U.S.A v. Holland
| Decision Date | 10 January 2011 |
| Docket Number | No. 8:10CR48,8:10CR48 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA T. HOLLAND, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court for sentencing. This memorandum supplements findings made on the record at a hearing on December 9, 2010.
Joshua Holland was indicted on February 10, 2010, for possession with intent to distribute 5 grams or more of a mixture or substance containing a detectable amount of cocaine base, i.e., "crack cocaine, " in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The record indicates that Holland was responsible for 5.8 grams of cocaine base. Filing No. 44, Presentence Investigation Report ("PSR") (sealed) at 5; Filing No. 38, Transcript of Plea Hearing ("Tr.") at 26-27.
On August 3, 2010, Congress passed the Fair Sentencing Act ("FSA" or "the Act") which increased the quantity of crack cocaine that triggers a sentence of 5 to 40 years from 5 grams to 28 grams and the quantity that triggers a sentence of 10 years to life from 50 grams to 280 grams. Fair Sentencing Act, Pub. L. 111-220, 124 Stat. 2372 (codified at 21 U.S.C. § 841 (2010)). Under the FSA, Holland would not be subject to a mandatory minimum penalty for the quantity he possessed and the maximum sentence for his crimewould be 20 rather than 40 years. See id. In exchange for the filing of an Information that would not allege a quantity and would bring Holland's case within the purview of the FSA's statutory penalties, the government sought an agreement that the Guidelines in place at the time of the plea agreement, rather than those to be promulgated in conformity with the FSA, would apply to the defendant. The parties entered into a binding plea agreement under Fed. R. Crim. P. 11(c)(1)(C), agreeing that the defendant should be held responsible for between 5 grams and 20 grams of crack cocaine, that his base offense level was 24, his total offense level was 21, his criminal history category was III, and his sentence should be 46 months. See Filing No. 34, Plea Agreement at 2-3; 44, PSR at 3.
On September 9, 2010, the government filed the Information, alleging that Holland possessed with intent to distribute a mixture or substance containing a detectable amount of crack cocaine, with no allegation of quantity. Filing No. 30. Under the Guidelines in effect on that date, a quantity of over 5 grams but less than 20 grams of crack cocaine resulted in a base offense level of 24. U.S.S.G. § 2D1/1(c)(8) (2009). Based on a Total Offense Level 21, after a 3-level adjustment for acceptance of responsibility, and a Criminal History Category III, the guideline imprisonment range is 46 to 57 months. Id., Sentencing table. Under the Guidelines amendments that became effective on November 1, 2010, the base offense level for possessing between 5.6 grams and 11.2 grams of cocaine base is 18, producing a guideline range for a defendant in the position of Holland (at criminal history category III, after deduction of 3 levels for acceptance of responsibility) of 24 to 30 months. See U.S.S.G. § 2D1.1(c)(11) (Supp. 2010).
At a change of plea hearing on September 8, 2010, the court accepted the defendant's plea of guilty to the Information, but withheld approval of the plea agreementpending review of a presentence investigation report. Filing No. 36, Minute entry. The court expressed reservations concerning the applicability of the FSA and ordered further briefing on the issue.1 Filing No. 38, Transcript of Plea Proceedings at 14-16.
The defendant is 23 years old. He has previous convictions for theft by unlawful taking, shoplifting, trespassing, possession of marijuana (less than an ounce), and driving while intoxicated. Filing No. 44, PSR (sealed) at 7-9. At the time of his sentencing, he resided at home with his parents. Id. at 12. He is single and has never been married, but has been in a relationship for eight years and has three children between the ages of 1 and 4. Id. At the time of sentencing, he was caring for the children while their mother worked. Id. He attended high school until 12th grade, but did not graduate. Id. at 13. He has been employed as a transfer technician at Marianna Industries and as a loader for United Parcel Service and has worked off and on for his father's tree service. Id. at 13-14.
He was diagnosed with ADHD at age 12 and was on medication until he was 17. Id. at 13. He began drinking alcohol and smoking marijuana at age 16. Id. He reported that he began smoking marijuana daily at age 18 and smoked crack cocaine two times per month for three months at age 21, but has not used drugs since August 2009. He also used OxyContin, Xanax, and PCP occasionally. He attended and successfully completed outpatient chemical dependency treatment at Lutheran Family Services in the summer of 2010.
