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United States v. Duvall

United States District Court, District of Columbia

July 20, 2016

UNITED STATES OF AMERICA
v.
DAVID A. DUVALL, Defendant.

          MEMORANDUM OPINION AND ORDER

          Royce C. Lamberth, United States District Judge

         Before the Court are defendant David Duvall's two separate motions [205, 213] for sentence reductions under 18 U.S.C. § 3582(c)(2). While the first motion is based upon the retroactive application of U.S. Sentencing Guidelines' Amendment 750, which lowered the sentencing ranges for crack cocaine offenses, the second motion is based on Amendment 782, which applies more broadly and is commonly known as "all drugs minus two."[1] Each motion must be analyzed under the "two-step inquiry" set forth in Dillon v. United States, which requires that courts first determine if a defendant is eligible for a reduction under § 3582(c)(2) and then determine whether or a not such a reduction is warranted according to the factors enumerated in 18 U.S.C. § 3553(a). 560 U.S. 817, 827 (2010). After considering Duvall's motion [205] for a sentence reduction under Amendment 750, the government's response [209], and Duvall's reply [211], as well as Duvall's motion [213] under Amendment 782, the government's response [224], Duvall's reply [227], the entire record in this case, and the applicable law, the Court will DENY both of Duvall's pending motions [205, 213]. In short, Duvall is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) because his sentence was not "based on" a subsequently lowered range; moreover, even if the Court were authorized to reduce Duvall's sentence, such a reduction would be inconsistent with the sentencing factors found in § 3553(a) and would therefore be unwarranted under the second step of Dillon's two-part inquiry.

         I. BACKGROUND

         On September 17, 2009, a Grand Jury in the District of Columbia issued a one-count Indictment against Duvall and four co-defendants for Conspiracy to Distribute and Possess with Intent to Distribute 50 Grams or More of Cocaine Base and to Distribute and Possess with Intent to Distribute 5 Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846, 841(a)(1). Presentence Investigation Report ("PSR") ¶ 1, ECF No. 129. In short, the Grand Jury found that from at least August 2007 until his arrest in September 2009, Duvall and his associates supplied large quantities of power cocaine to street-level dealers, who would then cook the cocaine into crack and sell it throughout Washington, D.C. See United States v. Duvall, 705 F.3d 479, 481 (D.C. Cir. 2013). Following Duvall's indictment and arrest, the Court arraigned him on September 23, 2009, at which time he was held without bail pending trial. ECF No. 4, 11.

         While trial was pending, the government filed a criminal information document under 21 U.S.C. § 841(b)(1)(A) to establish that Duvall had two prior convictions for felony drug offenses and to make it so that Duvall would face a mandatory minimum life sentence if he were convicted of his third drug offense at trial. See ECF No. 66. Specifically, § 841(b)(1)(A) states: "If any person commits a violation of this subparagraph or of section 849, 859, 860 or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . .." Therefore, because Duvall-as detailed in the government's criminal information filing-had felony convictions for the possession of cocaine and the possession with intent to distribute cocaine in 1995 and 1991, respectively, § 841(b)(1)(A)'s mandatory minimum life sentence would come into play if he were convicted of his third drug-related felony. See United States v. Duvall, 705 F.3d 479, 481 (D.C. Cir. 2013) ("The agreement expressly listed an agreed-upon sentence of 15 years' imprisonment.. . far lower than the mandatory life sentence that Duvall would have received had he been convicted at trial.")

         On April 21, 2010, roughly three weeks after the government filed this criminal information, Duvall pled guilty and entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) (Rule 11(c)(1)(C)). If a Rule 11(c)(1)(C) plea agreement includes a "specific sentence or sentencing range" that the parties determined was appropriate, then once a court accepts the defendant's plea, it is bound to impose the agreed-upon sentence. See Fed. R. Crim. P. 11(c)(1)(C); see also United States v. Duvall, 705 F.3d 479, 481 (D.C. Cir. 2013) ("If the district court accepts a Rule 11(c)(1)(C) plea agreement, the court must impose the sentence listed in the plea agreement."). Duvall's Rule 11(c)(1)(C) plea agreement stated, among other things, that Duval's relevant criminal conduct involved between 500 grams and 1.5 kilograms of crack cocaine base and that 168 months[2] was the appropriate sentence for his offense, meaning that if the Court accepted Duvall's plea, it was bound to impose the 168-month prison term.

         On September 10, 2010, this Court imposed Duvall's agreed-upon 168-month prison term, which it was bound to do under Rule 11(c)(1)(C). Before imposing its sentence, the Court calculated Duvall's total offense level, criminal history level, and corresponding sentencing range, as is required by law. See United States v. Duvall, 705 F.3d 479, 483 (D.C. Cir. 2013) ("Before a Rule 11(c)(1)(C) plea agreement is approved, moreover, the judge must calculate the applicable Guidelines sentencing range and consider the Guidelines." (citing 18 U.S.C. § 3553(a)(4); U.S.S.G. § 6B1.2(c))). In performing these calculations and accounting for Duvall's three-point reduction for acceptance of responsibility, the Court found Duvall's total offense level to be 31 and his criminal history category to be I.[3] Although at the time, such a combination would typically result in a sentencing range of 108-135 months, the Court set Duvall's guideline range at "life."[4]Essentially, U.S.S.G. § 5Gl.l(b) states that "[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence." See also In re Sealed Case, 722 F.3d at 369 ("When the guideline range for an offense is lower than the statutory mandatory minimum, the mandatory minimum statute replaces the guideline range and becomes the sentence." (citation omitted))). Because Duvall was otherwise subject to a mandatory life sentence, § 5B 1.1(b) operated to set Duvall's sentencing range at "life, " as opposed to 108-135 months, which would otherwise have been applicable.

