United States v. Russell
| Decision Date | 23 April 2021 |
| Docket Number | 3:05-CR-00257-SLB-HNJ-10 |
| Parties | UNITED STATES OF AMERICA, v. DARRYL DWAYNE RUSSELL, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
This matter comes before the court on four pro se motions filed by Defendant Darryl Dwayne Russell: (1) a "Motion to Correct an Illegal Sentence," (doc. 816)1; (2) a "Motion for Additional Authority Pursuant to Motion to Correct an Illegal Sentence," (doc. 817); (3) a motion for relief pursuant to the First Step Act of 2018, (doc. 837); and (4) a motion for compassionate release due to COVID-19, (doc. 839). In his first two motions, Mr. Russell argues that his sentence must be corrected because it was improperly enhanced in violation of his constitutional rights. (Doc. 816); (doc. 817). Mr. Russell also argues that he should be resentenced pursuant to the First Step Act because it changed the penalties for his convictions and because his sentence was unjustly enhanced based on prior convictions. (Doc. 837). Finally, he seeks compassionate releasepursuant to 18 U.S.C. § 3582(c)(1)(A) because he asserts that he is at elevated risk from the current Covid-19 pandemic. (Doc. 839). After considering the submissions of the parties, the court finds that Mr. Russell's first three motions are due to be denied, but his motion for compassionate release pursuant to Section 3582(c)(1)(A) is due to be granted.
In 2005, Mr. Russell was indicted along with 21 codefendants as part of a wide-ranging drug conspiracy. (Doc. 245). Mr. Russell was charged via superseding indictment with 1 count of conspiracy "to distribute five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine hydrochloride, a controlled substance, and one thousand (1,000) kilograms or more of a mixture and substance containing a detectable amount of marijuana, a controlled substance" in violation of 21 U.S.C. §§ 841 & 846. (Id. at 2-3). He was also charged with 1 count of knowingly and intentionally attempting to possess with intent to distribute "five hundred (500) grams or more of a mixture and substance containing a detectable amount of cocaine, a controlled substance" in violation of 21 U.S.C. §§ 841 and 846.2 (Id. at 4). Before Mr. Russell went totrial, the government filed a 21 U.S.C. § 851 notice of previous convictions, notifying the court that Mr. Russell had previous convictions in Alabama for unlawful distribution of a controlled substance and unlawful possession of a controlled substance, which would enhance his sentence. (Doc. 300).
A jury found Mr. Russell guilty of both charges against him, finding that he had conspired to distribute more than 100 but less than 1,000 kilograms of marijuana and 5 kilograms or more of cocaine and that he had possessed with intent to distribute at least 500 grams but less than 5 kilograms of cocaine. (Doc. 434); (doc. 435). Based on his offense level and criminal history, Mr. Russell's applicable Sentencing Guidelines called for a sentence of 360 months to life. (Doc. 647 at 23). However, because of his prior convictions, he was subject to an enhanced mandatory minimum statutory sentence of life in prison. (Id.).
At sentencing, the court stated that the evidence showed that Mr. Russell was an organizer or leader of extensive criminal activity. (Doc. 680 at 4). The court also emphasized that Mr. Russell was facing a life sentence because of his prior drug convictions and recidivism. (Id. at 10-11). The court sentenced Mr. Russell to life in prison for both counts of conviction, to be followed by 120 months' supervised release should he be released from prison. (Doc. 649 at 2-3). Mr. Russell filed a direct appeal and the Eleventh Circuit affirmed. United States v. Yarbrough, 260 F. App'x 230 (11th Cir. 2008).
In 2009, Mr. Russell filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his sentence was unconstitutional on multiple grounds. (CM/ECF for the District Court for the Northern District of Alabama, case no. 3:09-cv-08016-SLB-HGD, doc. 1). A magistrate judge entered a Report and Recommendation, recommending that the court deny Mr. Russell's Section 2255 motion because he had failed to raise any meritorious claims for relief. (Id., doc. 12). This court adopted the Report and Recommendation and denied Mr. Russell's motion to vacate his sentence on the merits. (Id., docs. 17-18).
