United States v. Razz

• Decision Date: 22 May 2019
• Docket Number: CASE NO. 05-80011-CR-LENARD
• Citation: 379 F.Supp.3d 1309
• Parties: UNITED STATES of America, v. Ronald RAZZ, Defendant.
• Court: U.S. District Court — Southern District of Florida

379 F.Supp.3d 1309

UNITED STATES of America,

v.Ronald RAZZ, Defendant.

CASE NO. 05-80011-CR-LENARD

United States District Court, S.D. Florida.

Signed May 22, 2019

Carolyn Bell, Stephanie D. Evans, United States Attorney's Office, West Palm Beach, FL, Anne Ruth Schultz, United States Attorney's Office, Miami, FL, for United States of America.

ORDER GRANTING MOTION FOR APPOINTMENT AS COUNSEL AND DENYING MOTION TO REDUCE SENTENCE UNDER THE FIRST STEP ACT (D.E. 158)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendant Ronald Razz's Motion to Reduce Sentence under the First Step Act and Motion for Appointment as Counsel, ("Motion," D.E. 158), filed through counsel on April 18, 2019. The Government filed a Response on May 3, 2019. ("Response," D.E. 161.) At the Court's request, the United States Probation Office also filed a Response with the Court which has been provided to both Parties but has not been filed on the docket. ("Prob. Resp.") On May 9, 2019, Defendant filed a single Reply the Government and the Probation Office's Responses. ("Reply," D.E. 164). Upon review of the Motion, Responses, Reply, and the record, the Court finds as follows.

I. Background

Defendant was charged by Second Superseding Indictment with maintaining a place for the manufacture, distribution, and use of crack cocaine, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2 (Count One); possessing with intent to distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (Count Two); and possessing with intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count Three). (D.E. 51.) This case was originally assigned to United States District Judge Kenneth L. Ryskamp.

On January 30, 2006, the Government filed and served upon Defendant an Information pursuant to 21 U.S.C. § 851¹ stating that it intended to seek an enhanced statutory penalty under Section 841 based upon six prior state court convictions for felony drug offenses.² (D.E. 101.) Defendant later filed a response to the Information challenging the Section 851 enhancement. (D.E. 115.)

On February 1, 2006, a jury found Defendant guilty of Counts One, Two, and Three. (See Jury Verdict, D.E. 110; Trial Tr., Feb. 1, 2006 at 601:10-21.)³ The jury further found that the offense charged in Count Two involved at least 50 grams of crack cocaine, and that the offense charged in Count Three involved at least 5 grams of crack cocaine. (See Jury Verdict at 1; Trial Tr., Feb. 1, 2006 at 601:10-21.)

Prior to sentencing, the United States Probation Office prepared a revised Presentence Investigation Report ("PSR") finding that Defendant's offenses involved 142.2 grams of crack cocaine. (PSR ¶¶ 15, 23.) Relevant here, the PSR found that the offense charged in Count Two involved 100.2 grams of crack cocaine, (id. ¶¶ 10-11), and the offense charged in Count Three involved 10 grams of crack cocaine, (id. ¶ 9). Based on the 142.2 grams of crack cocaine, Defendant's base offense level was 32 pursuant to the drug quantity tables in United States Sentencing Guideline ("U.S.S.G.") 2D1.1(a)(3) (2005), which provides that an offense involving at least 50 grams but less than 150 grams of cocaine base has an offense level of 32. (Id. ¶ 23.)

The PSR further found that because Defendant was over eighteen years old and had at least two prior convictions for controlled substance offenses,⁴ he qualified as a Career Offender under U.S.S.G. § 4B1.1. (Id. ¶ 29.) As to Counts Two and Three, because the statutory maximum penalty under 21 U.S.C. § 841(b)(1)(A) & (B) with the Section 851 enhancement was life imprisonment, pursuant to Section 4B1.1(b)(1) Defendant's offense level was 37. (Id. ¶¶ 29, 98.) Because his career offender offense level under Section 4B1.1 was greater than his drug quantity offense level under Section 2D1.1, the career offender offense level applied. (Id. ¶ 29 (citing U.S.S.G. § 4B1.1 ).⁵ ) The PSR further found that because Defendant had 18 criminal history points, he had a criminal history category of VI. (Id. ¶ 64.) Based on a total offense level of 37 and a criminal history category of VI, Defendant's guideline imprisonment range was 360 months to life. (Id. ¶ 99.)

