U.S. v. Horn

• Decision Date: 16 December 2008
• Docket Number: Case No. 3:01-cr-00142.
• Citation: 590 F.Supp.2d 976
• Parties: UNITED STATES of America, Plaintiff, v. Gregory Steven HORN, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

590 F.Supp.2d 976

UNITED STATES of America, Plaintiff, v. Gregory Steven HORN, Defendant.

Case No. 3:01-cr-00142.

United States District Court, M.D. Tennessee, Nashville Division.

December 16, 2008.

Harold Benton McDonough, Jr., Office of the United States Attorney, Nashville, TN, for Plaintiff.

ORDER

THOMAS A. WISEMAN, JR., Senior District Judge.

Before the Court is defendant Gregory Steven Horn's pro se Motion for Modification of Sentence (Doc. No. 42) and Supplemental Motion for Resentencing (Doc. No. 51), in which Horn seeks a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 709 to the United States Sentencing Guidelines ("U.S.S.G.").¹

The issue now having been briefed and argued exhaustively, the Court, for the reasons set forth below, hereby GRANTS the Motion and the Amended Motion. Resentencing in this case is set for Wednesday, January 7, 2009, at 10:00 a.m.

I. PROCEDURAL AND FACTUAL BACKGROUND

In September 2001 Mr. Horn was arrested in Nashville for the crime of armed bank robbery and later charged with a one-count Information filed in the Middle District of Tennessee. He pleaded guilty to the Information in November 2001 was sentenced by this Court in May 2002 to a term of 204 months, or seventeen years. Among the factors taken into consideration during sentencing was the fact that Horn had committed two prior bank robberies in Maryland in January 1998. There was no intervening arrest between the two Maryland bank robberies; Horn was arrested and charged for both on the same day, and was later convicted and sentenced for both as part of the same proceeding. He received a suspended sentence for one of the two prior convictions, so he effectively served just a single sentence before appearing in this Court.

At the time of Horn's sentencing in this Court, 28 U.S.C. § 994(h) directed the Sentencing Commission to ensure relatively long sentences for offenders receiving a third conviction for a serious drug offense or crime of violence. Pursuant to this directive, the Commission had established its career-offender guideline, which triggered long sentences when an offender had at least two prior qualifying convictions. See U.S.S.G. § 4B1.1 (2001) (defining "career offender" as a defendant who was at least eighteen years old at the time of committing the instant offense of conviction; the instant offense is a felony involving either a crime of violence or a controlled substance; and the defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense"). The Guidelines, both in 2001 and currently, define the term "two prior felony convictions" to mean that the defendant, prior to the commission of the instance offense, had sustained at least two felony convictions of either a crime of violence or a controlled substance offense (or one of each) and "the sentences for at least two of the aforementioned felony convictions were counted separately under the provisions of § 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c) (2001).

The referenced subsections of § 4A1.1 do not actually define or identify when or whether prior felony convictions are to be considered separately; they pertain to the calculation of a defendant's "criminal history category" based on the defendant's "prior sentence[s] of imprisonment." U.S.S.G. § 4A1.1(a)-(c). However, the term "prior sentence" as used in § 4A1.1 is defined to mean "any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1) (2001). Further, up until the adoption of Amendment 709, made effective as of November 1, 2007, "[p]rior sentences imposed in related cases [were] to be treated as one sentence" for purposes of calculating a criminal history category under § 4A1.1. U.S.S.G. § 4A1.2(a)(2) (2001) (amended 2007). The Application Notes in effect before the adoption of Amendment 709 explained that prior sentences were not "related" and therefore should be counted separately if they were "for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the-second offense)." U.S.S.G. § 4A1.2 cmt. n.3 (2001) (amended 2007). "Otherwise, prior sentences [we]re considered related if they resulted from offenses that (A) occurred on the same occasion, (b) were part of a single or common scheme or plan, or (C) were consolidated for trial or sentencing." Id.