At the defendant's sentencing hearing on December 9, 2010, the government urged the court to accept the Rule 11(c)(1)(C) agreement and to sentence the defendant to 46 months, in accordance with the agreement and in conformity with the pre-amendment Guidelines. It argues that the FSA's reduced penalties do not apply to conduct that occurred before its enactment. It relied on the so-called "general savings statute, " 1 U.S.C. § 109, as authority for the proposition that a court must apply a criminal statute in effect at the time of a defendant's offense, unless Congress expressly provides that the amendment or repeal of the criminal statute is retroactive.
The defendant argued that he had been presented with a Hobson's choice in connection with the plea agreement: Rejecting the offer could subject him to a 5-year mandatory minimum penalty, while accepting the offer would lock in a sentence that was longer than the post-amendment Guidelines sentence. He further argued that the plain language of the Fair Sentencing Act indicates that it is to apply to all cases that are not yet final.
For the reasons stated below, the court finds the general savings clause is inapposite. The court finds that it is not reasonable under the circumstances to accept the parties' Rule 11(c)(1)(C) plea agreement. The court finds, under the circumstances, that it would be unfair and unreasonable to accept the parties' binding plea agreement. The court finds that fundamental fairness requires that the court sentence the defendant under the statute and the Guidelines in effect at the time of his sentencing. In consideration of the sentencing factors under 18 U.S.C. § 3553(a), the court finds a sentence of a term of imprisonment of 24 months, followed by a term of supervised release of 3 years, is reasonable for this defendant.
A. Law
Facts that alter the maximum penalty function as traditional elements of a crime. See Harris v. United States, 536 U.S. 545, 560-61 (2002); United States v. Turner, 603 F.3d 468, 471 (8th Cir. 2010) (). The government has a constitutional obligation to charge each element in the indictment, submit each element to the jury, and prove each element beyond a reasonable doubt. Harris, 536 U.S. at 557; see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000_.
Under Fed. R. Crim. P. 11(c)(1)(C), a plea agreement may specify that an attorney or the government will agree that a specific sentence or sentencing range is the appropriate disposition for a case and such a recommendation or request will bind the court once the court accepts the plea agreement. Fed. R. Crim. P. 11 (c)(1)(C). The court may accept the agreement, reject it, or defer decision until the court has reviewed the presentence report. Fed. R. Crim. P. 11(c)(3)(A). If the court rejects a Rule 11(c)(1)(C) plea agreement, the court must inform the parties that the court rejects the plea agreement; advise the defendant personally that the court is not required to follow the plea agreement; give the defendant an opportunity to withdraw the plea; and advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated. Fed. R. Civ. P. 11(c)(5)(A)-(C). Courts are not obligated to accept plea agreements and have discretion to reject those which are deemed involuntary or unfair. United States v. Kling, 516 F.3d 702, 704 (8th Cir. 2008); see also Virgin Islands v. Walker, 261 F.3d 370, 375 (3d Cir. 2001) (). Due process, as related to the validity of a plea of guilty, requires that the plea be voluntarily and understandingly made. Kotz v. United States, 353 F.2d 312, 314 (8th Cir. 1965). The understanding necessary to give validity to a plea includes knowledge and comprehension, not only of nature of the charge, but also of the penalty that can be imposed. Id. ().
The statute that criminalizes drug possession and distribution, 21 U.S.C. § 841, is structured to provide three tiers of punishment, depending on the drug quantity involved in the offense. See 21 U.S.C. § 841 (b) (1) (A)(iii) (); § 841(b)(1)(B) (iii) (5 to 40 years); 21 U.S.C. § 841(b)(1)(C) (). The Fair Sentencing Act increased the quantity of crack cocaine that triggers 5-to 40-year sentence from 5 grams to 28 grams and the quantity that triggers a 10-years to life sentence from 50 grams to 280 grams.2 Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2008) with 21 U.S.C. § 841(b)(1)(B)(iii) (2010). The Act also eliminated the five-year mandatory minimum sentence for simple possession of crack. 21 U.S.C. § 844(a) (2010). The Act increases some penalties as well. See, e.g., Fair Sentencing Act, Pub. L....
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