United States v. Black

• Decision Date: 16 June 2014
• Docket Number: No. CR 06-4013-MWB,CR 06-4013-MWB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KEITH CURTIS BLACK, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. KEITH CURTIS BLACK, Defendant.

No. CR 06-4013-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

DATED: June 16, 2014

MEMORANDUM OPINION ANDORDER REGARDING

DEFENDANT'S PRO SE MOTION

UNDER 18 U.S.C. § 3582(c)(2) TO

REDUCE SENTENCE BASED ON

THE FAIR SENTENCING ACT AND

INITIAL REVIEW OF CLAIMS FOR

RELIEF PURSUANT TO

28 U.S.C. § 2255

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND.............................................. 2

II. ANALYSIS................................................................................... 5

A. Black's Reliance On § 3582(c)(2)............................................... 5

B. Black's Other Arguments......................................................... 6

1. Cognizable § 2255 claims................................................. 6

2. Initial review ................................................. 8

a. Untimeliness ................................................. 8

b. Lack of merit...................................................... 10

i. Black's "equal protection" claim..................... 10

ii. Black's "sentencing error" claim.................... 11

iii. Black's "breach of agreement" claim............... 13

3. Summary and certificate of appealability............................ 14

III. CONCLUSION ............................................................................................................................. 15

I. INTRODUCTION AND BACKGROUND

Defendant Keith Curtis Black renews his challenges to his 240-month mandatory minimum sentence for conspiracy to manufacture and distribute crack cocaine after a prior felony drug conviction. More specifically, on February 17, 2006, Black was charged by indictment with conspiracy to manufacture and distribute 50 grams or more of cocaine base (crack cocaine) and to distribute an unspecified quantity of powder cocaine, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846. See Indictment (docket no. 1). On April 25, 2006, the prosecution filed a Notice Of Intent To Seek Enhanced Penalties Pursuant To 21 U.S.C. § 851 (docket no. 19), based on Black's prior conviction for a felony drug offense, which doubled his potential mandatory minimum sentence to 20 years. 21 U.S.C. § 841(b)(1)(A). On June 30, 2006, Black pleaded guilty to the charged offense. Plea Hearing Minutes (docket no. 26); Report And Recommendation Concerning Plea Of Guilty (docket no. 29). Black attempted to withdraw his guilty plea between his plea hearing and his sentencing hearing, see Motion To Withdraw Guilty Plea (docket no. 31) (filed August 21, 2006), but I denied his motion to do so. See Order (docket no. 32) (filed August 24, 2006).

At Black's sentencing hearing on September 22, 2006, I determined that Black's advisory Guidelines sentencing range was 235-293 months. Notwithstanding the prosecution's request that I sentence Black at the top of that range, I imposed the mandatory minimum sentence of 240 months, which fell within—specifically, near the bottom of—that range. My independent review of the 18 U.S.C. § 3553(a) factors did not lead me to believe that a sentence outside the advisory Guidelines range was appropriate, and I recognized that Black's mandatory minimum sentence would keep me from sentencing him below his advisory Guidelines range. Sentencing HearingTranscript (docket no. 58), 7:10-22; Sentencing Hearing Minutes (docket no. 40) (September 22, 2006); Judgment (docket no. 42) (September 26, 2006).

Black appealed both my denial of his motion to withdraw his guilty plea and his 240-month sentence. See Notices of Appeal (docket nos. 46 and 49). The Eighth Circuit Court of Appeals affirmed both, however, in an Opinion (docket no. 71) filed September 11, 2007. Black did not file a petition for writ of certiorari to the Supreme Court. The Mandate (docket no. 73) of the Eighth Circuit Court of Appeals issued on October 2, 2007.

On February 25, 2008, Black filed correspondence that I construed as his first motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582 (First § 3582 Motion) (docket no. 75). That First § 3582 Motion was based on "the recent change and retroactive application to the guidelines," which Black argued "would directly reduce [his] sentence if applied herein, and [he] would most likely be eligible for instant relief, upto [sic] and including release from prison." Motion (docket no. 75). At my request, the United States Probation Office prepared a memorandum that, among other things, addressed Black's eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2). See Order (docket no. 80), 1 n.1. In an Order (docket no. 80), filed December 8, 2008, I denied Black's First § 3582 Motion, because, notwithstanding amendments to the "crack Guidelines" after Black's sentencing, Black was subject to a statutory mandatory minimum sentence of 240 months, so that a reduction pursuant to § 3582(c)(2) and U.S.S.G. § 1B1.10 was not warranted. Id. at 3-4.

