United States v. Rose

• Decision Date: 24 May 2019
• Docket Number: 03-CR-1501 (VEC)
• Parties: UNITED STATES of America, v. Jason ROSE, Junior Robinson, Defendants.
• Court: U.S. District Court — Southern District of New York

379 F.Supp.3d 223

UNITED STATES of America,

v.Jason ROSE, Junior Robinson, Defendants.

03-CR-1501 (VEC)

United States District Court, S.D. New York.

Signed May 24, 2019

Laurie Korenbaum, United States Attorney, Amy Ruth Lester, Danielle Renee Sassoon, Nicolas Tyler Landsman Roos, United States Attorney's Office, SDNY, New York, NY, for Plaintiff.

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge

Defendants Jason Rose and Junior Robinson have each moved for a reduced sentence under the First Step Act of 2018 (hereinafter "First Step Act"). Pub. L. No. 115-391, 132 Stat. 5194 (2018). Most relevant here, Section 404 of the First Step Act makes retroactive certain provisions of the Fair Sentencing Act of 2010 (hereinafter "Fair Sentencing Act") and empowers district courts to "impose a reduced sentence" as if the Fair Sentencing Act had been in effect at the time of the defendant's offense. Under the First Step Act, the district court must first determine a defendant's eligibility for relief and then decide whether a reduced sentence is appropriate. What the district court may appropriately consider when imposing a reduced sentence presents an unsettled question of law. This Court concludes that both Defendants are eligible for relief under the First Step Act and that the Court may appropriately consider post-sentencing factual developments using the framework established in 18 U.S.C. § 3553(a).

I. BACKGROUND

Defendants Jason Rose and Junior Robinson were each sentenced to a mandatory minimum sentence of twenty-five years' imprisonment after being convicted at trial in 2005. Dkts. 231, 242. They were each convicted of conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), Dkt. 109 at 1–3, 14,¹ and of possession of a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c), Dkt. 109 at 14–15.

Based on the version of the Controlled Substances Act in effect when Defendants were sentenced, distribution of 50 grams or more of crack cocaine (cocaine base) carried a mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A) (effective November 2, 2002 to March 8, 2006). For defendants like Mr. Rose and Mr. Robinson, each of whom had a prior felony drug conviction, the mandatory minimum doubled to twenty years. Id. ("If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years."). In addition, the firearms offense carried a mandatory consecutive sentence of not less than five years, bringing the aggregate minimum to twenty-five years. 18 U.S.C. § 924(c)(1)(A) ("[A]ny person who, during and in relation to any ... drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years.").

The Honorable Shira Scheindlin, who was originally assigned to this case, sentenced both Mr. Robinson and Mr. Rose to the twenty-five year mandatory minimum sentence. Dkts. 231, 242. For purposes of calculating Defendants' sentencing ranges under the advisory United States Sentencing Guidelines, Judge Scheindlin found by a preponderance of the evidence that both Defendants were responsible for conspiring to distribute 1.5 kilograms of crack cocaine. Robinson Sentencing Tr. at 13; Rose Sentencing Tr. at 11–12.

In response to substantial public opinion that the disparities in the statutory penalties imposed for offenses involving powder cocaine and crack cocaine were fundamentally unfair, in 2010, Congress passed the Fair Sentencing Act. Pub. L. 111-220, 124 Stat. 2372 (2010). The Fair Sentencing Act reduced, but did not entirely eliminate, those disparities by increasing the drug quantities triggering mandatory minimums for crack offenses "from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10–year minimum." Dorsey v. United States , 567 U.S. 260, 269, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). This had the effect of reducing the powder-to-crack ratio from 100-to-1 to 18-to-1. Id. at 269, 132 S.Ct. 2321.

The Fair Sentencing Act took effect on August 3, 2010, and applied only to sentences imposed thereafter.

