United States v. Fleming
| Decision Date | 11 March 2022 |
| Docket Number | CRIMINAL ELH-08-086 |
| Court | U.S. District Court — District of Maryland |
| Parties | UNITED STATES OF AMERICA v. ANTHONY FLEMING, Defendant. |
Anthony Fleming was one of 28 defendants indicted in February 2008 on multiple charges. ECF 1. In April 2010, a jury convicted Fleming of one count of conspiracy to engage in a racketeering enterprise; one count of conspiracy to distribute fifty grams or more of cocaine base i.e., “crack” cocaine; and one count of possession with intent to distribute fifty grams or more of cocaine base. ECF 964. In July 2010, Judge William D Quarles, Jr., to whom the case was then assigned, sentenced Fleming to life imprisonment. ECF 1065 (Judgment).[1] In doing so, Judge Quarles concluded that Fleming had murdered Lamont Jackson, and that this murder was related conduct for purposes of the Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). ECF 1736-2 (Sentencing Tr.) at 24. Fleming is currently serving his sentence at USP McCreary. See ECF 1736-9.
While self-represented, Fleming filed a “Motion for a Sentence Reduction Pursuant to Section 404 of the First Step Act.” ECF 1658. It is supported by one exhibit. ECF 1658-1. Through appointed counsel (ECF 1685), Fleming filed a “Supplemental Motion in Support for Request for Sentence Reduction Under Section 404 of the First Step Act and Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).” ECF 1734. It is supported by several exhibits. ECF 1734-1 to ECF 1734-9. I shall refer to ECF 1658 and ECF 1734 collectively as the “Motion.” In the Motion, Fleming asks the Court to reduce his sentence to time served. ECF 1738 at 18.
The government opposes the Motion. ECF 1752 (the “Opposition”). In the alternative, however, the government argues that the Court should reduce Fleming's sentence to 27 years of imprisonment, rather than time served. Id. at 22-24. Fleming has replied. ECF 1757 (the “Reply”). In addition, the Court has received correspondence from Fleming and numerous individuals on his behalf. See ECF 1759; ECF 1768; ECF 1769; ECF 1770; ECF 1777; ECF 1808; ECF 1833; ECF 1834; ECF 1835.
No hearing is necessary to resolve the Motion. For the reasons that follow, I shall grant the Motion in part, and reduce Fleming's life sentence to a total term of 30 years of imprisonment.
On February 21, 2008, a grand jury indicted Fleming and 27 codefendants. ECF 1 (the “Indictment”). Specifically, the Indictment charged Fleming with conspiracy to engage in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); conspiracy to distribute and possess with the intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 853 (Count Two); and possession with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count Four). Id.; see ECF 1065 (Judgment); United States v. Mouzone, 687 F.3d 207, 212 (4th Cir. 2012), cert. denied, Fleming v. United States, 568 U.S. 1110 (2013). Count Four, for which only Fleming was charged, arose from conduct that occurred on April 24, 2007, described below.
Before trial, the government provided notice under 21 U.S.C. § 851 that, as to Count Two and Count Four, it would introduce evidence that the offense involved an aggregate weight of 50 grams or more of cocaine base or crack and, if convicted, the offense would require a mandatory minimum sentence contemplated in 21 U.S.C. § 841(b)(1)(A). ECF 907 at 1-2. In the alternative, if the offense involved an aggregate weight of 5 grams or more, it would require a mandatory minimum penalty under 21 U.S.C. § 841(b)(1)(B). Id. Furthermore, as to Count Two and Count Four, on the basis of the defendant's prior qualifying convictions, the government gave notice of its intent to seek the enhanced maximum sentence and enhanced mandatory minimum sentence, as provided in 21 U.S.C. §§ 841(b)(1)(A) and 851. Id. at 2-3.
Fleming and one codefendant, Travis Mouzone, proceeded to an eight-day jury trial in March and April 2010. See ECF 913 to ECF 964. On April 16, 2010, the jury convicted Fleming of the three counts that pertained to him. ECF 964.[3] As to Count One, the jury found that the distribution of crack cocaine, distribution of cocaine, and robbery were racketeering activities that were objectives of the conspiracy. Id. at 1. However, the jury found that distribution of heroin and marijuana were not objectives of the conspiracy. Moreover, the jury made no findings as to whether conspiracy to commit first degree murder; conspiracy to commit second degree murder; attempted first degree murder; attempted second degree murder; first degree murder; or second degree murder were racketeering activities that were objectives of the conspiracy. Id. at 1-2. As to Count Two, the jury found that the conspiracy involved fifty grams or more of cocaine base. Id. at 2. And, as to Count Four, the jury found that the offense involved fifty grams or more of cocaine base. Id. at 2-3.
