua Brent Gray, Huntington, WV, pro se.

ORDER

GOODWIN, District Judge.

Since 1987, district court judges have determined criminal sentences pursuant to the Sentencing Reform Act of 1984 (SRA), Pub.L. 98-473, Title II, §§ 211-238, 98 Stat. 1987 (1984) and the Guidelines issued by the United States Sentencing Commission. The Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), significantly alters the sentencing scheme that has existed since 1987. In accordance with the Booker decision, I conducted the sentencing hearing in the instant case as follows.

First, I calculated the applicable Guideline range for each defendant by making appropriate findings of fact and resolving objections to the presentence report. Following this determination, I examined and applied the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Hughes, 401 F.3d 540 (4th Cir.2005) ("Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence."). I then considered what the Guideline advice would have been if calculated using only the evidence proven beyond a reasonable doubt. Once I had investigated each applicable factor, I considered these factors, along with the Guideline range, as separate pieces of advice that together informed the exercise of my discretion as I determined an appropriate sentence for the defendants, Terrence Askew and Joshua Gray.

Below is a discussion of the factual findings determined at the sentencing hearing, a discussion of the applicable § 3553(a) factors, and a calculation of the defendants' advisory Guideline range. In addition to factual objections to the presentence report, each defendant, by counsel, filed numerous legal arguments with the court in the form of sentencing memoranda. Specifically, the defendants raised important reasonable doubt, ex post facto, and Crawford v. Washington concerns both in their memoranda to the court and at the hearing in this matter. I deal with each of these concerns at length below.

I. Background

The facts, which were fully developed at the evidentiary hearing, can be summarized as follows. On July 3, 2003, Joshua Gray and Terrence Askew were arrested following a "knock and talk" and subsequent search of Mr. Gray's residence. During the search, officers found a firearm, ammunition, cocaine base, and $8,680.00 representing the proceeds of the defendants' drug trafficking. On March 12, 2004, Mr. Askew plead guilty, pursuant to a written plea agreement, to count two of an indictment charging him with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C § 2, aiding and abetting the possession with intent to distribute cocaine base. On March 15, 2004, Mr. Gray was scheduled to appear before this court to enter his plea of guilty. The defendant, however, failed to appear and a bench warrant was issued for his arrest. On March 18, 2004, Mr. Gray was arrested. On April 9, 2004, he plead guilty, pursuant to a written plea agreement, to count one of the indictment. This count charged him with conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. Defendants Gray and Askew came before this court for sentencing on March 14, 2005. After hearing evidence and resolving the defendants objections, I calculated the drug amount attributable to the defendants and the advisory Guideline range as follows.

First, after hearing the testimony David Cole, the objections of the defendants, and after the government conceded that the readily provable amount of cocaine base was 47.26 grams, I found that the government had not proven by a preponderance of the evidence the additional 59 grams of relevant conduct that was described in the presentence report and developed from historical evidence. After hearing all of the evidence, I found that the remaining 47.26 grams of cocaine base were properly attributed to both defendants and found that the government had proven this amount by both a preponderance of the evidence and beyond a reasonable doubt. I further found that the government had proven, both by a preponderance of the evidence and beyond a reasonable doubt, that both defendants possessed a firearm in connection with their offense within the meaning of section 2D1.1(b)(1) of the Sentencing Guidelines.

Thus, I found both Mr. Askew and Mr. Gray's base offense level to be 30. Section 2D1.1(a)(3) and the Drug Quantity Table of the Sentencing Guidelines call for a base offense level of 30 if the amount of cocaine base is at least 35 grams but less than 50 grams-in this case, the amount of cocaine base was 47.26 grams. To this base offense level, I added a two-level increase to reflect the presence of a firearm, as provided by section 2D1.1(b)(1) of the Guidelines, which increased each defendants' offense level to 32. I then decreased Mr. Askew's offense level by three levels to reflect the adjustment he earned for his acceptance of responsibility. Accordingly, I found Mr. Askew's total offense level to be 29. I declined to apply the acceptance of responsibility reduction to Mr. Gray and also found that he did not qualify for a mitigating role reduction. Accordingly, I found Mr. Gray's total offense level to be 32. Both defendants have two criminal history points, which establish a history category of "II." Given a total offense level of 29 and a criminal history category of II, I found Mr. Askew's advisory Guideline range to be 97-121 months of incarceration, followed by a 3 year term of supervised release. I found Mr. Gray's advisory range, calculated with the same criminal history, to be 135-168 months. After considering the applicable sentencing factors, the defendants' legal objections, and what the advisory range would be if calculated beyond a reasonable doubt, I sentenced both Mr. Gray and Mr. Askew to 97 months of incarceration, followed by 3 years of supervised release.

II. Sentencing Factors found in 18 U.S.C. 3553(a)

Section 3553(a) of Title 18 of the United States Code instructs sentencing judges to "impose a sentence sufficient, but not greater than necessary to comply with the purposes of sentencing." This section further instructs that courts, in determining the particular sentence to be imposed, should consider the several factors listed in § 3553(a).

A. Terrence Askew

In determining a sentence that achieved the purposes set forth in 18 U.S.C. § 3553(a), I first considered the nature and circumstances of Mr. Askew's offense. The testimony and evidence developed at the sentencing hearing indicates that Mr. Askew sold a significant quantity of cocaine base during his and Mr. Gray's association. Although no evidence of specific violence was presented at trial, I found that Mr. Askew possessed a firearm in conjunction with his drug trafficking.

At the hearing, I also considered Mr. Askew's history and characteristics. Mr. Askew is twenty five years old, single, and has never been married. He is the father of three children between the ages of one and five. His children all reside with their mother in Detroit, Michigan. Mr. Askew has yet to see his youngest daughter, but prior to his arrest in the instant case, he was providing his family with some financial support. Mr. Askew completed nine years of formal education and obtained a G.E.D. in 1998. Mr. Askew is a young man with children to support, and he has indicated a willingness to work to do so. He has a relatively low criminal history and has accepted responsibility for his actions in the instant case.

Mr. Askew has a history of substance abuse, but he has not received any counseling as an adult. At the sentencing hearing, I recommended that Mr. Askew be incarcerated in a prison facility that could offer him intensive drug treatment. Such treatment will provide Mr. Askew with necessary rehabilitation. At the sentencing, Mr. Askew, by counsel, indicated a willingness to further his education. Thus, I also recommended that to the extent that he wishes to participate, any and all educational or job training opportunities should be made available to Mr. Askew in prison.

Thus, I found that a term of 97 months incarceration, followed by a 3 year term of supervised release satisfied the sentencing factors found in 18 U.S.C. § 3553(a). Specifically, I found that this sentence, which is within the advisory Guideline range, reflects the history and characteristics of Mr. Askew and the nature, circumstances, and seriousness of the offense.

B. Joshua Gray

The nature and circumstances of Mr. Gray's offense are very similar to those described above for Mr. Askew. Specifically, Mr. Gray was also involved in the trafficking of a significant amount of cocaine base and made his residence available for that purpose. Additionally, the evidence indicated that a firearm was present and was apparently used for protection during the commission of the instant offense.

I also considered Mr. Gray's history and characteristics when crafting the appropriate sentence. Mr. Gray is thirty years old and single. He graduated from high school, attended classes at Marshall University, and completed an electrical worker apprenticeship program. Despite these accomplishments, Mr. Gray is a serious drug addict. His relatively low criminal history...