United States v. Pettaway
| Docket Number | CRIMINAL 4:06cr98 |
| Decision Date | 29 November 2021 |
| Parties | UNITED STATES OF AMERICA, v. MARLON PETTAWAY, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter is before the Court on defendant Marlon Pettaway's ("Defendant" or "Pettaway") motion, filed with the assistance of counsel, seeking a sentence reduction pursuant to Section 404(b) of the First Step Act of 2018 Pub. L. No. 115-391, 132 Stat 5194, 5222 (2018) . ECF No. 77. The Government filed a brief in opposition, ECF No. 82, and Defendant filed a reply, ECF No. 83. After the motion was fully briefed, the Court issued an Order requesting supplemental filings in light of emerging case law and apparent deficiencies in the manner in which Defendant's Guidelines and statutory punishments were calculated at sentencing. ECF No. 84. The Government and Defendant have now filed their supplemental briefs. ECF Nos. 87, 89. For the reasons set forth in detail below, Defendant's First Step Act motion is GRANTED; however, the reduced sentence imposed by the Court is significantly longer than the sentence requested by the defense due to applicable statutory mandatory minimums.
Following a bench trial conducted in January of 2007, Pettaway was convicted of multiple federal felonies associated with a drug trafficking conspiracy, to include Engaging in a Continuing Criminal Enterprise ("CCE"), in violation of 21 U.S.C. § 848; Possessing with the Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (B); Brandishing a Firearm during Drug Trafficking in violation of 18 U.S.C. § 924 (c) (1) (A); and two counts of Use of a Firearm During Drug Trafficking, in violation of 18 U.S.C. § 924(c)(1)(A), (C) . ECF No. 78. At sentencing, Pettaway's advisory Guideline range was "life" on the CCE count and several associated counts, plus 57 years consecutive on the § 924(c) counts. Id. The Court sentenced Pettaway to life imprisonment plus 57 years consecutive. ECF No. 37.
Focusing on the § 924(c) consecutive sentence imposed in this case, at the time Pettaway committed his unlawful acts, § 924(c) mandated a five-, seven-, or ten-year minimum sentence for a defendant's first § 924(c) conviction and an enhanced 25-year consecutive mandatory minimum sentence for second or subsequent § 924(c) convictions. See 18 U.S.C. § 924(c)(1)(A), (C). It was well-established at that time that the enhanced 25-year statutory punishment for second and subsequent § 924(c) convictions applied within a single criminal prosecution. See United States v. Camps, 32 F.3d 102, 106-09 (4th Cir. 1994). As part of the First Step Act of 2018, Congress modified the enhanced punishment under § 924(c)(1)(C) by limiting its applicability to recidivist offenders that commit new § 924(c) offenses "after a prior conviction under [§ 924(c)] has become final." First Step Act § 403 (emphasis added); see United States v. Jordan, 952 F.3d 160, 172 (4th Cir. 2020), cert, denied, 141 S.Ct. 1051 (2021). The effect of this recent statutory change eliminated the application of the severe 25-year "stacked" punishment for second and subsequent § 924(c) convictions within a single prosecution for first time § 924(c) offenders.[1]
Here, Pettaway was sentenced to a seven-year consecutive term of imprisonment for his first § 924(c) conviction because the firearm involved in such crime was brandished. Although the "default" punishment for each of Pettaway's second and third § 924(c) "use of a firearm" convictions was five years, Pettaway qualified for the enhanced § 924(c)(1)(C) 25-year consecutive punishment for each of these convictions. Accordingly Pettaway was sentenced to a total of 57 years consecutive on his three § 924(c) counts, the mandatory minimum under § 924(c). Because Pettaway had not previously been convicted of a § 924(c) felony, it is undisputed that his three § 924(c) convictions would require a minimum sentence of only 17 years consecutive under current law (7+5+5), rather than 57 years consecutive (7+25+25).
