United States v. Glover

• Decision Date: 01 May 2019
• Docket Number: CASE NO. 95-08021-CR-LENARD
• Citation: 377 F.Supp.3d 1346
• Parties: UNITED STATES of America, v. Thomas Randolf GLOVER, Defendant.
• Court: U.S. District Court — Southern District of Florida

377 F.Supp.3d 1346

UNITED STATES of America,

v.Thomas Randolf GLOVER, Defendant.

CASE NO. 95-08021-CR-LENARD

United States District Court, S.D. Florida.

Signed May 1, 2019

Andrea Hoffman, United States Attorney’s Office, for United States of America.

Bernardo Lopez, Federal Public Defender’s Office, for Defendant

AMENDED ORDER DENYING MOTION FOR REDUCTION OF SENTENCE PURSUANT TO SECTION 404 OF THE FIRST STEP ACT (D.E. 399, 404)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant Thomas Randolf Glover's pro se Motion to Reduce Sentence Pursuant to Section 404 of the First Step Act, ("Motion," D.E. 399), filed January 3, 2019. On January 18, 2019, the Government filed a Response opposing the Motion. ("First Response," D.E. 400.) On February 26, 2019, the Court appointed the Federal Public Defender to represent Defendant in these proceedings. (D.E. 401.) On March 12, 2019, Defendant, through appointed counsel, filed a Memorandum in support of his Motion. ("Memorandum," D.E. 404.) The Government filed a Response to the Memorandum on March 18, 2019, ("Second Response," D.E. 405), to which Defendant filed a Reply, on March 19, 2019, ("Reply," D.E. 406). Upon review of the Motion, Memorandum, Responses, Reply, and the record, the Court finds as follows.

I. Background

On March 2, 1995, Defendant was charged by Indictment with conspiracy to distribute a detectable amount of cocaine base—or "crack" cocaine—in violation of 21 U.S.C. § 846 (Count 1), possession with intent to distribute a detectable amount of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 2 (Count 2), and distribution of a detectable amount of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 2 (Count 3). (D.E. 10.) The case was originally assigned to United States District Judge William J. Zloch. (See id. )

On April 10, 1995, the Government filed and served upon Defendant an Information pursuant to 21 U.S.C. § 851 stating that it intended to seek an enhanced statutory penalty under Section 841 based upon a prior state court conviction for selling cocaine. ("Information," D.E. 37.) The Information—which is titled "INFORMATION CHARGING PRIOR CONVICTION PURSUANT TO TITLE 21, UNITED STATES CODE, SECTION 851"—states in its entirety:

The United States Attorney for the Southern District of Florida charges that defendant THOMAS GLOVER, indicted in the instant case with drug offenses arising under Title 21, United States Code, Sections 841(a)(1) and 846, has previously been convicted of the following felony drug offense:

On or about November 20, 1991, in the Circuit Court, Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, defendant THOMAS GLOVER was duly convicted of Sale of Cocaine, a felony, in violation of Florida Statute 893.13.

A copy of the Judgment in such action is attached hereto. Furthermore, notice is hereby provided that the United States will rely upon the aforementioned prior felony drug offense convictions to seek an increased punishment for defendant as set forth in Title 21, United States Code, § 841(a)(1).

(Id. ) The Government attached to the Information a copy of the state court's Judgment, which is dated November 20, 1992. (Id. at 3-5.) The Information's Certificate of Service indicates that Assistant U.S. Attorney John C. McMillan, Jr. mailed "a true and correct copy" of the Information to both defense attorneys on April 6, 1995. (Id. at 2.) Defendant never filed a response to the Information.

On April 20, 1995, the Grand Jury returned a Superseding Indictment charging Defendant with the same three counts contained in the original Indictment, and additionally charging Defendant with manufacturing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (2) (Count 4). (Superseding Indictment, D.E. 44).

On March 4, 1996, the case was reassigned to the undersigned judge. (D.E. 156.) On February 13, 1997, trial began. (See D.E. 238.) On February 20, 1997, a jury found Defendant guilty of Counts 1, 2, and 3, and acquitted him of Count 4. (Jury Verdict, D.E. 243).

Prior to sentencing, the United States Probation Office prepared a revised Presentence Investigation Report ("PSR")¹ finding that Defendant's offenses of conviction involved 87.98 grams of cocaine base. (PSR ¶ 10.) Based upon the 87.98 grams of cocaine base involved in the offenses, and the 251 grams of cocaine hydrochloride found on his co-defendant which was included in Defendant's relevant conduct, Defendant had a base offense level of 32 under United States Sentencing Guideline ("U.S.S.G.") § 2D1.1.² (Id. ¶¶ 16-17.) Additionally, based on the application of the Section 851 enhancement, the revised PSR found that Defendant's convictions each carried a statutory penalty of 20 years to life imprisonment under 21 U.S.C. § 841(b)(1)(A). (Id. ¶ 59.) The revised PSR further found that Defendant met the criteria for "career offender" status under U.S.S.G. § 4B1.1 :

In addition to being older than 18 years at the time of the instant offense and the instant offense of conviction being a controlled substance felony offense, the defendant also has the required two prior felony convictions as reflected in the Criminal History Section of this report to deem him a career criminal. Since the Offense Statutory Maximum for the offense of conviction is life imprisonment, the offense level is 37 as required pursuant to § 4B1.1.