However, as to Count Two, Defendant was subject to a statutory mandatory minimum life sentence based upon the Section 851 enhancement. (See id. ) Specifically, as to Count Two, Defendant was sentenced under 21 U.S.C. § 841(b)(1)(A), which provides, in pertinent part: "If any person commits a violation of this subparagraph ... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence." Pursuant to U.S.S.G. § 5G1.1(c)(2), the Court may impose a sentence "at any point within the applicable guideline range, provided that the sentence ... is not less than any statutorily required minimum sentence." Because Count Two carried a statutorily-required minimum sentence of life, Defendant's guideline imprisonment range was life. (PSR ¶ 99.)

On April 14, 2006, Judge Ryskamp adopted the revised PSR and imposed a sentence of life imprisonment, consisting of concurrent terms of 240 months as to Count One, life imprisonment as to Count Two, and 360 months as to Count Three. (See Sentencing Hr'g Tr. at 8:1, 10:9-23; Judgment, D.E. 119 at 2.) Judge Ryskamp also imposed a total term of ten years' supervised release, consisting of concurrent terms of three years as to Count One, ten years as to Count Two, and eight years as to Count Three. (Judgment at 3.)

Defendant appealed his convictions asserting arguments not relevant here.⁶ On September 28, 2008, the Eleventh Circuit issued its Mandate affirming the Defendant's convictions and sentence. (Mandate, D.E. 138.)

Defendant moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 based upon the ineffective assistance of counsel. (D.E. 142.) On May 18, 2009, Judge Ryskamp denied the 2255 Motion. (D.E. 144.)

On July 22, 2011, Defendant filed a Motion for Modification of Sentence under 18 U.S.C. § 3582(c)(2). (D.E. 145.) Therein, he sought a reduction of sentence pursuant to Amendments 748 and 750 to the Sentencing Guidelines, which lowered the base offense levels for particular crack cocaine quantities listed in U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. See U.S.S.G. App. C, Amends. 748, 750. On December 1, 2011, Judge Ryskamp denied the motion. (D.E. 151.)

Defendant filed an application for executive clemency, which President Barack Obama granted on October 6, 2016. (D.E. 152.) The Clemency Order commuted Defendant's sentence to a total of 360 months' imprisonment, leaving intact the terms of supervised release and all other conditions imposed by Judge Ryskamp. (Id. at 3; see also Am. Judgment, D.E. 153.)

On November 18, 2016, Defendant filed a pro se Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), seeking a sentence reduction pursuant to Guideline Amendment 782, which reduced by two levels the base offense levels found in the Drug Quantity Table in U.S.S.G. § 2D1.1 for most drug offenses. (D.E. 154.) On May 1, 2019, the Court denied that Motion. (D.E. 160.)

On April 18, 2019, Defendant filed the instant Motion to Reduce Sentence under the First Step Act and Motion for Appointment as Counsel. (D.E. 158.) He seeks a reduced sentence pursuant to Section 404 of the First Step Act of 2018, and the appointment of the Federal Public Defender.⁷

II. Applicable Law

Under Section 404(b) of the First Step Act of 2018, the Court may "impose a reduced sentence as if sections 2 or 3 of the Fair Sentencing Act of 2010 ... were in effect at the time the covered offense was committed." Pub. L. No. 115-391, 132 Stat. 5194. Under Section 404(a), a " ‘covered offense’ means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ... that was committed before August 3, 2010." Id. ⁸

Section 2 of the Fair Sentencing Act modified the statutory penalties under 21 U.S.C. §§ 841(b)(1)(A) & (B).⁹ See Pub. L. No. 111-220. Specifically, prior to the Fair Sentencing Act—and at the time of Defendant's sentencing— Section 841(b)(1)(A) provided, in relevant part, that any person who violates Section 841(a) in a case involving 50 grams or more of cocaine base:

shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.... If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release .... [A]ny sentence under this subparagraph shall ... if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment.

21 U.S.C. § 841(b)(1)(A)(iii) (2005). The Fair Sentencing Act increased the threshold amount of cocaine base to trigger the 10-year mandatory minimum sentence in Section 841(b)(1)(A)(iii) from 50 grams to 280 grams. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), abrogated on other grounds by Dorsey v. United States, 567 U.S. 260, 280-81, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

Similarly, prior to the Fair Sentencing Act—and at the time of Defendant's Sentencing— Section 841(b)(1)(B) provided, in relevant part, that any person who violates Section 841(a) in a case involving 5 grams or more of cocaine base:

shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.... If any person commits such a violation after a prior conviction for a felony drug offense has

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