United States v. Montgomery
| Decision Date | 08 October 2021 |
| Docket Number | Case No. 1:04-cr-20046-6 |
| Citation | 582 F.Supp.3d 485 |
| Parties | UNITED STATES of America, Plaintiff, v. Edres MONTGOMERY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Kevin Mulcahy, Eric Doeh, U.S. Attorneys, U.S. Attorney's Office, Detroit, MI, Timothy P. McDonald, U.S. Attorney, U.S. Department of Justice, Detroit, MI, J. Michael Buckley, U.S. Attorney, DOJ-USAO, Bay City, MI, for Plaintiff.
This matter is before this Court following the Sixth Circuit's reversal and remand of Defendant Edres Montgomery's ("Defendant") resentencing. See United States v. Montgomery , No. 04-20046-06, 2020 WL 736219 (E.D. Mich. Feb. 13, 2020), vacated and remanded , 998 F.3d 693 (6th Cir. 2021) ; ECF Nos. 347; 348; 355; 364. For the reasons explained hereafter, the Probation Department has recalculated Defendant's Guidelines range using the United States Sentencing Guidelines ("Guidelines") as they existed at his February 13, 2020 resentencing. ECF No. 373 at PageID.2266 (Amended Presentence Investigation Report) (filed under seal).
This case has received periodic attention for over 16 years.1 Compare ECF No. 74 (Second Superseding Indictment, October 2005), with ECF No. 368 (Order for Full Presentence Report, August 2021). In October 2007, a jury found Defendant guilty of, inter alia ,2 one count of conspiracy to distribute five kilograms or more of cocaine or 50 grams or more of cocaine base ("crack") in violation of 21 U.S.C. § 841(b)(1)(A) ("Count 1"), and one count of distribution of five grams or more of crack in violation of 21 U.S.C. § 841(a)(1) ("Count 8"). ECF No. 190.
In March 2008, Defendant was sentenced to life imprisonment on Count 1 and to 360 months’ imprisonment on Count 8, to run concurrently. ECF No. 238. On appeal, the Sixth Circuit affirmed the Judgment, and the Supreme Court later denied Defendant's petition for a writ of certiorari. See United States v. Montgomery , 358 F. App'x 622 (6th Cir. 2009), cert. denied , 559 U.S. 1081, 130 S.Ct. 2122, 176 L.Ed.2d 746 (2010).
On December 21, 2018, the First Step Act of 2018 ("1SA") was signed into law.3 The 1SA was intended, in relevant part, to rectify sentencing penalties that disparately affected people convicted of crack and powder cocaine offenses. See United States v. Boulding , 960 F.3d 774, 782 (6th Cir. 2020). To that end, the 1SA made certain provisions of the nonretroactive Fair Sentencing Act of 2010 ("FSA")4 apply retroactively to people, like Defendant, who were first sentenced before August 3, 2010.5
In January 2019, Defendant filed a 1SA motion pro se to reduce his sentence.6 See ECF No. 337. The Government opposed Defendant's Motion. ECF No. 343.
In February 2020, this Court exercised its discretion under the 1SA and granted Defendant's Motion in part, making two reductions in Mr. Montgomery's sentences. See ECF Nos. 346; 347. First, this Court reduced Defendant's Count 1 sentence from life to 275 months. See ECF No. 346 at PageID.2181. His Count 1 conviction for 50 grams or more of crack fell under 21 U.S.C. § 841(b)(1)(A), requiring life imprisonment. Id. at PageID.2176. But the FSA moved 50 grams of crack to § 841(b)(1)(B), requiring at least 120 months’ imprisonment and eight years’ supervised release. Id. Second, this Court reduced Defendant's Count 8 sentence from 360 months to 145 months. Id. at PageID.2181. His Count 8 conviction for distribution of five grams or more of crack fell under 21 U.S.C. § 841(b)(1)(B), requiring at least 120 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(B) (2009). But the FSA moved five grams of crack to 21 U.S.C. § 841(b)(1)(C), imposing a maximum of thirty years’ imprisonment with six years’ supervised release. ECF No. 346 at PageID.2179–80. Thus, this Court reduced Defendant's total sentence from life to 35 years’ imprisonment.
Defendant appealed, arguing that "the district court applied the wrong Criminal History Category, placing [him] in a higher Sentencing Guidelines range." United States v. Montgomery , 998 F.3d 693, 696 (6th Cir. 2021). He contended that was so because, at his first sentencing, he received "one extra criminal history point for committing the offense for which he was being sentenced within two years of release from prison." Id. at 700. The United States Sentencing Commission ("Commission") eliminated the recency penalty in 2010. Id. The effect, according to Defendant, was to overstate his criminal history as Category VI instead of Category V. Id.
