United States v. Hammond, Criminal Action No. 92-471 (BAH)

• Citation: 351 F.Supp.3d 106
• Decision Date: 28 November 2018
• Docket Number: Criminal Action No. 92-471 (BAH)
• Parties: UNITED STATES of America, v. Navarro A. HAMMOND, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

351 F.Supp.3d 106

UNITED STATES of America,
v.
Navarro A. HAMMOND, Defendant.

Criminal Action No. 92-471 (BAH)

United States District Court, District of Columbia.

Signed November 28, 2018

351 F.Supp.3d 111

Clifford Robert Cronk, III, Kacie McCoy Weston, U.S. Attorney's Office, Washington, DC, for United States of America.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Nearly 25 years ago, Navarro Hammond was sentenced to 380 months' imprisonment for possession with intent to distribute cocaine base (or "crack") and marijuana, and for maintaining a premise for the distribution of a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 841(b)(1)(D), and 856(a)(2). The 31-year length of Hammond's sentence reflected his career-offender designation, pursuant to § 4B1.1 of the then-mandatory United States Sentencing Guidelines ("Guidelines"), based on his two prior convictions for a "crime of violence," as such crimes were once defined under § 4B1.2 of the Guidelines.

Due to substantial changes in federal sentencing since Hammond began serving his 380-month sentence, he claims that if he were sentenced today, the now-advisory Guidelines range would be 92 to 115 months' imprisonment, see Def.'s Second Supp. Mot. Vacate at 1, ECF No. 86, and, further, that these changes should be applied to benefit him now. Over the last decade, Hammond filed a motion, under 18 U.S.C. § 3582, asking for a sentence reduction, see Def.'s Mot. Modification Sentence ("Def.'s Mot. Modify."), ECF No. 76, and a motion, under 28 U.S.C. § 2255, asking that his sentence be vacated and that he be resentenced under the current Guidelines, see Def.'s Mot. Vacate, Set Aside, Correct Sentence, ECF No. 83, as supplemented, Def.'s Supp. Mot. Vacate ("Def.'s Supp. § 2255 Mot."), ECF No. 85, and Def.'s Second Supp. Mot. Vacate. Hammond's § 2255 motion seeks relief that, if awarded, encompasses the relief sought under his sentence-reduction motion.

351 F.Supp.3d 112

¹ To prevail on the broader motion, Hammond must survive the gauntlet of procedural obstacles that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") erects and then establish his right to relief under an especially high merits standard. Hammond has done just that, and his § 2255 motion is granted. This relief renders his sentence-reduction motion, under 18 U.S.C. § 3582, moot and that motion is denied as such.

I. BACKGROUND

On July 10, 1992, Hammond was arrested in connection with an investigation into the murder of a D.C. Corrections Officer, see Presentence Report ("PSR") at ¶¶ 3–5, ECF No. 96, who was "in route to D.C. Superior Court in order to testify against" a close associate of Hammond "in an unrelated pending matter which occurred in a D.C. correctional facility," id. at ¶ 4. This murder was "carried out ... to prevent [the officer] from testifying." Id. The arresting officers searched Hammond's home and discovered 110.5 grams of marijuana, 166.6 grams of crack, 80.773 grams of heroin, and drug paraphernalia, with Hammond's prints on a bag of marijuana and a box of cocaine base. Id. at ¶¶ 6–7. Hammond was subsequently convicted, in 1993, at a jury trial on charges of possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and maintaining a premise to manufacture, distribute, store, and use a controlled substance, in violation of 21 U.S.C. § 856(a)(2). See Judgment in a Criminal Case ("Judgment") at 1, ECF No. 42.²

At Hammond's sentencing, in March 1994, the presiding judge generally adopted "the factual findings and guideline application in the [PSR]." Judgment, Statement of Reasons ("SOR"), at 5, ECF No. 42. According to his PSR, Hammond had, at that time, two prior felony convictions for a crime of violence: a conviction, at age 17, in the District of Columbia Superior Court for robbery, PSR at ¶ 25; and a conviction, at age 18, in the District of Columbia Superior Court for murder while armed, arising from the defendant fatally shooting a robbery victim, id. at ¶ 26. The PSR reported that those prior convictions, in combination with Hammond's instant drug convictions, subjected Hammond to the Guidelines' career-offender designation, under U.S.S.G. § 4B1.1. Id. at ¶¶ 21, 31.

