United States v. Lewis, No. CR 08-0057 JB

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
• Citation: 398 F.Supp.3d 945
• Parties: UNITED STATES of America, Plaintiff, v. Jabsie Dwayne LEWIS, Defendant.
• Decision Date: 21 May 2019
• Docket Number: No. CR 08-0057 JB

398 F.Supp.3d 945

UNITED STATES of America, Plaintiff,
v.
Jabsie Dwayne LEWIS, Defendant.

No. CR 08-0057 JB

United States District Court, D. New Mexico.

Filed May 21, 2019

398 F.Supp.3d 947

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, Albuquerque, New Mexico and Monnica Lynn Barreras, Law Office of Monnica L. Barreras, LLC, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Emergency Motion to Reduce Sentence Pursuant to the First Step Act of 2018 Immediate Release Eligible, filed February 11, 2019 (Doc. 153)("Motion"). The primary issues are: (i) whether, pursuant to section 404 of the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ("First Step Act"), Defendant Jabsie Dwayne Lewis is eligible for a sentence reduction; and (ii) whether, considering the 18 U.S.C. § 3553(a) factors, the Court should reduce Lewis' term of imprisonment from 188 months to 151 months, resulting in his immediate release. The Court concludes that (i) Lewis is eligible for a sentence reduction, because he meets the First Step Act's eligibility requirements, and (ii) considering the 18 U.S.C. § 3553(a) factors and Lewis' amended United States Sentencing Guidelines ("U.S.S.G.") range pursuant to the First Step Act, the Court will not reduce Lewis' term of imprisonment from 188 months. The Court denies the Motion.

398 F.Supp.3d 948

FACTUAL BACKGROUND

The Court takes the facts from the Presentence Investigation Report, filed April 10, 2019 (Doc. 169)("PSR"). No one has objected to the PSR's recitation of the facts or requested an evidentiary hearing to present more facts; the PSR's facts thus will serve as the Court's findings of fact for purposes of this sentencing.

Lewis was born in Albuquerque, New Mexico, to Gregory Adolph and Jamesetta Lewis, whose relationship ended because of their mutual incarcerations. See PSR ¶ 70, at 32. Throughout Lewis' childhood, his parents struggled with drug and alcohol addiction, "and were in and out of prison," and consequently, Lewis' maternal and paternal grandmothers, both diabetic and mobile only with the assistance of walkers, primarily raised Lewis. PSR ¶ 71, at 32. Lewis has three siblings and five paternal half-siblings, but was not in contact with most of them at the time the PSR was written. See PSR ¶¶ 72-74, at 32-33. Lewis had nine children at the time the PSR was written, and some have lived with him for extended time periods. See PSR ¶¶ 77-84, at 34-36. During the presentence investigation, Lewis' grandmother "expressed her concern and support" for Lewis, "indicated he has always been good to her," and stated that he "has a good heart and is a good father." PSR ¶ 75, at 34. Although Lewis has lived for most of his life in Albuquerque, he has lived for short periods in Dallas, Texas; Houston, Texas; Beaumont, Texas; and Atlanta, Georgia. See PSR ¶ 76, at 34.

Regarding Lewis' physical condition, the PSR reports that he suffered multiple gunshot wounds, but was in good health at the time the PSR was written, although he suffered from seasonal allergies for which he was not prescribed any medication. See PSR ¶¶ 86-87, at 36. Lewis "denied any ... mental health issues" at the time the PSR was written, but reported meeting with a prison psychologist during one of his periods of incarceration, and Lewis stated that his meetings with the psychologist "helped." PSR ¶ 88, at 37. The PSR reports that, on December 19, 2007, Lewis "underwent a mental health evaluation and all results were normal." PSR ¶ 88, at 37.

Regarding Lewis' history with substance abuse, the PSR reports that Lewis first consumed alcohol at age 14 -- at the time the PSR was written, Lewis was 30 years old -- and last consumed alcohol "a few months prior to his arrest for the instant offense." PSR ¶ 89, at 37. Lewis "first smoked marijuana at age 13 and by age 16, he was smoking marijuana on a daily basis," continuing "up until his arrest for the instant offense." PSR ¶ 90, at 37. Lewis "first ingested powder cocaine in 1997," used it "every weekend until 2000," and "denied any recent powder cocaine use." PSR ¶ 91, at 37. In 1998, the Second Judicial District Court in Albuquerque, New Mexico, referred Lewis to Drug Court, but after three months in the program, Lewis was terminated because of noncompliance. See PSR ¶ 95, at 38. Lewis "first used hallucinogenic mushrooms in 1998," explaining that "he was in drug court and was drug tested on a regular basis," so he used hallucinogenic mushrooms because he was never tested for them. PSR ¶ 92, at 37. Lewis first smoked cocaine base¹ in 2001 and continued "up

