United States v. Boulding

• Decision Date: 16 May 2019
• Docket Number: CASE No. 1:08-cr-65-01
• Citation: 379 F.Supp.3d 646
• Parties: UNITED STATES of America, Plaintiff, v. Walter Greenking BOULDING, Defendant.
• Court: U.S. District Court — Western District of Michigan

379 F.Supp.3d 646

UNITED STATES of America, Plaintiff,

v.Walter Greenking BOULDING, Defendant.

CASE No. 1:08-cr-65-01

United States District Court, W.D. Michigan, Southern Division.

Signed May 16, 2019

B. Rene Shekmer, Assistant U.S. Attorney, U.S. Attorney, Grand Rapids, MI, for Plaintiff.

OPINION AND ORDER

ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE

INTRODUCTION

A jury convicted Defendant Boulding of two crack cocaine offenses in October of 2008. It found a conspiracy offense involving at least 50 grams of crack, and a possession with intent to distribute offense involving at least 5 grams of crack. The government had a Section 851 Notice on file reporting two prior felony drug offense convictions. At the time of Defendant Boulding's sentencing in April of 2009, this exposed him to a mandatory sentence of life in prison. He was 29 years old at the time.

The matter before the Court is Defendant Boulding's motion for modification or reduction in sentence under the new First Step Act. (ECF Nos. 284 & 294). The government argues that Defendant Boulding is ineligible for a reduced sentence because the PSR attributed over 650 grams of crack cocaine to him—well above the statutory threshold for mandatory life even under the higher thresholds of the Fair Sentencing Act of 2010, which are now available to Defendant Boulding under the First Step Act.

The Court appointed Counsel to assist Defendant Boulding with his First Step motion. Both sides have filed briefs. The Court finds that Defendant Boulding is eligible for relief under the First Step Act, but that he is not entitled to a plenary re-sentencing. Nor does the Court see any other need for a hearing on the fully briefed issues. The Court can and does exercise its discretion under the First Step Act to relieve Defendant Boulding of the mandatory life sentence, and to reduce Defendant Boulding's sentence to a term of years as provided in this Order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Defendant Boulding's Conviction and Sentence

On October 3, 2008, a jury found Defendant Boulding guilty of conspiracy to distribute, and to possess with intent to distribute, 50 grams or more of cocaine base ("crack cocaine") (Count 1), and of possession with intent to distribute 5 grams or more of crack cocaine (Count 2). (ECF No. 122 ). The jury found that the quantity of crack cocaine involved in the conspiracy beyond a reasonable doubt was 50 grams or more of crack cocaine, the highest quantity determination the verdict form asked them to reach. (Id. ).

The Final Presentence Report (PSR) prepared by the probation officer found that Defendant Boulding was responsible for 650.4 grams of crack cocaine.¹ The amount triggered an initial base offense level of 34. (PSR ¶ 91). The officer then added two levels for possession of a dangerous weapon (PSR ¶ 92); four levels for Defendant Boulding's role as an organizer in the offense (PSR ¶ 94); and a further two levels for obstruction of justice. (PSR ¶ 95). The resulting total offense level was 42. (PSR ¶ 100). The officer then scored Defendant's criminal history at six points, resulting in a criminal history category of III. (PSR ¶ 111). The guideline range for a total offense level of 42 and criminal history category of III was 360 months to life, before consideration of any mandatory statutory terms. (PSR ¶ 169).

The statutory mandatory minimum ultimately controlled Defendant Boulding's sentence. Based on the government's Section 851 Notice, the PSR found that Defendant Boulding had two prior felony drug convictions. (PSR ¶ 6). Under the version of Section 841 in effect during Defendant Boulding's sentencing, a violation of 841(a) involving 50 grams or more of crack cocaine (Section 841(b)(1)(A)(iii)) was subject to a mandatory life sentence if the violation occurred after two or more prior convictions for a felony drug offense. Because the jury found Defendant Boulding responsible for 50 grams or more of crack cocaine, and because he had two prior felony drug convictions, his conviction for Count 1 required a mandatory life sentence. The mandatory statutory sentence also controlled Defendant Boulding's final guideline sentence under U.S.S.G. § 5G1.2. (PSR ¶ 169).

