United States v. Lewis

• Decision Date: 10 January 2020
• Docket Number: No. CR 08-0057 JB,CR 08-0057 JB
• Citation: 432 F.Supp.3d 1237
• Parties: UNITED STATES of America, Plaintiff, v. Jabsie Dwayne LEWIS, Defendant.
• Court: U.S. District Court — District of New Mexico

432 F.Supp.3d 1237

UNITED STATES of America, Plaintiff,

v.Jabsie Dwayne LEWIS, Defendant.

No. CR 08-0057 JB

United States District Court, D. New Mexico.

Signed January 10, 2020

John C. Anderson, United States Attorney, Paul H. Spiers, Adam S. Rowley, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff

Kari Converse, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, New Mexico, Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Sealed Motion to Reconsider Sealed Order Denying Motion for Relief Under Section 404 of the First Step Act, filed May 15, 2019 (Doc. 176)("Motion"). The primary issues are: (i) whether the Court erred, under the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018)("First Step Act"), by not granting Lewis an in-person sentencing hearing at which he could allocute; (ii) whether the Court erred in construing First Step Act motions for sentence reduction as 18 U.S.C. § 3582(c)(2) proceedings; (iii) whether the Court improperly relied on the lack of a United States Sentencing Commission Guidelines amendment regarding the First Step Act in determining Defendant Jabsie Dwayne Lewis' eligibility for First Step Act relief; (iv) whether the Court improperly restricted its ability to impose a sentence below the applicable Guidelines range based on Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ("Dillon"); and (v) whether the Court erred in applying the 2009 Guidelines manual, rather than the 2018 manual, to its sentencing decision. The Court concludes that (i) the Court did not err by not granting Lewis an in-person sentencing hearing, because the First Step Act does not require plenary resentencing and does not require a hearing at which the defendant is present; (ii) the Court, upon further review, concludes that First Step Act motions for sentence reduction are governed by 18 U.S.C. § 3582(c)(1)(B), and not by 18 U.S.C. § 3582(c)(2) ; (iii) the Court did not rely on the lack of a Guidelines amendment regarding the First Step Act in determining Lewis' eligibility for relief; (iv) the Court did not improperly restrict its ability to impose a sentence below the applicable Guidelines range, and it conducted a thorough review of the 18 U.S.C. § 3553(a) factors in determining Lewis' recalculated sentence; and (v) the Court, upon further review, concludes that the 2018 Guidelines manual applies, but that the same advisory range ensues under either manual, so the Guidelines calculation remains unchanged. Accordingly, the Court grants the Motion in part and denies it in part.

FACTUAL BACKGROUND

The Court outlined the facts and circumstances surrounding Lewis' offense in United States v. Lewis, 398 F.Supp.3d 945, 951 (D.N.M. 2019) (Browning, J.)("MOO"). The Motion raised no objection to the facts as presented in the MOO. See Motion at 1-9. The Court incorporates the MOO's facts here.

PROCEDURAL BACKGROUND

Lewis does not present any new evidence in his Motion, and he does not attack any of the Court's factual findings in the MOO. See Motion at 1-8. Instead, Lewis contends that: (i) the Court erred, under the First Step Act, by not granting Lewis an in-person sentencing hearing at which he could allocute; (ii) the Court erred in construing First Step Act motions for sentence reduction as 18 U.S.C. § 3582(c)(2) proceedings; (iii) the Court improperly relied on the lack of a Guidelines amendment regarding the First Step Act in determining Lewis' eligibility for First Step Act relief; (iv) the Court improperly restricted its ability to impose a sentence below the applicable Guidelines range based on Dillon v. United States; and (v) the Court erred in applying the 2009 Guidelines manual, rather than the 2018 manual, to its sentencing decision. See Motion at 1-9. The United States did not file a response. The Court held a hearing on June 5, 2019. See Clerk's Minutes, filed June 5, 2019 (Doc. 180).

1. The Motion.

On May 15, 2019, Lewis filed the Motion. See Motion at 9. In the Motion, Lewis asks the Court to reconsider its MOO. See Motion at 1. Lewis makes five arguments in the Motion.