As discussed in greater detail below, the favorable statutory modifications to § 924(c)(1)(C) that were adopted in § 403 of the First Step Act were not made retroactive to criminal defendants, like Pettaway, serving sentences that have been final for many years. First Step Act § 403(b). Pettaway does, however, qualify for discretionary sentencing relief under § 404 of the First Step Act, a section that is retroactively applicable to certain defendants with long-final cocaine base convictions. The critical dispute before this Court is whether the Court has the authority to apply the reduced § 924(c) (1) (C) statutory punishments established by § 403 when it "imposes" a new sentence under § 404 of the First Step Act. For the reasons explained below, and notwithstanding the fact that Pettaway's 57-year consecutive sentence "is undoubtedly severe-perhaps too severe," the Court finds that it "ha[s] no discretion to impose a lesser punishment" on the § 924(c) counts as part of a non-plenary resentencing under § 404 of the First Step Act.[2] Lovely v. United States, 175 F.2d 312, 317 (4th Cir. 1949). Rather," [a] ny mitigation of the [§ 924(c)] sentence in line with the present views of Congress must . . . be sought at the hands of the Executive where such discretion is lodged," id., or alternatively, through a compassionate release motion, United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020).
The Court begins its analysis of Pettaway's motion by reviewing his eligibility for sentencing relief under § 404 of the First Step Act. Section 404 of the First Step Act is a "remedial" statutory change "intended to correct earlier statutes' significant disparities in the treatment of cocaine base (also known as crack cocaine) as compared to powder cocaine." United States v. Wirsing, 943 F.3d 175, 176-77 (4th Cir. 2019). Section 404 grants this Court discretion to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 [("FSA")[3] (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed." First Step Act § 404(b). It is undisputed that § 404 applies retroactively to defendants like Pettaway with long-final sentences; in fact, § 404 specifically targets defendants that committed cocaine base offenses many years prior to the passage of the First Step Act.
The threshold question when evaluating a § 404 motion is whether the defendant before the court was convicted of a "covered offense." Here, the parties now agree that at least one of Pettaway's offenses (the cocaine base offense charged in Count Three) is a "covered offense," rendering Pettaway "eligible" for a discretionary sentence reduction under § 404 of the First Step Act. See Wirsing, 943 F.3d at 186 ("All defendants who are serving sentences for violations of 21 U.S.C. § 841 (b) (1) (A) (iii) and (B)(iii) . . . are eligible to move for relief under that Act."); ECF No. 87, at 1, 8 (conceding Defendant's eligibility). Because Count Three is a covered offense, the "sentencing package doctrine" renders it unnecessary for this Court to decide whether Pettaway's CCE conviction is also a covered offense.[4]
Because Pettaway is eligible for § 404 relief, the Court next considers the controlling statutory punishment and the advisory Guideline range that will guide the Court's determination of whether sentencing relief is appropriate in this case. Before addressing the crux of the parties' dispute (the statutory-punishment applicable to Defendant's § 924(c) offenses) the Court reviews several corrections and updates relevant to resentencing.
As set forth in the parties' briefs, it is undisputed that this Court should correct two "facial errors" made at Pettaway's original sentencing. ECF No. 87, at 9-10. First, while the error did not directly impact the sentence imposed in this case, Pettaway's CCE conviction (Count Two) requires a 20-year mandatory minimum sentence, not a 30-year minimum sentence as erroneously indicated in Pettaway's Presentence Investigation Report ("PSR"). See 21 U.S.C. § 848.[5] Second, the advisory Guideline "grouping analysis" was incorrectly computed in this case, and Pettaway should not have received a 2-level Guideline grouping enhancement. Accordingly, when "imposing" a new sentence, the Court will apply the proper statutory mandatory minimum on the CCE count and will not increase Pettaway's offense level based on an erroneous Guideline "grouping" calculation.
With those agreed facial errors corrected, the Court is required to recalculate the advisory Guideline range. See United States v. Collington, 995 F.3d 347, 355 (4th Cir. 2021) ( that "in the First Step Act context . . . district courts must correct original Guideline errors and apply intervening case law made retroactive to the original sentence"). At the time Pettaway was sentenced, his Guideline calculation was driven by the quantity of narcotics attributed to him, the majority of which involved cocaine base. However, as argued by Pettaway, retroactive drug weight amendments to the Guidelines passed after his sentencing must be applied during the recalculation of the advisory Guideline range, and such amendments benefit Pettaway by reducing his drugweight base offense level to a point below the minimum Guideline base offense applicable to a CCE conviction. U.S.S.G. §§ 2D1.1, 2D1.5.
Specifically after application of the retroactive drug weight amendments, the drug quantity attributed to Pettaway corresponds to an offense level 32 on the Guideline drug weight table, and after adding...
To continue reading
Request your trial