The Court sentenced Defendant Boulding to life imprisonment as to Count 1 on April 27, 2009, as required by statute. (ECF No. 162 ). As to Count 2, the Court varied downward from the guideline range of life, and imposed a concurrent sentence of 360 months imprisonment, the bottom end of what would have been the guideline range apart from Section 5G1.2. The Sixth Circuit Court of Appeals affirmed Defendant's conviction and sentence. United States v. Boulding , No. 09-1554, 2011 WL 635914 (6th Cir. Feb. 22, 2011).

The Court's variance on Count 2 was not the only record indication that the Court believed life in prison was too severe for this case. The Court said so directly during the sentencing hearing. The Court's opening comments made the point:

[I]n some senses with the congressional mandate of mandatory life in this situation, in some sense it's an easy sentencing hearing. There's not a lot of guideline issues to talk about.

On the other hand, in the more fundamental way, it's a very difficult sentencing hearing for me, because life in prison is not the sentence I would impose on Mr. Boulding if I had the full discretion that I normally have in sentencing. And so I'll say that at the outset. But, you know, that's where we are.

(ECF No. 171, PageID.958).

Later, in considering the Section 3553 factors, the Court again made it clear that life in prison was greater than necessary to achieve the purposes of sentencing:

I'll say, you know, for the record, we always look at the 18 U.S.C. 3553 factors. And I did that here too for two reasons.

One, up until, you know, 10 minutes before coming out here today, I still have been looking for ways to say, Is that mandatory minimum of life in prison really a mandatory minimum of life in prison?

* * *

I won't go through all of the avenues that I looked into, but I say it simply to indicate I'm not doing this lightly, and I'm not doing it willingly. In my view, in the Court's view, if I were to apply 3553 factors—deterrence, incapacitation, need for rehabilitation, a sentence that reflects the seriousness of the of the offense—I would certainly impose a significant custodial sentence. I would not impose a five-year sentence, but I would not impose life in prison on a 29-year-old man. I think that's too much. I think it is too much punishment. I don't even think at some level that it advances the deterrent interests because it's so overwhelming. How do you even take it in?

I don't think it's necessary to incapacitate Mr. Boulding and protect the public for life. I think a lengthy custodial sentence followed by supervised release would do that.

(ECF No. 171, PageID.975-977).

2. The Fair Sentencing Act of 2010

Over a year after Defendant Boulding's conviction and sentence were entered, Congress passed the Fair Sentencing Act of 2010, Pub L. No. 111-220, 124 Stat. 2372 (2010). The Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine offenses by increasing the amount of crack cocaine needed to trigger the mandatory minimums established in the Anti-Drug Abuse Act of 1986. United States v. Blewett , 746 F.3d 647, 649 (6th Cir. 2013) (en banc); see also Dorsey v. United States , 567 U.S. 260, 263-64, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). More specifically, the Fair Sentencing Act increased the threshold quantity in 21 U.S.C. § 851(b)(1)(A)(iii) from 50 grams or more of crack cocaine to 280 grams or more. Fair Sentencing Act at § 2(a)(1). The Fair Sentencing Act also increased the threshold quantity in 21 U.S.C. § 841(b)(1)(B)(iii) from 5 grams or more of crack cocaine to 28 grams or more. Fair Sentencing Act at § 2(a)(2).

The changes made by the Fair Sentencing Act, however, were not retroactive. Blewett , 746 F.3d at 650.² Because Defendant Boulding had been convicted and sentenced before the Fair Sentencing Act's enactment he was not, at that time, eligible for any relief.

3. The First Step Act of 2018

On December 21, 2018, President Trump signed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (the "First Step Act") into law. The First Step Act "modified prior sentencing law and expanded vocational training, early-release programs, and other programming designed to reduce recidivism." United States v. Simmons , 375 F.Supp. 3d 379, 385, No. 07-CR-00874, 2019 WL 1760840, at *4 (E.D.N.Y. Apr. 22, 2019). In Section 404 of the First Step Act, Congress made the Fair Sentencing Act's statutory changes for crack cocaine offenses retroactive to defendants who were sentenced before August 3, 2010:

SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

(a) DEFINITION OF COVERED OFFENSE.—In this section, the term "covered offense" means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010.

(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) were in effect at the time the covered offense was committed.

(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section

...