United States v. King

Decision Date05 August 2013
Docket NumberNo. 99 CR 952-1,99 CR 952-1
CourtU.S. District Court — Northern District of Illinois

Chief Judge Rubén Castillo


On May 18, 2012, Defendant Thomas King moved this Court to reduce his sentence pursuant to18 U.S.C. § 3582(c)(2) and Part A of Amendment 750 to the United States Sentencing Guidelines (the "Guidelines"). On February 14, 2013, the Court granted King's motion and reduced his sentence to a term of 170 months incarceration. This reduced sentence represents a downward departure from the low-end of the applicable amended Guidelines sentencing range of 235 months incarceration. Immediately after the Court issued its Order, the Government moved to stay, arguing principally that the Court had committed an error in imposing the reduced sentence as a result of either failing to apply or incorrectly applying the current version of the policy statement at Section 1B1.10 of the Guidelines, titled "Reduction in Term of Imprisonment as a Result of Amended Guideline Range, Policy Statement." Subsection (b)(2)(A) of Section 1B1.10 states, in part, that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range." In Dillon v. United StatesStates,––– U.S.––––, ––––, 130 S. Ct. 2683, 2690-94 (2010), the Supreme Court held this policy statement to be mandatory and binding on sentencing courts. With the Government's consent, the Court converted its motion to stay into a motion for reconsideration. (R. 957, Min. Entry.) For the reasons set forth below, the Government's motion to reconsider is denied.

I. Background

On February 9, 2000, King was indicted by a federal grand jury of one count of conspiracy to distribute in excess of 50 grams of cocaine base (otherwise known as "crack" or "crack cocaine") in violation of 21 U.S.C. § 841(a)(1) (Count I); one count of possession with intent to distribute 123.5 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count II); and three counts of using a communications facility to facilitate a drug crime in violation of 21 U.S.C. § 843(b) (Counts III-VI). On July 5, 2000, this Court entered King's plea of not guilty. (R. 120, Min. Entry.) King, along with six of his co-defendants, proceeded to trial commencing on January 16, 2001. (R. 269-279, 280-282, 284-305, Trial.) At trial, King took the stand and testified in his own defense with respect to his role in the offense—perjuriously, as was later uncovered. On February 13, 2001, the trial concluded, and the case was submitted to the jury. (R. 307, Min. Entry.) On the same day, the jury returned a verdict against King, finding him guilty on all six counts of the indictment. (R. 309, Verdict.)

Using the then-mandatory 2000 version of the Guidelines,1 the Court calculated that King's applicable base offense level, for Counts I through VI based on "at least 1.5 kilograms" of crack cocaine, was 38. See USSG § 2D1.1(c)(4) (2000 ed.); (R. 444, Sent. Order). The Court determined that King's prior misconduct placed him in Criminal History Category III. See USSG § 4A1.1 (2000 ed.); (R. 444, Sent. Order). In addition, the Court made a two-level upward adjustment to King's offense level for obstruction of justice based on his perjurious testimony at trial, resulting in a total adjusted offense level of 40. See USSG § 2D1.1(c)(3) (2000 ed.); USSG § 3C1.1 (2000 ed.). This produced a mandatory sentencing range of 360months to life incarceration. See 21 U.S.C. § 841(b)(1)(A)(ii) and (iii) (2000 ed.); USSG, ch. 5, pt. A, Sentencing Table (2000 ed.). The Court therefore sentenced King to a term of 360 months incarceration on Count I, to a concurrent sentence of 240 months incarceration on Count II, and to concurrent sentences of 48 months incarceration on each of Counts III through VI. (R. 444, Sent. Order.)

King appealed both his conviction and his sentence to the United States Court of Appeals for the Seventh Circuit. United States v. McGee, 408 F.3d 966 (7th Cir. 2005). The Seventh Circuit affirmed King's conviction, but it ordered a limited remand with respect to his sentence pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). 408 F.3d at 989. The Seventh Circuit held that in light of United States v. Booker, the Guidelines were no longer mandatory, and the Court had violated the Sixth Amendment in making its factual findings. Id. at 987 (citing Booker, 543 U.S. 220 (2005) (Stevens, J., opinion of the Court in part—merits majority opinion)).

Under a Paladino remand, in the case of a sentence rendered under the Guidelines before Booker relegated them to advisory status, the Seventh Circuit "order[s] a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence." 401 F.3d at 484. "If so, [the Seventh Circuit] will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable." Id. (citing Booker, 543 U.S. at 268 (Breyer, J., opinion of the Court in part—remedial majority opinion)). "If, on the other hand, the judge states on limited remand that he would have imposed a different sentence had he known the guidelines were merely advisory, [the Seventh Circuit] will vacate the original sentence and remand for resentencing." Id.