First, Lewis argues that the Court erred in not granting him an in-person hearing, which he did not waive, and at which he intended to present additional information, including allocution. See Motion at 1. Lewis cites his notice of non-consent to Telephonic Hearing. See Non-Consent to Telephonic Hearing and Request for Postponement of Hearing, filed March 21, 2019 (Doc. 165)("Notice of Non-Consent"). Lewis contends that the Court should have read his Notice of Non-Consent and request for a hearing as a notice of intent to present additional facts not already before the Court. See Motion at 1-2. Lewis cites United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017), for the proposition that it is plain error to deny a defendant the right to allocute. See Motion at 2. Lewis contends that he did not waive his right to an in person hearing. See Motion at 1-2. Lewis also argues that the Court based its decision in the MOO "almost entirely on ten-year old information." Motion at 2. Lewis cites the relative lengths of the Court's discussion of Lewis' Letters in Support, see Reply to Response From Probation and Government to Emergency Motion to Resentence at 7-13, filed March 18, 2019 (Doc. 162)("Letters in Support"), and the Court's discussion of Lewis' criminal history and offense conduct as described in the PSR, see Motion at 2. Lewis argues that the holding in Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), that a district court may, at resentencing, consider a defendant's post-sentencing rehabilitation evidence, suggests that the "denial of the opportunity to present such evidence was error." Motion at 2-3. Lewis argues that a First Step Act § 404 proceeding is most analogous to a sentencing proceeding, governed by rule 42(a)(3) of the Federal Rules of Criminal Procedure, rather than to a sentencing correction, which rule 43(b)(4) of the Federal Rules of Criminal Procedure governs, and that accordingly, a defendant's presence at a First Step Act hearing is required. See Motion at 3. In support of this argument, Lewis refers to the First Step Act's use of the verb "impose." Motion at 3 (citing First Step Act § 404). Lewis argues that the "limited exception to the defendant's required [presence] at sentencing does not apply to statutes described by 18 U.S.C. § 3582(c)(1)(B)," but rather applies "only to proceedings that are authorized by Section 3582(c) itself" as a result of retroactive Guidelines changes or a Bureau of Prisons motion to reduce a sentence based on extraordinary and compelling reasons. Motion at 3-4.

Second, Lewis argues that, contrary to the Court's statement in the MOO that "First Step Act motions for sentence reduction are 18 U.S.C. § 3582(c)(2) proceedings," First Step Act motions to reduce sentences are not 18 U.S.C. § 3582(c)(2) proceedings, because the First Step Act modifies statutory ranges and does not effectuate a Guidelines amendment. Motion at 4 (quoting MOO, 398 F.Supp.3d at 973 ). Lewis argues that 18 U.S.C. § 3582(C)(2)'s text refers only to cases where a defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission ...." Motion at 4 (quoting 18 U.S.C. § 3582(c)(2) ). Lewis argues, accordingly, that § 404 establishes a freestanding remedy which is less restrictive than an 18 U.S.C. § 3582(c)(2) proceeding. See Motion at 5.

Third, Lewis objects to the Court's statement in the MOO's footnote 14 that " ‘The United States Sentencing Commission has yet to promulgate a Guidelines amendment to officially effectuate the First Step Act.’ " Motion at 5 (quoting MOO, 398 F.Supp.3d at 973 n.14 ). Lewis argues that the Sentencing Commission has stated that the First Step Act contains no directives to the Sentencing Commission. See Motion at 5 (citing U.S.S.C. Office of Education and Sentencing, Practice Insider Express Special Edition, available at https://www.ussc.gov/sites/default/files/pdf/.../2019-special_FIRST-STEP-Act.pdf ("U.S.S.C. First Step Act Practice Insider")). Lewis also argues that the Sentencing Commission "cannot move on any amendments until it has sufficient voting members to promulgate amendments," and that the Sentencing Commission currently has only two voting members. Motion at 5-6 (citing U.S.S.C. First Step Act Practice Insider).

Fourth, Lewis argues that Dillon is irrelevant to a First Step Act § 404 proceeding, because a First Step Act proceeding is not a Guidelines amendment case. See Motion at 6. Lewis argues, accordingly, that "there is no limitation on a Court's ability, at sentencing, to impose a sentence below the applicable guideline range," in a First Step Act case. Motion at 6. Lewis cites to several federal district court cases imposing post-First Step Act sentences below the advisory Guidelines range. See Motion at 7.

Fifth, Lewis argues that the Court erred in concluding that the 2009 Guideline manual, rather than the 2018 manual, applied to its sentencing decision. See Motion at 8. Lewis argues that the "general rule is that a defendant should be sentenced under the law in effect at the time of sentencing." Motion at 8. Lewis contends that § 3553(a)(4) "states that the guidelines ‘in effect on the date the defendant is sentenced’ apply, except as provided in § 3742(g)(1)." Motion at 8 (quoting 18 U.S.C. § 3553(a)(4)(A)(ii) ). Lewis contends that the only exception to § 3553(a)(4)(A) other than § 3742(g)(1) is the Ex Post Facto Clause and that, absent an "ex post facto violation, a court must apply the current guidelines at resentencing, must apply other law as it stands at the time of...