United States v. Dale
| Decision Date | 20 July 2022 |
| Docket Number | 92-81127 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EDWARD DALE, JOHN GORDON, GENE POLK, and GREGORY BROWN, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
This case is before the Court on the multiple post-conviction motions by four defendants convicted by juries of drug conspiracy and homicide offenses. Defendants Edward Dale John Gordon, Gene Polk, and Gregory Brown currently are serving life sentences for their roles in a violent drug trafficking organization, the “Best Friends,” which began in the mid-1980s and was responsible for at least eight homicides. With the permission of the court of appeals they filed successive motions under 28 U.S.C. § 2255 contending that their life sentences are unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718 (2016), because they became involved with the Best Friends when they were juveniles. Those motions will be denied because they were filed out of time.
The defendants also filed motions for sentence reductions under the First Step Act of 2018. The trial judge, the Honorable Avern Cohn, denied the First Step Act motions filed by Gordon and Brown. Gordon appealed Judge Cohn's denial, and the Sixth Circuit reversed the decision in part as to Gordon's conviction of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 846 and 841. Brown filed a motion for reconsideration of that order. Because the defendants were sentenced to prison for an offense covered by the First Step Act, the Court may resentence them to lesser prison terms if the current circumstances, including intervening changes in fact and law, point in that direction. The defendants have shown that the relevant factors may warrant a sentence reduction, so the Court will grant in part their motions under the FSA.
Defendant Brown also has filed a separate motion to reduce his sentence under the compassionate release provisions of 18 U.S.C. § 3582(c)(1)(A). However, he has not established the extraordinary and compelling reasons that must be shown to obtain that separate relief. That motion will be denied.
Dale, Gordon, Polk, and Brown joined the Best Friends drug conspiracy in 1986 as juveniles: Dale was 17 years old, Polk was 16, Gordon was 15, and Brown was 14. However, they were charged as adults with continuing to engage in the conspiracy until 1995, and with aiding and abetting intentional killings in furtherance of the continuing criminal enterprise.
In 1995, after a trial that lasted 32 days and involved around 70 witnesses, a jury convicted Dale, Gordon, and Polk of three crimes: (1) conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; (2) intentional killing in furtherance of conducting a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A); and (3) using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The jury never was asked to determine the type or quantity of drugs for which each defendant was accountable, and those facts were not determined beyond a reasonable doubt by the factfinder. Instead, those drug quantities were assessed as sentencing factors (not crime elements) by the probation department during the presentence investigation. Dale's and Polk's presentence reports assessed responsibility for more than 1.5 kilograms of crack cocaine each; and Gordon's presentence report attributed at least 500 grams of crack cocaine to him. The following year, a jury convicted Brown of the same crimes. Again, the jury never found that he possessed any specific quantity of drugs, but his presentence report assessed responsibility for at least 50 grams to 150 grams of crack cocaine. The defendants each were sentenced under 21 U.S.C. § 841(b)(1)(A), which at the time of their conviction and sentencing was triggered by the distribution of at least 50 grams of crack.
Although the drug quantities varied among the defendants, under the Sentencing Guidelines all four defendants' drug conspiracy convictions were cross-referenced to the first-degree murder offense section, resulting in a base offense level of 43 on all drug conspiracy and intentional killing counts. See U.S.S.G. §§ 2A1.1, 2D1.1(d)(1) (1997). Only Brown was subject to an enhanced mandatory-minimum penalty on his drug conspiracy conviction alone. Judge Cohn imposed concurrent life sentences on all four defendants, as was mandated by the sentencing regime in effect at the time. Dale received four concurrent life sentences (one for the drug conspiracy conviction; three for intentional killing convictions) and consecutive terms of five and 20 years on two firearm convictions under 18 U.S.C. § 924(c). Polk also received four concurrent life sentences (one for the drug conspiracy conviction; three for intentional killing convictions) and a consecutive 45-year prison term on three section 924(c) convictions. Gordon received two concurrent life sentences (one for the drug conspiracy conviction; one for the intentional killing conviction) as well as a consecutive term of five years on one section 924(c) firearms conviction. Brown received two concurrent life sentences (one for the drug conspiracy conviction; one for the intentional killing conviction) as well as a consecutive term of five years on one section 924(c) firearms conviction.
The defendants' convictions and sentences were affirmed on direct appeal on June 2, 1999 and June 20, 2000. United States v. Polk, 1999 WL 397922 (6th Cir. Jun. 2, 1999); United States v. Brown, 221 F.3d 1336 (6th Cir. 2000). They since have filed multiple motions and have returned to the court of appeals numerous times. Each of the four defendants has filed a successive motion to vacate his sentence under 28 U.S.C. § 2255, arguing that because their participation with the Best Friends began when they were juveniles, their life sentences are unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). The Sixth Circuit granted the defendants leave to file these successive motions. In November 2017, Gordon filed a motion to consolidate the petitions. The government filed a consolidated response to the four petitions because they presented identical issues.
More recently, in 2019, the defendants each moved for relief under the First Step Act. Judge Cohn denied Gordon's and Brown's motions, concluding that because the defendants' sentencing guideline range was calculated under the intentional killing section, U.S.S.G. § 2A1.1, they were ineligible for relief under the FSA. Brown moved for reconsideration, and Gordon filed an appeal.
On appeal, Gordon argued that his intentional killing conviction under 21 U.S.C. § 848(e)(1)(A) is covered by the First Step Act, rendering him eligible for a sentence reduction, because section 848(e)(1)(A) requires the commission of an offense that violates section 841(b)(1)(A), and because the Fair Sentencing Act modified the crack-cocaine thresholds for penalties set forth in section 841(b)(1)(A). The Sixth Circuit rejected that argument but found that Gordon in fact was eligible for a sentence reduction under the First Step Act for his drug conspiracy conviction. ECF No. 2457, PageID.19480-81. It also rejected the government's argument that because Gordon is serving a concurrent life sentence on his intentional killing conviction, he should be found ineligible for First Step Act relief under the concurrent-sentencing doctrine. The court of appeals explained that, if Gordon prevailed on his successive section 2255 motion, the First Step Act could impact the ultimate sentence he receives despite his concurrent life sentences. Id. at PageID.19481. Thus, the court of appeals vacated Judge Cohn's order on count 1 and remanded the case for further proceedings.
The defendants each contend that they have reformed in prison. Dale, Gordon, and Brown have submitted letters from prison officials attesting to their rehabilitation and letters from friends and family members attesting to their community support. They have spotless or near-spotless disciplinary records and appear to have taken full advantage of the educational and vocational opportunities available to them while incarcerated, suggesting that they are prepared to work in and contribute to society if released from prison.
In pursuit of that relief, and before the Court for adjudication, are motions by defendants Dale, Gordon, Polk, and Brown to vacate their sentences under 28 U.S.C. § 2255; motions by Dale, Gordon, and Polk to reduce their sentences under the First Step Act; and Brown's motion to reconsider the denial of his First Step Act motion. In addition, Gordon has moved to expedite and consolidate the proceedings, and Brown has moved to appoint an expert witness, take judicial notice of certain opinions issued by other federal courts, and hold his motion for reconsideration in abeyance. Brown also has pending a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
Except for Brown's compassionate release motion, the defendants present nearly identical grounds on their motions seeking shorter sentences, so the Court will address their motions together.
The asserted bases for the defendants' motions to vacate their sentences under section 2255 is that they first joined...
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