Id. at 264, 132 S.Ct. 2321. Had the Fair Sentencing Act been in effect at the time Defendants' sentences were imposed, 50 grams of crack cocaine—the amount for which the jury found each Defendant responsible beyond a reasonable doubt—would have triggered the 5-year minimum, rather than the 10-year minimum.² That five-year minimum would also have been doubled for these Defendants because they both had a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A)–(B). Thus, for the drug conspiracy count, had Defendants been sentenced after the enactment of the Fair Sentencing Act, their mandatory minimum sentence would have been 10 years, rather than 20. Because the five-year mandatory consecutive sentence for the weapons count would have remained unchanged, Defendants would have faced an aggregate minimum of 15 years under the Fair Sentencing Act, as opposed to 25 years.

In 2018, Congress passed the First Step Act, which made retroactive the crack cocaine minimums in the Fair Sentencing Act. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). District courts across the country, including within this circuit, have been divided as to defendants' eligibility for relief and the exact nature of the proceedings that sentencing judges should be conducting pursuant to the now-retroactive Fair Sentencing Act, including whether district courts may consider facts that have occurred post-sentencing.

Defendants Rose and Robinson, both of whom are still incarcerated based on their sentences in this case, seek reduced sentences of time served. After Rose filed his motion for relief, the Government initially agreed that he was eligible for a reduced sentence, although it argued that he should not receive any relief because of his post-sentencing disciplinary record. Dkt. 390. Soon thereafter, the Government reversed its position and now argues that Defendants are not eligible for relief because their offense conduct involved more than 1.5 kilograms of crack cocaine. Dkt. 400; Dkt. 401; May 13, 2019 Hearing Tr. at 3.

II. DISCUSSION

Section 2 of the Fair Sentencing Act increased the threshold quantities of crack cocaine necessary to trigger mandatory minimum sentences under 21 U.S.C. § 841(b)(1). Pursuant to § 404(b) of the First Step Act, "[a] court that imposed a sentence for a covered offense may ... impose a reduced sentence as if section[ ] 2 ... of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." Section 404(a) defines "covered offense" as "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."

The parties disagree as to Defendants' eligibility for relief under § 404(a) but agree that, as to any eligible defendant, this Court should consider factual developments that occurred after the defendant's original sentencing, including post-sentencing disciplinary records and evidence of rehabilitation. As elaborated below, the Court concludes that both Defendants are eligible for relief under the First Step Act and that the Court may appropriately consider all relevant facts as of the date a reduced sentence is imposed.

A. Eligibility

Defendants are eligible to seek relief under § 404 of the First Step Act because the penalties associated with their statute of conviction were among those amended by the Fair Sentencing Act. The Government argues that the Court should assess eligibility on the basis of Defendants' actual conduct, rather than the statute of conviction. Under that approach, because Judge Scheindlin found by a preponderance of the evidence that Defendants were responsible for 1.5 kilograms of crack cocaine, an amount which exceeds the revised 280-gram threshold, the "statutory penalties" for Defendants' conduct were not "modified" by the Fair Sentencing Act. The Government's approach misreads the text of the First Step Act, undermines the purpose of the Act, and is inconsistent with the decisions of the vast majority of courts that have decided this issue.

The Government's reading of § 404(a) depends on two erroneous interpretative choices. First, the Government construes the dependent clause, "the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010" (hereinafter "penalties clause"), as modifying the noun "violation," rather than modifying the phrase "Federal criminal statute." Next, the Government construes "violation" to mean the actual conduct underlying the offense, rather than the elements of the offense.

When given its most natural reading, the "penalties" clause modifies the adjacent noun phrase, "Federal criminal statute." As a general principle, courts interpret the text of criminal statutes in a manner consist with "ordinary English grammar" and rules of usage. Flores-Figueroa v. United States , 556 U.S. 646, 650, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). One such rule is that a modifier is presumed to apply to the noun or pronoun closest to it. See Lopez v. Gonzales , 549 U.S. 47, 56, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (explaining that courts must not "divorce a noun from the modifier next to it without some extraordinary reason"); NRDC v. FDA , 884 F.Supp.2d 127, 141–42 (S.D.N.Y. 2012) ("The [‘notice’] clause is setoff by commas and immediately precedes the words ‘issue an order withdrawing approval,’ indicating that the ‘notice’ clause...