To qualify as a "career offender," a defendant at least 18 years old must face sentencing for a felony that was "either a crime of violence or a controlled substance offense" and have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). In 1993, the Guidelines defined "crime of violence" in three ways. First, under the "elements clause," crimes of violence included any felony that

351 F.Supp.3d 113

"has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(1)(i) (1993). Second, under the "enumerated-felonies clause," crimes of violence included "burglary of a dwelling, arson, or extortion" or a felony that "involves use of explosives." Id. § 4B1.2(1)(ii) (1993). Third, under the "residual clause," crimes of violence included any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id.³ Without stating which definition of crime of violence applied to either of Hammond's prior convictions, the district court judge sentenced Hammond as a career offender. Judgment, SOR, at 4.

Thus, as a career offender, Hammond's criminal history category under the operative Guidelines was VI. U.S.S.G. § 4B1.1 (1993) ; see also Judgment, SOR, at 4. Additionally, given that in 1993 the statutory maximum for a violation of 21 U.S.C. § 841(a) involving more than 50 grams of cocaine base was life imprisonment, see id. § 841(b)(1)(A) (1993), Hammond's offense level under the guidelines was 37. U.S.S.G. § 4B1.1 (1993) ; see also Judgment, SOR, at 4. A combined criminal history category of VI and offense level of 37 resulted in a Guidelines range of 360 months to life imprisonment. U.S.S.G. Ch. 5 Pt. A (1993) ; see also Judgment, SOR, at 4.

At the time of Hammond's sentencing, Congress's instruction that "court[s] shall impose a sentence of the kind, and within the range, referred to [in the Guidelines]," 18 U.S.C. § 3553(b)(1), was still effective. Thus, Hammond was sentenced on his cocaine-base conviction to 380 months' imprisonment, to run concurrently with a 37-month sentence on the marijuana conviction and a 240-month sentence on the premises conviction. Judgment at 2. According to the Bureau of Prisons, Hammond's scheduled release date for his federal convictions is July 15, 2020. See Find an Inmate, FEDERAL BUREAU OF PRISONS , https://www.bop.gov/inmateloc/ (search "Navarro Hammond").

On Hammond's direct appeal, the D.C. Circuit affirmed the convictions, rejecting several arguments about the district court's evidentiary rulings at trial. United States v. Hammond , 52 F.3d 1123 (table) (D.C. Cir. 1995).

Hammond filed his first § 2255 motion in June 2001. Def.'s First Mot. Vacate, ECF No. 55. By that time, this case had been reassigned to another judge since the original sentencing judge was no longer serving. See Order (Feb. 6, 2002), ECF No. 56. Hammond's motion, and a later-filed supplement, see Def.'s Supp. Authority, ECF No. 57, sought to correct his sentence following Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which together articulated the Sixth Amendment's guarantee that all facts, other than a prior conviction, increasing a criminal penalty beyond a statutory maximum must be proved to a jury beyond a reasonable doubt. See Def.'s First Mot. Vacate at 3–15; Def.'s Supp. Authority at 1–2. In April 2005, this § 2255 motion was denied because neither Supreme Court decision had been made retroactive. See Order (Apr. 26, 2005) at 1, ECF No. 65. Hammond never received a

351 F.Supp.3d 114

certificate of appealability. See Order (Aug. 30, 2005), ECF No. 71 (district court denial of certificate of appealability); Order (Mar. 20, 2008), ECF No. 75 (circuit court denial of certificate of appealability).

Shortly before denial of Hammond's first § 2255 motion, federal sentencing was affected by the first of several legal shifts at the heart of this case. In January 2005, the Supreme Court issued United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), ruling that the mandatory Guidelines suffered from the same constitutional infirmity identified in Apprendi and Blakely. Booker , 543 U.S. at 233–34, 125 S.Ct. 738. As a remedy, the provision making the Guidelines mandatory was severed. Id. at 245, 125 S.Ct. 738 (invalidating 18 U.S.C. § 3553(b)(1) ). Thus, since Booker , the Guidelines have been advisory.

Next, in November 2007, the United States Sentencing Commission promulgated Amendment 706 to the Guidelines, which reduced by two offense levels the base offense level in the Drug Quantity Table corresponding to a given crack cocaine drug...