United States v. Graham

• Decision Date: 25 March 2022
• Docket Number: CRIMINAL ELH-11-483
• Parties: UNITED STATES OF AMERICA v. GREGORY GRAHAM, Defendant.
• Court: U.S. District Court — District of Maryland

UNITED STATES OF AMERICA
v.
GREGORY GRAHAM, Defendant.

CRIMINAL No. ELH-11-483

United States District Court, D. Maryland

March 25, 2022

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

Defendant Gregory Graham, who is self-represented, entered a plea of guilty in April 2012 to one count of conspiracy to commit Hobbs Act robbery, and one count of possession of a firearm in furtherance of a crime of violence. ECF 82. In July 2012, the Court sentenced Graham to 168 months of imprisonment. ECF 103 (Judgment). Graham is currently serving his sentence at USP Beaumont. See ECF 173-2.

Graham has moved for compassionate release. ECF 161. He has also filed a supplement to his request. ECF 171. And, he has submitted requests for relief based on the “SAFE Justice Act of 2021.” ECF 165; ECF 166; see also ECF 171. I shall refer to ECF 161, ECF 165, ECF 166, and ECF 171 collectively as the “Motion.” The Office of the Federal Public Defender (“FPD”) has declined to supplement the Motion. ECF 164.

The government opposes the Motion (ECF 173, the “Opposition”), supported by several exhibits. ECF 173-1 to ECF 173-3. Graham has not replied, and the time to do so has passed.

No hearing is necessary to resolve the Motion. For the reasons that follow, I shall deny the Motion.

1

I. Background

Graham and a codefendant, Lamonte Rice, were indicted on September 7, 2011. ECF 1. They were charged with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count One); three counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count Two, Count Four, and Count Six); and two counts of possessing and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Three and Count Five). Id. A Superseding Indictment was filed on March 7, 2012 (ECF 56), which added detail as to Count One.

In connection with the conspiracy charge, Count One included as “Overt Acts” several robberies committed by the defendants. These occurred on October 29, 2010; November 8, 2010; November 18, 2010; November 28, 2010; and December 6, 2010. Id. ¶¶ 7(a)-7(e). Count Two charged defendants with the robbery of a Royal Farms Store in Essex, Maryland on October 29, 2010. Id. at 6. Count Three, under 18 U.S.C. § 924(c), was predicated on the Hobbs Act conspiracy (Count One) as well as the robbery charge contained in Count Two. Id. at 7. As noted, Count Two concerned the robbery of a Royal Farms store in Essex on October 29, 2010. Count Four charged armed Hobbs Act robbery of the same Royal Farms store on November 18, 2010. Id. at 8. In Count Five, defendants were charged under 18 U.S.C. § 924(c) in relation to Counts One and Four. Id. at 9. Count Six charged the robbery of another Royal Farms store in Essex on December 6, 2010. Id. at 10.

Pursuant to a Plea Agreement (ECF 86), Graham entered a plea of guilty on April 4, 2012, to Count One and Count Three of the Superseding Indictment. ECF 82. The Plea Agreement included a stipulated Statement of Facts, which established that Graham committed the crimes

2

charged in Counts One and Three of the Superseding Indictment, “as well as the substantive crimes charged in Counts Two, Four, and Six of the Superseding Indictment.” ECF 86 at 5.

According to the Statement of Facts in the Plea Agreement, from October 2010 through December 2010, Graham, Rice, and others conspired to commit armed robberies of businesses engaged in interstate commerce. ECF 56 at 2; ECF 86 at 4. Some coconspirators were present at the robberies, and others participated by providing “surveillance assistance and instructions on how to complete the robberies” via text messages and phone calls. ECF 86 at 4.

On or about October 29, 2010, Graham and his coconspirators agreed to rob a Royal Farms convenience store located on Middleborough Road in Essex, Maryland. Id. During the robbery, Graham and a second suspect, both wearing dark clothing and masks, entered the store and ordered the clerk to open the cash register. Id. Graham and the other suspect took money from the register, approximately five packs of cigarettes, and then fled. Id. Graham brandished a firearm during this robbery. Id.

The next robbery occurred on November 18, 2010, at the same Royal Farms store in Essex. Id. Two suspects entered the store, and one of the suspects came behind the counter, pointed a handgun at the clerk's head, and pushed the clerk to the other end of the counter. Id. This suspect ordered the clerk to open the safe, which the clerk told the suspect she could not do. Id. The suspect then instructed the clerk to open the cash register and give him all the money; the clerk complied. Id. The second suspect, carrying a plastic bag, went behind the counter and opened the case containing cigarettes. Id. Both suspects then fled. Id. “During the course of and in furtherance of the conspiracy, the Defendant provided the firearm that was used in the robbery.” Id.

