United States v. Broadway
| Decision Date | 30 January 2020 |
| Docket Number | Criminal Case No. 07-cr-00517-LTB |
| Parties | UNITED STATES of America, Plaintiff, v. Jason Alexander BROADWAY, Defendant. |
| Court | U.S. District Court — District of Colorado |
James R. Boma, U.S. Attorney's Office, Denver, CO, for Plaintiff.
Peter D. Menges, Peter D. Menges, P.C.,The Law Office of, Denver, CO, for Defendant.
This matter is before me on a Motion for Reduced Sentence Pursuant to The First Step Act or 18 U.S.C. § 3582(c)(2) [Doc #118 ], in which Defendant Jason Alexander Broadway – who is currently serving a term of imprisonment in federal custody – requests that I reduce his sentence from 262 to 188 months. The United States of America has filed its Response [Doc #122], in which the Government opposes the motion, and Mr. Broadway has filed a Reply. [Doc #124]
After reviewing the rapidly evolving legal landscape, I conclude that Mr. Broadway is eligible to request a sentence reduction via the First Step Act of 2018 (Pub. L. No. 115-391, 132 Stat. 519). However, I further conclude that the constitutional rule set forth in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is not applicable to the drug quantity determination in his case, and thus Mr. Broadway's sentencing range is not altered by application of the Fair Sentencing Act of 2010 (Pub. L. No. 111-220, 124 Stat. 2372). Based on this ruling, I likewise deny Mr. Broadway's alternative request relief in the form of re-sentencing under 18 U.S.C.§ 3553(c)(2) when a sentencing range has been subsequently lowered by the Sentencing Commission. Finally, in the exercise of my discretion, and in consideration of the unchanged sentencing guideline range and the sentencing factors of 18 U.S.C.§ 3553(a), I conclude that Mr. Broadway is not entitled to a sentence reduction. Therefore, upon consideration of the record, the parties' briefs and arguments, and the relevant law, I DENY the Mr. Broadway's request for relief.
On August 3, 2010, the Fair Sentencing Act of 2010 went into effect. That act amended the Controlled Substances Act, 21 U.S.C. § 801, et seq. , in order to remedy a disparity that existed between sentences imposed for the distribution of cocaine in powder form, and the distribution of substances containing cocaine base (also known as "crack" cocaine). Section 2 of the Fair Sentencing Act increased the quantity of crack cocaine required to trigger the enhanced penalties set forth in 21 U.S.C. § 841(b). Specifically, Section 2 amended 21 U.S.C. § 841(b)(1) in that it "increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum." Dorsey v. United States , 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Congress did not apply these changes retroactively to defendants sentenced before its passage.
Thereafter, on December 21, 2018, the First Step Act of 2018 was signed into law. Section 404 of the First Step Act gives retroactive effect to the changes made by Section 2 of the Fair Sentencing Act. As a result, defendants who were already serving a sentence for a controlled substance offense involving crack cocaine as of 2010 could move to have their sentence reduced as if the Fair Sentencing Act had been in effect at the time they were originally sentenced.
A district court has limited authority to modify a sentence of imprisonment. A court's authority to reduce a defendant's sentence under § 404 of the First Step Act is set forth in 18 U.S.C. § 3582(c)(1)(B), which provides, in pertinent part: "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute...". See United States v. Wirsing , 943 F.3d 175, 183 (4th Cir. 2019), as amended (Nov. 21, 2019)( that 18 U.S.C. § 3582(c)(1)(B) is the appropriate vehicle for a First Step Act motion); see also United States v. Coleman , 382 F. Supp. 3d 851, 857-58 (E.D. Wis. 2019) (); United States v. Scott , 2019 WL 5741331 (D. Colo. Nov. 5, 2019). Finally, I note that because a defendant need not be present for a proceeding that involves the correction or reduction of a sentence under 18 U.S.C. § 3582(c), pursuant to Fed. R. Crim. P. 43(b)(4), a hearing is not necessary to resolve a motion seeking relief under the First Step Act. See United States v. Scott , 2019 WL 5741331 (D. Colo. Nov. 5, 2019).
