United States v. Span, Case No. 03 CR 71-3
| Decision Date | 04 February 2020 |
| Docket Number | Case No. 03 CR 71-3 |
| Citation | 437 F.Supp.3d 659 |
| Parties | UNITED STATES of America, Plaintiff, v. Albert SPAN, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
John Raymond Lausch, Jr., AUSA, United States Attorney's Office, Chicago, IL, Probation Department, for Plaintiff.
Albert Span was convicted by a jury in November 2004 of several crimes arising from his involvement in drug trafficking and subsequent threats he made to witnesses prior to trial.1 (Dkt. 190.) His conviction was affirmed on appeal and a motion under 18 U.S.C. § 2255 was denied. Although Span received a reduction of sentence under Amendment 750 to the United States Sentencing Guidelines in 2014, he now moves for a further reduction under the First Step Act and two amendments to the Guidelines promulgated after his last resentencing. The motion (dkt. 400) is denied in part and continued in part.
Most significantly for present purposes, Span's counts of conviction included participating in a conspiracy to distribute and possess with intent to distribute more than 50 grams of mixtures containing crack cocaine.2 (Dkt. 136 at 1.) The evidence presented at Span's trial has been summarized in various prior rulings and the court will summarize here only the evidence related to the crack conspiracy.
Span was part of a drug ring that operated in the St. Stephens apartment complex on the west side of Chicago. (Dkt. 294 at 1.) Span was recruited to the ring by Richard Epps, an old friend who was the leader of the operation. (Id. ; dkt. 258 at 91.) Span's principal job was to supply the heroin the ring sold. (Dkt. 294 at 1; dkt. 258 at 91-93.) Two other men, Donnie Allison and LaShon Stuckey, were recruited to be the principal distributors of heroin and crack, respectively. (Dkt. 294 at 1.)
The evidence against Span included recordings of phone calls the government intercepted through a wiretap active on Epps's phone between November 7 and December 6, 2001. Epps and Allison also cooperated with the government after their arrests and testified at Span's trial. (Dkts. 258, 228, 228-1, 234.)
The evidence showed that in fall 2001, Epps decided to open a heroin and crack selling operation at the St. Stephens complex. (Gov't Memo at 5; dkt. 258 at 89.) Epps recruited Allison, Stuckey, and their associates to conduct the street level deals. (Id. ; dkt. 258 at 89-91.) Epps introduced Allison to Span so that Allison could obtain the heroin to sell from him. (Id. ; dkt. 258 at 91.)
In November 2001 Epps also obtained a kilogram of cocaine powder from a man named Tommy Parra that he intended to convert into crack for street-level sale. (Dkt. 258 at 104-05; dkt. 228 at 168; dkt. 228-1 at 294-95.)3 Parra "fronted" this cocaine powder to Epps, i.e. , provided it on credit. (Dkt. 228 at 42; dkt. 258 at 95.) Epps testified that he discussed the prospect of obtaining this cocaine powder with Span. (Dkt. 228 at 62.) Epps also testified that he tried to convert the powder into crack but was unsuccessful because the powder was "bad quality." (Dkt. 258 at 105.) Epps thus returned the powder to Parra. ( Id. at 105-06, 131 S. Ct. 2225.)
The government introduced a recording of a November 22 phone call between Epps and Span in which Span asked about the status of the cocaine powder (Epps testified they had discussed the cocaine powder prior to the phone call) and Epps responded that it was "garbage." (Dkt. 228 at 61-62, dkt. 373 at 121-125.)
The government also introduced recordings of a series of calls between Epps and Stuckey on November 21 and 22 in which Stuckey said he wanted to be fronted 2¼ ounces of crack to sell. (Dkt. 228 at 51-53, 55, 63; dkt. 373 at 104, 110, 126.)
In closing argument the government told the jury it should find Span responsible for conspiring to distribute more than 50 grams of crack, as charged, because the conspirators intended to "cook [the powder] up and sell parts of it ... two and a quarter ounces, which is sixty something grams ..." (Dkt. 228-3 at 38, 24.) The jury did so, convicting Span of all charges. (Dkt. 190.)