The following summary of the evidence at trial is drawn from the government's submission for the Presentence Report (ECF 1736-3, the “PSR”) and from the Fourth Circuit's decision on appeal. See Mouzone, 687 F.3d at 212-13.
Fleming and Mouzone were members of Tree Top Piru (“TTP”), a “set, ” or subdivision, of the Bloods gang. Id. at 212; ECF 1736-3, ¶ 10. TTP developed within the Maryland prison system, but expanded outside of the prison system to locations throughout Maryland, including Baltimore. Mouzone, 687 F.3d at 212; ECF 1736-3, ¶¶ 10, 11. TTP members were expected to advance within the gang by “putting in work.” Mouzone, 687 F.3d at 212; ECF 1736-3, ¶¶ 10-12. “Putting in work” entailed, inter alia, generating revenue for the gang through drug trafficking, robbery, and other crimes, and committing acts of violence, such as murders and stabbings, against other prisoners and members of rival gangs. Mouzone, 687 F.3d at 212; ECF 1736-3, ¶ 12.
Fleming and Mouzone participated in TTP activities in the Essex area of Baltimore County, Maryland. “As part of their membership [in TTP], they participated in the gang's drug-trafficking and other illicit activities.” Mouzone, 687 F.3d at 212.
At trial, two TTP cooperating witnesses, as well as a third witness who was not a member of TTP but who infiltrated the organization in cooperation with investigating agents, identified Fleming as a drug dealer. ECF 1736-3, ¶ 13. These witnesses knew Fleming by the nickname “Mo Easy.” Id. TTP correspondence identified “Mo Easy” as a ranking TTP member, or what is known as an “SP.” Id. In addition, law enforcement witnesses described encountering Fleming, along with several other TTP members, during a search of an address in Essex referred to as the “headquarters” for TTP. Id.
On April 24, 2007, Fleming was arrested by officers of the Baltimore Police Department. Id. ¶ 19; Mouzone, 687 F.3d at 213. The arrest occurred after officers “observed a plastic baggie with a white rock substance protruding from a cell phone case on Fleming's hip.” Mouzone, 687 F.3d at 213. Seizure of the cell phone case revealed that it contained two plastic bags of cocaine base, amounting to 55 grams. Id.; ECF 1736-3, ¶ 19. At the time, Fleming was 21 years old. See ECF 1736-3 at 1.
The government also introduced evidence regarding the participation of Fleming and Mouzone in the murders of Lamont Jackson and Marquel Smith. Mouzone, 687 F.3d at 212-13.
On November 17, 2006, Jackson was found “lying and bleeding” at the rear of his house on Streeper Street in Baltimore. ECF 1736-3, ¶ 25. Investigators found 9mm shell casings near the front door of the home. Id. “[T]he scene indicated that Jackson had answered his door, and was then shot, chased through his home, and finally murdered near the rear of the home.” Id.
The Fourth Circuit said in Mouzone, 687 F.3d at 212-13:
At trial, TTP members Terrence Brady and Troy Smith testified for the government as to statements by Fleming that he shot and killed Jackson in retaliation for Jackson's testimony against another TTP member, Antwoine Gross (aka Shooter). Another TTP member, Kowan Brice, provided testimony that he drove Fleming and Mouzone to an area near Streeper Street in a Dodge Durango. Brice claimed that he “split off” from Fleming and Mouzone and went to a convenience store. After hearing noises he thought to be gunshots or fireworks, he returned to the Durango, where he met Fleming and Mouzone, and drove them back to Essex.
Smith was shot and killed at his home on December 17, 2016. He was not a member of TTP. Rather, Smith was selling marijuana in Essex and refused to pay a portion of his proceeds to the gang. Id. at 213; ECF 1736-3, ¶¶ 20-22. Mouzone provided two 9mm firearms to two TTP members, who accompanied Mouzone to Smith's house and killed Smith. 687 F.3d at 213. “Brady testified that one of the firearms Mouzone provided was the same firearm he had seen Fleming holding at TTP's headquarters in November.” Id. According to the PSR, “[a] key piece of evidence linking the Jackson murder to the Smith murder . . . was the fact that the same 9mm handgun was used to commit both murders.” ECF 1736-3, ¶ 26.
As noted, the jury returned a guilty verdict on April 16, 2010 as to all three counts in which Fleming was charged. ECF 964. After the verdict, Fleming moved for a new trial. ECF 974. He argued that the court improperly admitted a narcotics weight report from a non-testifying chemist, in violation of the Sixth Amendment's Confrontation Clause. Id. at 2-4. And, he maintained that the court had erred in denying his motion, made during trial, to sever Count Four from Counts One and Two,...
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