United States v. Wilkerson

• Docket Number: CR 00-0557 JB
• Decision Date: 29 August 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DARYL WILKERSON, Movant.
• Court: U.S. District Court — District of New Mexico

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UNITED STATES OF AMERICA, Plaintiff, v. DARYL WILKERSON, Movant.

No. CR 00-0557 JB

United States District Court, D. New Mexico

August 29, 2023

Alexander M. M. Uballez United States Attorney United States Attorney's Office Albuquerque, New Mexico -- and -- Terri J. Abernathy Assistant United States Attorney United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff

Daryl Wayne Wilkerson Hobbs, New Mexico Defendant pro se

MEMORANDUM OPINON AND ORDER

THIS MATTER comes before the Court on: (i) the Movant's Motion for Reconsideration Pursuant to His June 9th, 2022, Revocation Hearing, filed November 7, 2022 (Doc 645)(“First Reconsideration Motion”); (ii) the Movant's Motion for Reconsideration of Movant's Motion to Reduce Sentence Pursuant to the First Step Act § 404 Pursuant to 18 U.S.C. § 3582(c)(1)(B), filed January 2023 (Doc. 648)(“Second Reconsideration Motion”); and (iii) the Movant'[s] Motion for Reconsideration of Movant's Motion to Reduce Sentence Pursuant to the First Step Act § 404 Pursuant to 18 U.S.C. § 3582(c)(1)(B) Pursua[n]t to This Motion to Amend, filed July 20, 2023 (Doc. 650)(“Motion to Amend”). In the First Reconsideration Motion, the Second Reconsideration Motion, and the Motion to Amend Movant Daryl Wilkerson asserts several grounds why the Court should reduce his term of imprisonment which the Court imposed upon a previous supervised release violation and should terminate the remainder of his supervised release term. See First Reconsideration Motion at 1-3; Second Reconsideration Motion at 1-5; Motion to Amend at 1-2. For the reasons discussed below, the Court denies all three motions.

PROCEDURAL BACKGROUND

On November 15, 2000, a jury returned a guilty verdict against Wilkerson for aiding and abetting the possession with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2(a). See Verdict Form at 2, filed November 15, 2000 (Doc. 174). The criminal charge resulted from a traffic stop in which officers found a package containing 44.57 net grams of crack cocaine in a vehicle which Wilkerson was driving. See Presentence Report, filed April 29, 2020 (Doc. 616)(“PSR”).^[1]Plaintiff United States of America filed a notice to enhance Wilkerson's sentence under 18 U.S.C. § 851, because Wilkerson had a previous controlled substance conviction. See Information Charging Prior Convictions Pursuant to the Provisions of 21 U.S.C. § 851 and 18 U.S.C. § 3559(c)(1) and U.S.S.G. § 4B1.1, filed November 1, 2000 (Doc. 153). At the sentencing hearing on April 25, 2001, the Honorable Sven Erik Holmes, United States District Judge for the United States District Court for the Northern District of Oklahoma, sitting by designation in the United States District Court for the District of New Mexico,^[2]sentenced Wilkerson, who did not oppose the PSR's factual findings, to a term of 360 months of imprisonment followed by 8 years of supervised release. See Sentencing Proceedings at 1, filed April 25, 2001 (Doc. 284); Judgment in a Criminal Case at 2-3, filed May 21, 2001 (Doc. 295).

On February 20, 2008, Wilkerson moved to reduce his sentence under 18 U.S.C. § 3582(c) based on a retroactive amendment to the United States Sentencing Guidelines' (“U.S.S.G.” or the “Guidelines”) calculations with respect to cocaine base quantities, see Motion to Reduce Sentence at 1, filed February 20, 2008 (Doc. 412), which the Honorable C. LeRoy Hansen, then Senior United States District Judge for the United States District Court for the District of New Mexico dismissed for lack of jurisdiction, see Order, filed September 23, 2008 (Doc. 430). After a series of unsuccessful post-judgment motions, on January 30, 2019, Wilkerson filed a Motion to Reduce Sentence Pursuant to Section 404 of the First Step Act, filed January 30, 2019 (Doc. 595)(“Motion to Reduce”), arguing that the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018)(“First Step Act”), adjusted retroactively his statutory maximum sentence. See Motion to Reduce at 1. The Court granted the Motion to Reduce in its Memorandum Opinion and Order, filed May 1, 2020 (Doc. 617)(“MOO”), and resentenced Wilkerson to a time-served sentence followed by six years of supervised release. See MOO at 75. In reaching this sentence, the Court concludes that “[t]he First Step Act thus covers D. Wilkerson's offense, because Fair Sentencing Act's § 2[, Pub. L. 111220 (2010)] ‘modified' the ‘statutory penalties' under § 841(b) for § 841(a) ‘violation[s]' that involved crack cocaine, and he committed that offense before the Fair Sentencing Act's 2010 enactment.” MOO at 64 (quoting First Step Act §§ 404(a)-(b)).