The Montgomery court agreed, finding that Defendant and the Government both invited Defendant's failure to raise the Guidelines amendment in the district court because they "uncritically assumed that his Criminal History Category had not changed since his first sentencing." Id. at 699. In addition, the Montgomery court found the error to be plain and has, thus, remanded the case for resentencing, concluding that it would be "difficult to see how the interests of justice would be served by requiring Montgomery to linger longer in prison because no one in the district court, the court itself included, noticed that the way we calculate a defendant's Criminal History Category had changed between his two sentencings." Id. at 700.
At the Sixth Circuit's direction, this Court directed the Probation Officer to update Defendant's Presentence Investigation Report ("PSR") to recalculate Defendant's Guidelines range using the Guidelines as they existed at Defendant's resentencing, which it did. See id. at 701 ; ECF Nos. 355; 368; 373 (filed under seal). His resentencing is scheduled for 3:30 PM EST on November 9, 2021. ECF No. 368.
The Montgomery court invested significant effort to clarify the continuum regarding "the difference between waiver, invited error, and forfeiture." See generally Montgomery , 998 F.3d at 693–701. But, respectfully, in its five-paragraph discussion related to the 1SA, the Montgomery court did not address the Sixth Circuit's foray into a nationwide circuit split some 66 days earlier. See id. at 696–97, 700–01 ; see also United States v. Maxwell , 991 F.3d 685 (6th Cir. 2021).
The split concerns whether the 1SA requires district courts to pair the FSA's modifications ("FSA modifications") with the Guidelines either as they existed at the defendant's original sentencing or as they exist at the defendant's resentencing. Before addressing the merits of Defendant's resentencing, a discussion of that issue is necessary.
In 1984, Congress made the Guidelines mandatory and binding on all judges. See Mistretta v. United States , 488 U.S. 361, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Therefore, judges were required to sentence within the Guidelines range calculated at sentencing. But in United States v. Booker , the Supreme Court severed that provision and held that Guidelines ranges are advisory: one of eight factors that judges must consider. See 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On November 1, 2010, the Commission enacted Amendment 742 into the Guidelines.7 Amendment 742 eliminated § 4A1.1(e),8 which called for additional criminal-history points depending on the "recency" of a defendant's past sentences. See United States v. Davy , 433 F. App'x 343, 346 n.2 (6th Cir. 2011) ( the change). Compare U.S. SENT'G GUIDELINES MANUAL § 4A1.1(e) (U.S. SENT'G COMM'N 2009), with id. (U.S. SENT'G COMM'N 2018).
The Commission "studied and considered whether to make Amendment 742 retroactive, but it ultimately decided against retroactivity." United States v. Koski , No. 4:08CR3148, 2011 WL 1400004, at *1 (D. Neb. Apr. 12, 2011), aff'd on other grounds , 409 F. App'x 971 (8th Cir. 2011). In September 2010, the Commission issued a memorandum that compared "the estimated impact of the Recency Amendment" between offenders sentenced before and after the FSA.9 In sum, the Commission found that, if retroactive, Amendment 742 would (1) "have no effect" on more than 65% of offenders;10 (2) benefit African-American offenders less than others;11 and (3) benefit "drug trafficking and firearms offenders" more than others.12
In Dillon v. United States , the Supreme Court held that such "retroactivity determinations ... are [indisputably] binding." 560 U.S. 817, 130 S. Ct. 2683, 2693, 177 L.Ed.2d 271 (2010).
Indeed, courts have consistently held that Amendment 742 is not retroactive because the Commission specifically determined it is not. E.g. , Corrado v. United States , No. 08-CR-2018-L-1, 2011 U.S. Dist. LEXIS 90071, at *2 (S.D. Cal. Aug. 12, 2011) (); United States v. Wayne , 516 F. App'x. 135, 137 (3d Cir. 2013) (); United States v. Johnson , 703 F.3d 464, 467–68, 469–71 (8th Cir. 2013) ().
The Sixth Circuit has also cosigned Amendment 742's nonretroactivity. In United States v. Bonds , the Sixth Circuit held "as a matter of first impression" that applying a retroactive amendment does not give courts "the authority to consider the non-retroactive Amendment 742 in determining eligibility for a § 3582(c)(2) reduction." 839 F.3d 524, 526 (6th Cir. 2016).
Therefore, Amendment 742 applies only to defendants sentenced after August 3, 2010. Accord ECF No. 238 (sentencing Defendant without Amendment 742 on March 25, 2008).
Enter the First Step Act of 2018 ("1SA").13 In relevant part, the 1SA gives federal courts discretion to reduce sentences resulting from pre-FSA violations of 21 U.S.C. §§ 841(b)(1)(A) and (B) as if the FSA modifications applied.14 Id. ; 18 U.S.C. § 3582(c) ; see also Terry v. United States , ––– U.S. ––––, 141 S. Ct. 1858, 210 L.Ed.2d 108 (2021) (...
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