On the limited Paladino remand, this Court determined that it was "unable to say that it would have imposed the same sentences in this unusual drug conspiracy case if it had known that the Sentencing Guidelines were merely advisory." (R. 701, Min. Entry.) Therefore, the Court "respectfully request[ed] that all defendants' cases be fully remanded for new resentencing proceedings." (Id.) Accordingly, the Seventh Circuit vacated King's sentence and remanded the case for a full resentencing. United States v. McGee, 157 F. App'x 894 (7th Cir. 2005). After several delays due to the filing of various briefs and assorted motions, including numerous motions for extensions of time made by both King and the Government, the Court decided to further delay King's resentencing until the Supreme Court issued its opinion in Kimbrough v. United States, 127 S. Ct. 2933, No. 06-6330 (Cert. Granted June 11, 2007), which was argued on October 2, 2007, 2007 WL 2847117, No. 06-6330 (Oral Argument Oct. 7, 2007). (R. 780, Min. Entry.) The Supreme Court issued its opinion in Kimbrough, 552 U.S. 85 (2007), on December 10, 2007.

When a case is remanded for resentencing, the court must use the Guidelines in effect at the time of the original sentencing, even if they have changed in the meantime. 18 U.S.C. § 3742(g)(1); see also United States v. Tanner, 544 F.3d 793, 797 (7th Cir. 2008). Nevertheless, a resentencing court is not precluded from considering subsequent retroactive amendments to the Guidelines. See, e.g., United States v. Bruce, 550 F.3d 668, 676 (7th Cir. 2008) ("[T]he decision to apply the retroactivity in any individual case lies within the sound discretion of the district court.") (citing 18 U.S.C. § 3742(g)(1); 18 U.S.C. § 3582(c)(2); Tanner, 544 F.3d at 797; United States v. Lloyd, 398 F.3d 978, 979 (7th Cir. 2005)) (internal citations omitted); accord United States v. Taylor, 648 F.3d 417, 427-28 (6th Cir. 2011) ("We do not read Congress's intent in [Section 3742(g)(1)] . . . to be so broad as to foreclose or discourage the district court fromconsidering postsentencing amendments to the Guidelines when determining an appropriate sentence."). In keeping with this principle, the Government expressed its position that when resentencing King, the Court should apply Amendment 706, which had not yet become retroactive, but which the United States Sentencing Commission (the "Commission") added to the list of amendments that may be applied retroactively effective March 3, 2008. (R. 800, Gov.'s Supp. Sent. Mem. at 4, 8.) The Government further stated that Amendment 706, which amended Section 2D1.1, would decrease King's base offense level from 38 to 36. (Id. at 7.)

On January 29, 2008, the Court resentenced King using the 2000 version of the Guidelines.2 (R. 813, Min. Entry.) The Court also applied Amendment 706 which reduced the base offense level for "at least 1.5 kilograms" of crack cocaine from 38 to 36. See USSG § 2D1.1(c)(1) (2007 ed.); USSG, App. C., Amdt. 706 (2007). After the Court added the two-level upward adjustment for obstruction of justice, King's total adjusted offense level on resentencing was 38. See USSG § 2D1.1(c)(1) (2007 ed.); USSG § 3C1.1 (2000 ed.). With a Criminal History Category of III, this resulted in an advisory Guidelines sentencing range of 292 to 365 months incarceration. See USSG ch. 5, pt. A, Sentencing Table (2000 ed.). In the exercise of its discretion, the Court resentenced King to 264 months incarceration on Count I, 240 months incarceration on Count II, and 48 months incarceration on Counts III to VI, all to run concurrently. (R. 808, Amend. J.) King appealed his new sentence, and the Seventh Circuit summarily affirmed. See United States v. King, 296 F. App'x 540 (7th Cir. 2008).

II. Procedural History
A. King's motion for a reduced sentence

On May 18, 2012, King moved this Court to reduce his sentence pursuant to Section 3582(c)(2) and Part A of Amendment 750 to the Guidelines, which took effect on November 1, 2011, and made permanent adjustments to the offense levels in Section 2D1.1 for various quantities of crack cocaine. See USSG, App. C, Amdt. 750 (2011); (R. 930, Def.'s Mot.). King calculated his amended Guidelines offense level to be 34, which produced an applicable Guidelines sentencing range of 188 to 235 months incarceration. (R. 930, Def.'s Mot. at 5.) King pointed out that at his 2008 resentencing the Court departed roughly 9.5% from the low-end of the applicable Guidelines sentencing range and asked for a comparable reduced sentence of 170...

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