I again considered whether or not Black was entitled to a sentence reduction pursuant to § 3582(c)(2), on my own motion, on April 17, 2012, in light of further amendments to the "crack Guidelines" after passage of the Fair Sentencing Act of 2010 (FSA). See Order (docket no. 85), 1. I concluded, again, that Black was not eligible fora sentence reduction pursuant to § 3582(c)(2), in light of those amendments, because he was subject to a statutory mandatory minimum sentence. Id. at 2-3.

On September 11, 2013, Black filed the pro se Motion Under 18 U.S.C. § 3582(c)(2) To Reduce Sentence Based On The Fair Sentencing Act (Second § 3582 Motion) (docket no. 87) now before me. Black identified the "Issues Presented For Review" in his Second § 3852(c)(2) Motion as the following:

1. Does the Fair Sentencing Act apply retroactively to all offenders convicted of crack cocaine offenses?

2. Does the Fair Sentencing Act reduce the enhancement pursuant to 21 U.S.C. § 851?

3. Does the Court have the authority to reduce a sentence based on an enhancement pursuant to 21 U.S.C. § 851?

4. Is every old law offender sentenced under the old crack law being held in violation of the law due to that law being repealed by Congress?

Defendant's Second § 3582 Motion at 2. In support of his Second § 3582(c)(2) Motion, Black also argued that "federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law . . . would violate the Equal Protection Clause." Id. at 3. The prosecution did not file a response to Black's Second § 3582 Motion.

I did not reach Black's Second § 3582 Motion as quickly as I might have hoped—or, for that matter, as quickly as Black hoped. On June 9, 2014, Black filed his Motion To Compel Ruling On Previously Filed Motion Under Section 18 USC § 3582 (Motion To Compel) (docket no. 88). In his Motion To Compel, Black argues that the prosecution's lack of response to his Second § 3582 Motion means that the prosecution has no opposition to the requested relief and that I must now reduce his sentence. In hisMotion To Compel, Black not only "respectfully moves this honorable Court to rule on the [Second § 3582] Motion," he also "respectfully requests that this honorable Court consider the Court[']s option to reduce the sentence for The Petitioner[']s previous significant assistance to The Respondent . . . prior to and following sentencing." Motion To Compel, 1. He contends that, in light of the January 24, 2014, decision of the Fifth Circuit Court of Appeals in United States v. Robinson, 741 F.3d 588 (5th Cir. 2014), "[t]he Court MUST now re-sentence [him]" based on his cooperation, because his cooperation is a part of his "history and characteristics," which the court must consider pursuant to 18 U.S.C. § 3553(a). Motion To Compel at 4. He also argues that the prosecution failed to honor its agreement to seek reductions in his sentence for "substantial assistance," so that the court must now make an appropriate reduction. I do not find it necessary to wait to see if the prosecution will respond to Black's Motion To Compel before resolving both of Black's pending motions.

II. ANALYSIS

A. Black's Reliance On § 3582(c)(2)

To the extent that Black's Second § 3582 Motion actually relies on § 3582(c)(2) as the authority to reduce his sentence, it must be denied. First, the Eighth Circuit Court of Appeals has explained that "[t]he Fair Sentencing Act does not apply retroactively to defendants who were sentenced before August 3, 2010, and who seek a reduction in their sentences under section 3582(c)(2)." United States v. Reeves, 717 F.3d 647, 651 (8th Cir. 2013). Second, "the statutory provisions applicable when the defendant was originally sentenced—not the statutory provisions in the Fair Sentencing Act—apply in section 3582(c)(2) proceedings," id. at 650, which means that, in this case, the penalty provisions of § 841(b)(1)(A), as they relate to mandatory minimum sentences based on drug quantity and prior convictions, would still establish Black's mandatory minimumsentence at 240 months. Third, Black's "argument ignores the commentary following U.S.S.G. § 1B1.10, which states that an amendment to the guidelines is not intended to affect a sentence that was derived from a statutory mandatory minimum." United States v. Moore, 734 F.3d 836, 838 (8th Cir. 2014) (citing U.S.S.G. § 1B1.10 cmt. n.1(A) (2012), which states, "[A] reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) . . . if . . . (ii) . . . the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."). Thus, much as I explained in my Order (docket no. 85), which considered, on my own motion, whether Black is entitled to a § 3582(c)(2) reduction based on the FSA, Black...