Wilkerson began his term of supervised release on May 19, 2020. See Violation Report, filed September 23, 2020 (Doc. 623). On September 23, 2020, the United States Probation Office (“USPO”) filed a Violation Report and a Petition for Revocation of Supervised Release, filed September 23, 2020 (Doc. 622)(“Petition”), charging Wilkerson with a Grade C violation of his supervised release terms and noting that Wilkerson had been arrested for driving while intoxicated, had submitted positive drug tests, and left the judicial district without authorization. See Petition at 1-2; Violation Report at 1-2. The Court issued an arrest warrant, but Wilkerson absconded and was not arrested until March 16, 2022. See Arrest Warrant, filed November 10, 2020 (Doc. 625); Docket Text Noting Wilkerson's Arrest, filed March 16, 2022 (text-only)(no docket number assigned); Sentencing Memorandum at 1-2, filed June 6, 2022 (Doc. 639)(ex parte). The USPO submitted an Amended Violation Report, filed March 17, 2022 (Doc. 627), and an Amended Petition for Revocation of Supervised Release, filed March 17, 2022 (Doc. 626)(“Amended Petition”), charging Wilkerson with a Grade A violation based on new allegations that Wilkerson became violent with a romantic partner. See Amended Petition at 1-2; Amended Violation Report at 1-2. In a Supervised Release Violation Agreement, filed June 9, 2022 (Doc. 642), Wilkerson admitted to the positive drug tests, to using marijuana, and to leaving the District of New Mexico without permission, and Wilkerson and the United States stipulated to a term of imprisonment of 16 months, with the Court to determine length of any subsequently imposed supervised release. See Supervised Release Violation Agreement ¶¶ 7-8, at 3. The United States also agreed to dismiss the violation allegations connected to the driving while intoxicated and domestic violence incidents. See Supervised Release Violation Agreement ¶ 10, at 3. At the supervised release revocation hearing on June 9, 2022, the Court accepted Wilkerson's admission of violation, imposed a 16-month term of imprisonment, and imposed 44 months of supervised release. See Violation of Supervision Proceedings Minute Sheet at 1, filed June 9, 2022 (Doc. 643).

LAW REGARDING THE SENTENCING GUIDELINES

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L No. 98-473, 98 Stat. 1837, 1987, thus making the Guidelines sentencing ranges effectively advisory. 543 U.S. at 245. In excising the two sections, the Supreme Court left the remainder of the Sentencing Reform Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261.

Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary,” to comply with the four statutorily-defined purposes that 18 U.S.C. § 3553(a)(2) enumerates:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner ....

18 U.S.C. § 3553(a)(2).

[A] defendant who has been found guilty of an offense described in any Federal statute . . . shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551(a). To achieve these purposes, § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the offense's nature, and the nature of the defendant's character; (iii) the available sentences; (iv) the policy favoring uniformity in sentences for defendants who commit similar crimes; (v) the need to provide restitution to victims; and (vi) any pertinent United States Sentencing Commission policy statements in effect on the date of sentencing. See 18 U.S.C. § 3553(a)(1), (3)-(7).

Although the Guidelines sentences are no longer mandatory, both the Supreme Court and the Tenth Circuit have clarified that, while the Guidelines are one of several factors which § 3553(a) enumerates, they are entitled to careful consideration. See Rita v. United States, 551 U.S. 338, 349 (2007)(“The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period...