United States v. Sumler, CRIMINAL ACTION 95-154-2 (BAH)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtBERYL A. HOWELL CHIEF JUDGE.
Decision Date28 December 2021
PartiesUNITED STATES OF AMERICA v. CALVIN SUMLER, Defendant.
Docket NumberCRIMINAL ACTION 95-154-2 (BAH)

UNITED STATES OF AMERICA
v.

CALVIN SUMLER, Defendant.

CRIMINAL ACTION No. 95-154-2 (BAH)

United States District Court, District of Columbia

December 28, 2021


MEMORANDUM OPINION

BERYL A. HOWELL CHIEF JUDGE.

Defendant Calvin Sumler led “the so-called Fern Street Crew, an organization which distributed crack cocaine for seven years in the District of Columbia and Maryland” between 1988 and 1995. United States v. Sumler, 136 F.3d 188, 189 (D.C. Cir. 1998). The organization was responsible for distributing, according to a conservative estimate, over 50 kilograms of crack cocaine, Presentence Investigation Report (“PSR”) ¶¶ 154-55, ECF No. 685 (sealed), and its activities “were facilitated by its use of violence to defend territory from rival drug dealers and subvert the efforts of the criminal justice system, ” Sumler, 136 F.3d at 189. [1] Eventually, law enforcement's investigation into the violence and drug dealing by this organization led to the indictment of defendant and eleven of his co-conspirators, Indictment, ECF No. 4. In 1996, after a four-month trial against defendant and four co-defendants, a jury found the defendants guilty of “numerous offenses, including murder, armed robbery, kidnapping, and drug and RICO conspiracies.” Id. at 189.[2] Defendant himself was “convicted of one count of premeditated first

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degree murder while armed, ” id. at 189 n.2, as well as racketeering conspiracy, continuing criminal enterprise, and drug trafficking offenses. The same year, defendant was sentenced to life in prison without the possibility of parole.[3]

Now, twenty-five years later, and with evidence of rehabilitation, defendant seeks a reduction in his sentence to time served or, at most, to 40 years' imprisonment. Def.'s Suppl. Mot. to Reduce Sentence Pursuant to the First Step Act of 2018 (“Def.'s 404 Mot.”) at 22, ECF No. 623. To this end, defendant has two pending motions to reduce his sentence under separate statutory provisions.[4] First, defendant moves to reduce his sentence under Section 404 of the First Step Act of 2018 (“First Step Act”), Pub. L. 115-391, 132 Stat. 5194, which makes retroactively available the more lenient penalties for certain crack cocaine offenses enacted in the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372. Def.'s 404 Mot. Second, defendant moves for compassionate release, under 18 U.S.C. § 3582(c)(1)(A)(i), citing his chronic medical conditions and the ongoing COVID-19 pandemic. Def.'s Emergency Mot. for Compassionate Release (“Def.'s Mot. Compassionate Release”), ECF No. 648.

For the reasons discussed below, defendant's motion for a reduced sentence under Section 404 of the First Step Act is denied since one of his convictions, for which he is serving a life sentence, is not covered by Section 404 of the First Step Act. His motion for compassionate release is also denied.

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I. BACKGROUND

As necessary context for the resolution of the pending motions, summarized below is background regarding the defendant's offense conduct, convictions, and sentences, largely drawn from the defendant's original sentencing hearing in 1996 and related documents, as well as judicial decisions in this case. It is followed by an overview of the procedural history since the filing of the pending motions, including the testimony presented at a June 9, 2021, hearing requested by defendant, and post-hearing supplemental filings by both parties.

A. Defendant's Convictions

Defendant was a leader of the Fern Street Crew, “an organization which distributed crack cocaine for seven years in the District of Columbia and Maryland.” Sumler, 136 F.3d at 189. “The Crew's activities were facilitated by its use of violence to defend territory from rival drug dealers and subvert the efforts of the criminal justice system.” Id. Defendant purchased kilogram quantities of cocaine and then provided crack cocaine to others to distribute. PSR ¶¶ 122-152. Defendant was convicted of killing one person, Anthony Hinton, id. ¶¶ 84-87, and his organization extensively used “violence to defend territory from rival drug dealers, ” Sumler, 136 F.3d at 189.

In July 1995, defendant was charged in a 61-count indictment with 11 co-defendants. Indictment.[5] Following a four-month trial, a jury found defendant guilty of the following eleven of the thirteen counts with which he was charged, with those counts of conviction carrying the penalties indicated at that time:

Count 1: Conspiracy to Distribute and Possess with Intent to Distribute 50 Grams or More of Cocaine Base (21 U.S.C. §§ 846 and 841(b)(1)(A)(iii)) (“Crack Conspiracy”)
Penalty: mandatory minimum 10 years to life imprisonment
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Count 2: Continuing Criminal Enterprise (21 U.S.C. § 848(a) and (b)) (“Super CCE”)
Penalty: mandatory minimum sentence of life imprisonment;
Count 3: Conspiracy to Participate in Racketeer Influenced Corrupt Organization (18 U.S.C. § 1962(d) and 1963(a)) (“RICO conspiracy”)
Penalty: life imprisonment;
Count 4: First Degree Murder While Armed (22 D.C. Code §§ 2401, 3202 & 105)
Penalty: 20 years to life imprisonment;
Count 6: Continuing Criminal Enterprise Murder (21 U.S.C. § 848(e)(1)(A)) (“CCE murder”)
Penalty: mandatory minimum 20 years to life imprisonment;
Count 19: Use of a Firearm During and in Relation to a Crime of Violence or a Drug Trafficking Crime “on or about November 1, 1991 (CCE Murder of Anthony Hinton)” (18 U.S.C. § 924(c))
Penalty: mandatory consecutive 5 years' imprisonment;
Count 29: Possession of a Firearm During a Crime of Violence (22 D.C. Code § 3204(b))
Penalty: mandatory minimum 5 years to 15 years' imprisonment;
Counts 38 and 39: Distribution of Cocaine Base (21 U.S.C. §§ 84l(a)(1) and 841(b)(1)(B)(iii))
Penalty: mandatory minimum 5 years to 40 years' imprisonment on each count; and
Counts 40 and 41: Distribution of Cocaine Base (21 U.S.C. §§ 84l(a)(1) and 841(b)(1)(A)(iii))
Penalty: mandatory minimum 10 years to life imprisonment on each count.

Judgment and Commitment Order, ECF No. 445; PSR ¶¶ 250-258; Verdict Form, ECF No. 343.[6]

Pertinent to resolution of the pending motions is the quantity of narcotics found to be involved in each of the eight narcotics-related counts (Counts 1-3, 6, and 38-41). The jury instructions on Count 1 and Counts 38-41 did not require the jury to find a specific quantity of crack cocaine, instructing instead that “the actual amount of a controlled substance involved or the amount alleged in the indictment is not an element of this Count, ” Trial Tr. (July 30, 1996) at 29:12-14, ECF No. 393 (referring to Count One), and that “[t]he government need not prove that

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the defendant distributed any particular numerical amount of cocaine base, ” id. at 123:22-24 (referring to Counts 38-41).

For Count 2, the Super CCE drug charge, the jury was instructed that an element of the offense was that “the enterprise was involved in the distribution of quantities of a mixture or substance containing a detectable amount of cocaine base . . . and the amount of said mixture and substance was 1.5 kilograms or more.” Id. at 54:16-20. On that count, the jury found the defendant was guilty of the charged drug conspiracy and had illegally distributed crack cocaine on six occasions, including the four that formed the basis for drug distribution in Counts 38-41. Verdict Form at 2-3.

On Count 3, the RICO conspiracy charge, the jury found that defendant engaged in numerous predicate acts, including a conspiracy to distribute a controlled substance, unlawfully distributing crack cocaine on six occasions, and murdering Anthony Hinton. Id. at 4-5.

On Count 6, the CCE murder charge, the jury found that defendant committed the “[i]ntentional murder of Anthony Hinton, while working in furtherance of a continuing criminal enterprise.” Id. at 5. The jury had been instructed that an element of the offense was that “the defendant committed the killings or participated in the killings while engaged in or working in furtherance of a continuing criminal enterprise.” Trial Tr. (July 30, 1996) at 85:5-7. The court had further instructed that “the government need not prove that the continuing criminal enterprise was responsible for the distribution of any particular or minimum amount of crack as required for Count 2 . . . [but that in] order to prove this element, it is sufficient for the government to prove that the defendant killed . . . the decedent while the defendant was engaged in or working in furtherance of a continued criminal enterprise.” Id. at 85:12-20.

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B. Defendant's Sentencing

Based on the evidence at trial, the PSR estimated that the defendant was responsible for distributing at least 50 kilograms of crack cocaine during the seven-year course of the conspiracy, PSR ¶ 155, but also indicated this quantity “substantially underestimate[d]” the amount of cocaine that defendant was responsible for distributing, id. ¶ 121. Under the 1995 edition of the U.S. Sentencing Guidelines Manual, id. ¶ 192, the PSR grouped Counts 1, 2, and 3 (RICO drug overt acts), and Counts 38-41 under U.S.S.G. §3D1.2(d), id. ¶ 202 (“Group One”), and grouped Count 3 (RICO murder overt act) and Count 6 under §3D1.2(a), id. ¶ 208 (“Group Two”). Based on the trial testimony, distribution of over 50 kilograms of crack cocaine was attributed to defendant, which quantity provided a base offense level of 38, under U.S.S.G. § 2D1.1(a)(3)(c)(1). Id. ¶ 202. Defendant contested this quantity of drugs attributed to him in the PSR, contending that he was only responsible for the drugs involved in Counts 38, 39, 40, and 41, which would amount to 134.86 grams. Sent'g Hr'g Tr. (Nov. 18, 1996) at 2:23-3:4, ECF No. 519; PSR at 50.[7] In response, the government pointed out that defendant's position was inconsistent with the jury's conviction on Count...

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