Mr. Russell is now 53 years old and is currently incarcerated at USP Atlanta serving his life sentence. See https://www.bop.gov/inmateloc/ (last visited April 22, 2021). While incarcerated, Mr. Russell has taken GED classes and has also taken many other educational courses. (Doc. 855-1). He has had multiple minor disciplinary incidents while in prison, but his last infraction was in 2014. (Id.). According to information from the Bureau of Prisons, USP Atlanta currently has 9 active inmate cases and 19 active staff cases of COVID-19. See https://www.bop.gov/coronavirus/ (last visited April 22, 2021).
Mr. Russell has filed two pro se motions in which he states that the court should correct his illegal sentence. (Doc. 816); (doc. 817). In his first motion, Mr.Russell argues that his sentence violates his constitutional rights, as his sentence was improperly enhanced based on a prior conviction. (Doc. 816). He asserts that, pursuant to the operative categorical approach for determining whether a state conviction qualifies as a predicate offense for a federal conviction or sentence, his prior conviction should not qualify as a predicate offense supporting sentence enhancement. (Doc. 816). In his second motion, which he styles as a "Motion for Additional Authority Pursuant to Motion to Correct an Illegal Sentence," Mr. Russell again argues that his sentence was improperly enhanced, this time based on multiple prior convictions, in violation of his constitutional rights. (Doc. 817). He asserts that he is actually innocent of the predicate offenses used to enhance his sentence. (Id. at 4).
The government filed a response to Mr. Russell's motions, arguing that the motions should be dismissed as second or successive Section 2255 motions to vacate his sentence. (Doc. 825). The government further asserted that, even if Mr. Russell's motions were not second or successive Section 2255 motions, they would be meritless. (Id.).
In reply, Mr. Russell argues that the government waived its right to address the merits of his argument about his improperly enhanced sentence by failing to respond to it. (Doc. 828 at 1). He also asserts that this court has jurisdiction over his motions under the "All Writs Act" because his sentence is illegal, he is actuallyinnocent, and he has experienced a miscarriage of justice that can overcome a procedural default. (Id. at 2-3). He repeats his argument that his sentence was improperly enhanced. (Id. at 3).
The court finds that it lacks jurisdiction over Mr. Russell's self-styled motions to correct his sentence.3 In his motions, Mr. Russell collaterally challenges the validity of his sentence by arguing that it was illegally enhanced. (Doc. 816); (doc. 817). "Typically, a petitioner collaterally attacks the validity of his federal sentence by filing a petition under 28 U.S.C. § 2255." Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003)); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) (en banc) (). Accordingly, because Mr. Russell's motions challenge the validity of his sentence, they are properly construed as motions to vacate his sentence under Section 2255. See Sawyer, 326 F.3d at 1365; McCarthan, 851 F.3d at 1081. Mr. Russell previously filed a Section 2255 motion to vacate his sentence that this court denied on the merits. . Thus, Mr. Russell's motions are second or successiveSection 2255 motions.
To file a second or successive Section 2255 motion to vacate sentence, a movant "must first file an application with the appropriate court of appeals for an order authorizing the district court to consider it." Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (citing 28 U.S.C. § 2244(b)(3)(A)). If the movant does not obtain authorization from the appropriate court of appeals—here, the Eleventh Circuit—before filing his motion, the district court lacks jurisdiction to consider the movant's second or successive Section 2255 motion. Id. In this case, there is no evidence in the record that indicates that Mr. Russell sought or received permission from the Eleventh Circuit to file a second or successive Section 2255 motion. Therefore, this court lacks jurisdiction over Mr. Russell's motions challenging the validity of his sentence and the court will dismiss the motions. See id.
Mr. Russell has also filed a motion seeking a modification of his sentence pursuant to Section 3582(c)(1)(A) and the First Step Act of 2018. (Doc. 837). Mr. Russell describes his conviction and the background of the First Step Act, stating that the First Step Act made the Fair Sentencing Act retroactive and, thus, reduced the mandatory minimum sentences for covered crack cocaine offenses. (Id.). Mr. Russell then argues that he should not have received an enhanced sentence basedon prior felony drug offenses because he asserts that, under the categorical approach for determining predicate offenses as set forth in current law, his prior Alabama conviction for possession of a controlled substance did not qualify as a predicate offense meriting a career offender enhancement. (Id. at 4-6).
Mr. Russell asserts in...
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