As relevant here, Mr. Broadway pled guilty to possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A), on January 7, 2009.1 Mr. Broadway was subsequently sentenced, on March 25, 2009, to a 262-month term of imprisonment based on a sentencing range of 262 to 327 months. The Pre-Sentence Investigation Report, as stipulated by the parties in the plea agreement, deemed Mr. Broadway accountable for 487.82 grams of crack cocaine, which set his base offense level at the time of sentencing at 31 (). However, two prior convictions (for possession of crack cocaine for sale and sell/transport of a controlled substance) designated him a career offender with a criminal history category of VI. His career offender status resulted in a total offense level of 34 (an offense level of 37 with a 3-level decrease for acceptance of responsibility). As a result, the higher total offense level assessed by his career offender status supplied the applicable guideline range of 262 to 327 months. After denying Mr. Broadway's request for a variant sentence, I imposed a sentence of imprisonment at the bottom of the range of 262 months (21 years and 10 months), and a five year term of supervised release, for Mr. Broadway's conviction of possession with intent to distribute 50 grams or more of crack cocaine. [Docs #97 & #106] Mr. Broadway has served approximately 12 years (144 months) of his prison sentence. The Government asserts that Mr. Broadway's current projected release date, as set by the Bureau of Prisons, is December 7, 2026. [Doc #122-1]
In this motion, Mr. Broadway now contends that the First Step Act applies to his crack cocaine conviction making him eligible for a sentence reduction. Specifically, he asserts that because he was convicted of possession with intent to distribute 50 grams or more of crack cocaine under 21 U.S.C. § 841(b)(1)(a), the First Step Act applies to reduce his sentence under the lower possession amount set forth in 21 U.S.C. § 841(b)(1)(B) () of five to forty years of imprisonment. With a new maximum of 40 years of imprisonment (as opposed to a maximum of term of life at sentencing in 2009), Mr. Broadway contends that his total offense level is now 31 (an offence level of 34 with a 3-level decrease for acceptance of responsibility) as opposed to a total offense level of 34 when he was sentenced. And, in turn, a resulting guideline range of 188 to 235 month, as opposed to the 262 to 327 month range when he was sentenced in 2009. Mr. Broadway seeks a reduction to the lowest sentence of that range. He acknowledges that granting the requested reduction is discretionary, but argues that the sentencing factors articulated in 18 U.S.C. § 3353(a) favor reducing his prison sentence to 188 months. The Government, in its response, opposes this request and argues that Mr. Broadway's sentence is not eligible for reduction under the First Step Act.
As set forth above, the First Step Act of 2018 gives retroactive effect to the Fair Sentencing Act of 2010, which lowered the mandatory minimum for sentences related to defendants convicted of crack cocaine crimes. Pursuant to § 404(b) of the First Step Act "[a] court that imposed a sentence for a covered offense may... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed." Section 404(a) defines a "covered offense" as "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, that was committed before August 3, 2010."
I first address whether Mr. Broadway is eligible for relief based on whether his conviction for possession with intent to distribute 50 grams or more of crack cocaine in 2009 constitutes a "covered offense." The exact language of § 404(a) provides as follows:
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.
Mr. Broadway asserts that the plain text of § 404(a) is that "covered offense" means that eligibility for sentence revision turns on whether the Fair Sentencing Act modified the penalty provisions for the statute violated by the defendant. Because Section 2 of Fair Sentencing Act modified the penalty provisions for 21 U.S.C. § 841(a)(1) – the statute violated by Mr. Broadway at issue here – Mr. Broadway contends that he is entitled to seek relief. Mr. Broadway also argues that a contrary interpretation has been rejected by a majority of the courts that have considered the issue.
The Government, in response, disagrees with Mr. Broadway's interpretation of a "covered offense" as defined in § 404(a) of the First Step Act. It contends that a covered offense is not related to the statute of conviction, but instead refers to the specific "violation" that ...
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