3

The Statement of Facts also describes a robbery of a Royal Farms store on South Marlyn Avenue in Essex on December 6, 2010. Id. at 5. Two suspects entered the store. Id. Once inside, one suspect pointed “a white plastic bag with what appeared to be a long gun inside” at the clerk. Id. The suspect forced the clerk behind the counter and ordered him to open the safe. Id. “Later investigation revealed that the purported long gun was actually a vacuum cleaner tube.” Id. The clerk entered his combination into the safe, but was unable to open it. Id.

One suspect took the clerk to the back with the rest of the employees, and ordered a second clerk to the front register area. Id. This second clerk opened the cash registers, but was unable to open the safe because the first clerk had already entered a combination. Id. The suspect took the money from the cash registers and tried to have the first clerk open the safe again, but the first clerk was still unable to do so. Id. “Before the robbery, the Defendant, through telephone conversations and text messages, ordered the suspects to commit the December 6, 2010 robbery and provided instructions on how to complete the robbery.” Id.

Sentencing was held on July 26, 2012. ECF 102. At the time, Graham was 24 years old. See Presentence Report (“PSR”), ECF 175 at 1a.^[1] The PSR reflected a combined adjusted offense level of 29 as to Count One, inclusive of related conduct. Id. ¶ 43. After deductions for acceptance

4

of responsibility, the defendant had a final offense level of 26. Id. ¶ 45. For Count Three, which required a mandatory minimum sentence of seven years, consecutive, the sentencing guidelines corresponded to the statutory minimum. See Id. ¶ 46.

The PSR reflected that defendant had several prior criminal convictions. Id. ¶¶ 49-58. This yielded a subtotal criminal history score of eight points. Id. ¶¶ 59-60. And, two points were added because Graham was on probation at the time the instant offenses were committed. Id. Thus, as calculated by the PSR, Graham had a total of ten criminal history points, yielding a criminal history category of V. Id. ¶ 61. However, the PSR noted: “The Court may want to consider a downward departure under U.S.S.G. §4A1.3(b)(1) for over representation of criminal history.” Id. ¶ 98.

In particular, in 2007 Graham was convicted in the District Court for Baltimore City of possession of a controlled dangerous substance that was not marijuana, and sentenced to one year unsupervised probation before judgment. Id. ¶ 49. Graham was 19 years old at the time of his arrest for this offense. Attorney representation was unknown. Id.

In 2008, Graham pled guilty in the Circuit Court for Baltimore County to possession of marijuana, and was sentenced to one day time served. Id. ¶ 50. The same year, Graham was convicted in the District Court for Baltimore City of possession of marijuana, and was sentenced to one year suspended and one year of probation. Id. ¶ 52. A violation warrant was issued in 2009 and defendant was held on bond. In 2010, probation was revoked. Id. Graham was released from custody in 2010. Id.

In 2010, Graham pled guilty in the Circuit Court for Baltimore County to possession with intent to distribute cocaine. Id. ¶ 54. He was sentenced to ten years of imprisonment, with nine years, seven months, and fourteen days suspended, and five years of probation. Id. A violation of probation warrant was issued in 2011, and defendant was held without bond. Id. In 2012, Graham

5

pled guilty to the violation and was sentenced to seven years of imprisonment, dating from September 6, 2011. Id. Then, in 2011 Graham pled guilty in the District Court for Baltimore County to driving without a license, and was sentenced to 35 days of time served. Id. ¶ 58.

With a final offense level of 26 and a criminal history category of V, the advisory sentencing guidelines (“Guidelines” or “U.S.S.G.”) called for a period of incarceration ranging from 110 to 137 months, plus 84 months consecutive as to Count Three, the § 924(c) charge. Id. ¶ 70.

Defendant is 5'5” tall and, at sentencing, he weighed 148 pounds. Id. ¶ 83. The PSR noted that Graham had only met his father once in his life, when he was too young to remember. Id. ¶ 76. His mother frequently left Graham alone, and was physically abusive. Id.

Graham reported that he had used marijuana daily for about ten years, and ecstasy daily for about eight years, although he said he had been clean for 18 months. Id. ¶ 85. He claimed he was “not a big drinker, ” although the PSR noted that medical records from the Baltimore City Detention Center listed one of his diagnoses as alcohol dependence. Id. ¶ 86. Graham also reported a history of depression, anxiety, and insomnia. Id. ¶ 81.

As of sentencing, Graham had one child from a prior relationship. Id. ¶ 79. Defendant described himself as close with his fiancé's three children. Id. In addition,...