At the time Span was convicted, the Supreme Court had granted certiorari on United States v. Booker , 542 U.S. 956, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and Booker 's pendency created uncertainty as to whether factual findings necessary to a Guidelines calculation needed to be made by a jury beyond a reasonable doubt. (See dkt. 294 at 4.) The court and parties thus agreed to submit several sentencing factors to the jury after it returned a guilty verdict. ( Id. ) The jury then found the following with respect to the counts listed below:
The probation office prepared a Presentence Investigation Report ("PSR") that calculated Span's Guidelines range as life in prison. (Dkt. 423-1 at 18.) The predominant factor in Span's Guidelines calculation was the quantity of drugs for which he was responsible under U.S.S.G. § 1B1.3, which generally provides that all members of a conspiracy are responsible for any reasonably foreseeable acts of a conspirator in furtherance of the conspiracy. The PSR based its Guidelines calculation on findings that Span was responsible for 1 kilogram of crack, 500 grams of cocaine (separate from the crack), and 90 grams of heroin. (Dkt. 423-1 at 9.)
The PSR states that Span should be held responsible for 1 kilogram of crack because that was "the amount of cocaine Span purchased from Parra, and was to cook into cocaine base."4 (Id. ) The PSR states that Span should be held responsible for 90 grams of heroin because the jury found him responsible for at least 80 grams of heroin with respect to the conspiracy count and at least 10 grams of heroin with respect to the possession with intent to distribute count. (Id. ) The PSR does not explain its finding that Span should be held responsible for 500 grams of cocaine as distinct from the crack, other than asserting that this finding was made "[p]ursuant to the jury's verdict"—presumably the initial verdict of guilty as opposed to the sentencing verdict. (Id. ) The PSR describes this substance only as "cocaine," a term that includes but is broader than cocaine powder under the relevant statute. DePierre , 564 U.S. at 73, 131 S.Ct. 2225 ; 21 U.S.C. § 841(b)(1)(A)(ii). As will be discussed further below, however, it is clear that the PSR is referring to the cocaine powder Epps obtained from Parra.
The PSR's drug quantity findings as to cocaine powder and heroin differed from the government's recommendations. (Dkt. 423-1 at 38-39.) The government recommended holding Span responsible for 80 grams of heroin rather than 90 grams and did not recommend finding him responsible for any amount of cocaine apart from the crack. (Id. )
The PSR's drug quantity findings resulted in a base offense level of 36 under the Guidelines.5 (Id. at 9.) The PSR further called for a 2-level enhancement because Span engaged in criminal activity within 1,000 feet of public housing, a 4-level enhancement because Span led and organized at least five people in the conspiracy, and a 2-level enhancement because Span threatened two witnesses who testified against him. (Id. at 9-10.)
Span had one prior felony conviction for possession with intent to distribute cocaine, which resulted in a criminal history category of III. (Id. at 13.) Based on an offense level of 44 and a criminal history category of III, Span's Guidelines range was life. (Id. at 18.) The court imposed that sentence. (Dkt. 259.)
Span appealed his conviction and sentence. (Dkts. 253, 294.) The court appointed an attorney to represent him in the appeal, but that attorney moved to withdraw under Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could not discern a nonfrivolous issue for appeal. (Dkt. 294 at 2.) The Court of Appeals addressed the potential issues identified by counsel's Anders brief, including challenges to Span's sentence, and affirmed. United States v. Span , No. 05-3171, 2006 WL 2008502 (7th Cir. July 14, 2006) ; (see dkt. 294).
Span subsequently filed a pro se motion for relief under 28 U.S.C. § 2255, which this court denied. Span v. United States , No. 07-cv-2543, dkt. 43, 2010 WL 3034240 (Aug. 3, 2010). The Court of Appeals declined to certify an appeal. No. 11-1066 (7th Cir. July 22, 2011).
In October 2013, Span moved for a reduced sentence pursuant to Amendment 750 to the Guidelines, which reduced the offense levels attributed to various quantities of crack consistent with changes made to crack-related mandatory minimums by the Fair Sentencing Act. (Dkt. 358); see generally Dorsey v. United States , 567 U.S. 260, 269-70, 132 S. Ct. 2321, 183 L.Ed.2d 250 (2012). Span's motion assumed that he was responsible for the drug quantities listed in his PSR: 1 kilogram of crack, 500 grams of cocaine powder, and 90 grams of heroin. (Dkt. 358 at 8.) Using those drug quantities, Span argued that his amended Guidelines range was 360 months to life. ( Id. ) The government agreed that Span was entitled to relief and with his amended Guidelines calculation. (Dkt. 365 at 1.) The court resentenced...
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