In the Sixth Circuit, the terms "same occasion" and "common scheme" employed in the Commentary to § 4A1.2 had, even by the time Horn was sentenced in this Court, been construed so narrowly as to drive exceptions based upon them virtually into extinction. See, e.g., United States v. Martin, 438 F.3d 621, 640 (6th Cir.2006) (Martin, J., concurring) ("We have reached the point, I believe, that only truly simultaneous crimes—which rarely, if at all, exist—or those crimes with explicit evidence that they were planned together, will render offenses `related.'"). In addition, the term "consolidated" under the Guidelines in effect at the time of Horn's sentencing had sparked significant confusion and inconsistency, with some circuits interpreting the term "consolidated" as requiring a formal order of consolidation, regardless of whether the crimes were actually tried in the same suit or sentenced in one proceeding,² while others did not.³ The Sixth Circuit, like most other appellate courts, had held that, in the absence of a formal consolidation order, defendants must show something more than just a single sentencing hearing or a concurrent sentence to establish that sentences were "related," even where a formal consolidation order was not necessarily required. See, e.g., Martin, 438 F.3d at 627, 638 (noting the trial court had rejected the defendant's "related offenses" argument in part on the basis that the state courts had not entered an order consolidating the convictions, but also because the defendant had presented no evidence establishing that the four car thefts for which the defendant had previously been convicted "were anything other than a crime spree that ended when he was arrested for his role in the thefts"); United States v. Odom, 199 F.3d 321, 323-24 (6th Cir.1999) (prior convictions are not considered related merely because concurrent sentences were imposed).⁴

This Court, applying the then-mandatory Sentencing Guidelines and the applicable Sixth Circuit case law construing the "related cases" definition very narrowly, classified Horn as a career offender based on his prior bank robbery convictions. The effect of this classification was basically to double Horn's sentencing range under the Guidelines. On appeal, Horn's classification as a career offender as well as his sentence and conviction were upheld. United States v. Horn, 355 F.3d 610 (6th Cir.2004).

Five years later, the Sentencing Commission propounded Amendment 709 for the express purpose of addressing the inconsistency and confusion that had been generated by the "related cases" doctrine. The Amendment basically provided that all cases sentenced on a single day were "related" for criminal-history purposes, unless the underlying offenses were separated by an intervening arrest. More specifically, the Amendment struck the then-existing version of § 4A1.2(a)(2) in its entirety and substituted the following:

If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence....

See U.S.S.G. app. C, supp. (2007).

There is no dispute that if this version of § 4A1.2(a)(2) had been in effect at the time of Horn's initial sentencing, Horn's prior sentences for the Maryland bank robberies, imposed on the same day, would have counted as one sentence rather than two and that, consequently, Horn would not have qualified as a career offender. His sentencing range under the Guidelines would have been reduced by more than half.

On the strength of this Amendment, Horn has filed his motion for resentencing. The Government opposes the motion.

II. CONCLUSIONS OF LAW

Horn filed his original motion for resentencing (Doc. No. 42) under 18 U.S.C. § 3582, which allows a district court to resentence an offender whose sentencing range has been lowered by a Guideline amendment if the reduction in sentence is "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Implicitly recognizing that the policy statement pertaining to retroactivity did not list Amendment 709, as discussed below, Horn also argued that district courts have authority to give retroactive effect to clarifying, as opposed to substantive, amendments regardless of whether they are listed under U.S.S.G. § 181.10(c). Horn further suggested several alternative routes to relief in the event the Court found that § 3582 does not authorize a reduction in sentence in his case, including that his petition be forwarded to the Sixth Circuit for authorization to file a successive § 2255 petition in this Court or a reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure of the denial of Horn's prior § 2255 motion. Finally, Horn argued that the unique facts of his case constitute "extraordinary circumstances" compelling a grant of relief in the interest of fundamental fairness.

Horn's motion was filed pro se. After counsel was appointed to represent him for purposes of the...