(Id. ¶ 23.) Finally, the revised PSR found that because Defendant is a Career Offender, his criminal history category was VI. (Id. ¶ 35.) Based on a total offense level of 37 and a criminal history category of VI, Defendant's guideline imprisonment range was 360 months to life imprisonment. (Id. ¶ 60.)

Defendant filed written Objections to the revised PSR, asserting only two legal objections. (Obj., D.E. 259 at 1-2.) Defendant did not object to the 87.98-gram quantity of crack cocaine the revised PSR attributed to him; in fact, he acknowledged that he was responsible for 87.98 grams of crack cocaine for sentencing purposes under Section 841. (See id. at 6-7.)

At the sentencing hearing, the Court asked Defendant (1) whether he had read the revised PSR and (2) whether he and his attorney had discussed the revised PSR. (Sentencing Hr'g Tr., D.E. 296 at 2:17-22.) Defendant answered "yes" to both questions. (Id. ) Defense counsel then raised three objections—the two legal objections contained in his written Objections to the revised PSR, and one additional factual objection not raised in the written Objections: "There is one factual objection, your Honor, that the defendant brought to my attention just this week.... It has to do with one of the convictions which he maintains is not his." (Id. at 3:2-6.) Defense counsel explained: "I had contacted Mr. Glover and asked him to notify me if something was wrong with the convictions." (Id. at 3:11-12.) Defendant then asserted that the revised PSR improperly included a prior conviction for robbery and battery in his criminal history and as one of three convictions used to determine his Career Offender status: "Mr. Glover tells me ... he doesn't know anything about this particular offense and this is not his." (Id. at 3:16-19.) However, defense counsel acknowledged that Defendant had a prior conviction for a violent offense, and a 1992 conviction for sale of cocaine. (Id. at 17:4-9.)

After hearing from both parties and the probation officer, the Court excluded the prior robbery and battery conviction from the Career Offender computation and struck it from the revised PSR, finding that it ultimately made no difference because Defendant still qualified as a Career Offender based on prior convictions for (1) aggravated battery on June 22, 1984, and (2) sale of cocaine on November 20, 1992, as set forth in the revised PSR. (Id. at 11:17 – 14:6; PSR ¶¶ 27, 34.)

THE COURT: ... He would still classify as a career offender based on the sale of cocaine conviction paragraph 35 in 92 and the aggravated battery conviction in 1984, with an '83 arrest date.

PROBATION OFFICER: Correct, your Honor.

Crime of violence and controlled substance offense.

MS. MARTIN [DEFENSE COUNSEL]: I would agree with what the Court just said, your Honor

(Id. at 11:24 – 12:6.) Later during the sentencing hearing, defense counsel acknowledged that Defendant was subject to an enhanced statutory penalty of 20 years to life imprisonment under 21 U.S.C. §§ 841(b)(1)(A) and 851 because he was accountable for more than 50 grams of crack cocaine, and his criminal history included the sale of cocaine conviction from 1992. (Id. at 18:14-19.)

Ultimately the Court adopted the factual findings and guideline applications as stated in the revised PSR (as modified at the sentencing hearing to exclude the robbery and battery conviction), (id. at 14:8-11), and found that Defendant qualified as a Career Offender, (id. at 23:9-14). The Court found that under Section 4B1.1, based on a statutory maximum of life imprisonment, Defendant's offense level was 37 with a Criminal History Category VI, resulting in a guideline range of 360 months to life, (id. at 14:14-19). The Court then sentenced Defendant to 360 months' imprisonment and 10 years of supervised release on each Count, to be served concurrently. (Id. at 24:20-24; see also Judgment, D.E. 265.)

Movant appealed, arguing solely that the Court erred by failing to instruct the jury on the defense of entrapment. (See Mandate, D.E. 320.) On July 3, 1998, the Eleventh Circuit Court of Appeals affirmed the Court's Judgment. (Id. ) Over the course of the next six years, Defendant filed three motions under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, (D.E. 326, 328, 335), each of which were dismissed, (D.E. 327, 329, 337).³ Defendant later filed two motions for reduction of sentence under 18 U.S.C. § 3582(c)(2), (D.E. 354, 389), each of which were denied, (D.E. 368, 393). The Eleventh Circuit Court of Appeals affirmed the Court's denial of Defendant's first 3582(c)(2) Motion, (D.E. 384); De...