398 F.Supp.3d 949

until his arrest for the instant offense," reporting that, "if I had the money, I was getting high." PSR ¶ 93, at 37. Lewis tried ecstasy for the first time in 2006, and used it "whenever he was able to get it," because he "was not tested for ecstasy while on state probation/parole." PSR ¶ 94, at 38. Lewis "advised that while on state probation/parole, he was required to attend substance abuse counseling," but the United States Probation Office ("USPO") could not locate records confirming whether he attended. PSR ¶ 95, at 38.

Regarding education and vocational skills, the PSR reports that Lewis dropped out of high school in eleventh grade, at which time he had "earned 9.5 credits and his accumulative [sic] grade point average was 1.131. His class rank was 519 out of 616." PSR ¶ 96, at 38. Lewis completed his General Educational Development ("GED") in 2000, while incarcerated at the Penitentiary of New Mexico in Santa Fe, New Mexico. See PSR ¶ 97, at 38. Lewis reported no vocational skills or specialized training, but stated that, every time he gets out of jail, he works for Elite Auto Detail (formerly Details on Wheels) in Albuquerque. See PSR ¶¶ 97-99, at 38. The PSR also described other short-term or part-time jobs that Lewis has held, although the USPO could not locate employment records to corroborate that information. See PSR ¶¶ 100-02, at 39. Lewis reported no financial assets and only one liability, an unpaid telephone bill. See PSR ¶ 104, at 39.

Lewis had multiple arrests, which did not enter into his criminal history category calculation, for Simultaneous Possession of Drugs and Firearms, Possession of a Controlled Substance with Intent to Deliver, Possession of Drug Paraphernalia, Disorderly Conduct, Possession of Marijuana (less than 0.01 ounce), Eluding a Police Officer (vehicle), Distribution of a Controlled Substance (First Offense), Possession of a Controlled Substance, and Possession of a Firearm by Felon. See PSR ¶¶ 55-58, at 28-30. Lewis had several other arrests that did not count for criminal history points, as well as multiple probation violations, as detailed in the PSR. See PSR ¶¶ 59-68, at 30-31. The PSR sets out the Plea Agreement's factual basis in paragraphs 8 through 19. See PSR ¶¶ 8-19, at 6-8. In the Plea Agreement, Lewis agreed that the Court may rely on the PSR's facts to determine his sentence. See Plea Agreement ¶ 9, at 5, filed November 3, 2009 (Doc. 75).²

1. The Defendant's Sentencing Memorandum.

Lewis filed Defendant Jabsie Lewis' Sentencing Memorandum and Objections to the Presentence Report, filed April 5, 2010 (Doc. 90)("Lewis Memo."). In the Lewis Memo., Lewis requested that the Honorable C. LeRoy Hansen, then-Senior United States District Judge for the United States District Court of the District of New Mexico, impose a sentence of less than 57 months, permit him to serve his time at a minimum-security facility close to Beaumont, Texas, and to participate in drug treatment, namely, the Federal Bureau of Prisons ("BOP")'s 500-hour drug treatment program. See Lewis

398 F.Supp.3d 950

Memo. at 1. Although Lewis acknowledged that his Plea Agreement precluded him from arguing for downward consideration, he presented facts to support his argument that he was not a career offender. See Lewis Memo. at 3. Lewis objected that, although he was eighteen years old at the time of the underlying offense, and the offense is a felony controlled-substance offense, thereby satisfying the first two elements of United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2009)("U.S.S.G.")'s³ § 4B1.1(a)'s career offender definition,⁴ he did not satisfy the definition's third element. See Lewis Memo. at 3-4. Lewis contended that he did not satisfy the third element of the Guidelines' career offender definition, because he did not have two prior felonies, as U.S.S.G. § 4A1.2(a)(1) and (2) define prior felonies, of a crime of violence or a controlled substance offense. See Lewis Memo. at 4. Lewis argued the two prior sentences that the USPO uses in its Pre-Sentence Investigation Report -- Form 13 ("Form 13") to qualify Lewis as a career offender did not satisfy U.S.S.G. § 4A.12(a)(2)'s prerequisites, because there is no evidence of an intervening arrest...