         Although generally speaking a court may not modify a term of imprisonment once it has been imposed, 18 U.S.C. § 3582(c)(2) provides an exception. Under this provision, a court may be authorized to modify a term of imprisonment where the applicable sentencing guideline range has been retroactively lowered by the Sentencing Commission. One such reduction was Amendment 750, which applied only to crack cocaine offenses and was given retroactive effective on June 30, 2011. See Mem. & Order 3, ECF No. 170 (providing a brief history of Amendment 750 and its retroactive application). The first of Duvall's two pending § 3582(c)(2) motions is brought under this Amendment.

         After passing Amendment 750 to reduce sentences for crack cocaine offenses, in August 2014 the U.S. Sentencing Commission submitted to Congress Amendment 782, which proposed a downward revision to sentencing ranges for nearly all drug trafficking offenses-not just those involving crack cocaine. Had Amendment 782 been in effect at Duvall's sentencing, his total offense level would have been 29, not 31[5]-meaning that the corresponding applicable guideline range would have been reduced from 108-135 months to 87-108 months.

         Once Amendment 782 became effective, the Commission passed Amendment 788 to allow Amendment 782's revisions to be applied retroactively. These retroactive changes-including the two-point drop in Duvall's total offense level-became effective on November 1, 2014. Duvall now brings his second § 3582(c)(2) motion under Amendment 782, believing that these changes to the Sentencing Guidelines should permit this Court to reduce his sentence proportionally.[6]

         II. PROCEDURAL HISTORY

         Although Duvall has two motions for sentence reductions currently pending, this Court has already ruled on and denied a separate motion Duvall previously filed under § 3582(c)(2). Duvall's first motion [160] for a sentence reduction was filed on August 17, 2011, and the Court denied it on December 16, 2011 [170]. Importantly, the Court delivered its ruling before the D.C. Circuit issued United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013) and In re Sealed Case, 722 F.3d 361 (D.C. Cir. 2013), two leading cases that set the standard under § 3582(c)(2) for whether or not the sentence of a defendant who had entered into an Rule 11(c)(1)(C) plea agreement was "based on" a specific and subsequently-lowered sentencing range.

         Epps and In re Sealed Case interpret and apply Freeman v. United States, 564 U.S. 522 (2011), a 2011 Supreme Court case which ruled that defendants who had entered into a Rule 11(c)(1)(C) plea agreement are not automatically ineligible for a sentence reduction under § 3582(c)(2). Freeman, 564 U.S. at 534. Essentially, § 3582(c)(2) only authorizes a court to reduce a sentence if the defendant's sentence was "based on" a subsequently-lowered sentencing range. See 18 U.S.C. § 3582(c)(2). Looking to this statutory language, the government argued in Freeman that no defendant who had entered into a 11(c)(1)(C) plea agreement was eligible for a sentence reduction because the prisoner's sentence was not "based on" a subsequently-lowered range. Rather, under these circumstances, a prisoner's sentence was "based on" the terms the government and defendant settled upon when each party entered into the plea agreement. See Freeman, 564 U.S. at 531 ("The Government asks this Court to hold that sentences like petitioner's, which follow an 11(c)(1)(C) agreement, are based only on the agreement and not the Guidelines, and therefore that defendants so sentenced are ineligible for § 3582(c)(2) relief"). Further, the government argued that "the term of imprisonment imposed pursuant to a [11(c)(1)(C)] agreement [must be] . . . . 'based on' the agreement itself, " because "[t]o hold otherwise would be to contravene the very purpose of (C) agreements-to bind the district court and allow the Government and the defendant to determine what sentence he will receive." Freeman, 564 U.S. at 537 (Sotomayor, J., concurring).

         In a 4-4-1 split decision, however, the Supreme Court rejected the government's argument. Four Justices in a plurality opinion ruled that a sentence was based on a subsequently-lowered guideline "to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement." Freeman, 564 U.S. at 530. Moreover, the opinion elaborated on this relatively "broad" reading of § 3582(c)(2), stating that "[a sentencing] judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief." Id. at 534; cf. In re Sealed Case, 733 F.3d 361, 365 (D.C. Cir. 2013) ("A four-Justice plurality took a broad view ... .").

         Justice Sotomayor, however, rejected the plurality's reading of § 3582(c)(2), though concurred in the final judgment. Freeman, 564 U.S. at 537 (Sotomayor, J., concurring) ("I cannot endorse the plurality's suggestion that § 3582(c)(2) should be understood to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement." (citation omitted)). In her concurring opinion, Justice Sotomayor reasoned that the sentence of a defendant who had previously entered into a plea agreement could be "based on" a subsequently-lowered range only if the "agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission." Id. at 2695. In comparing Freeman's plurality opinion with Justice Sotomayor's concurring opinion, every other circuit court considered Justice Sotomayor's concurrence to be controlling because it resolved the case on the narrowest grounds.[7] In other words, every circuit that considered the question found Justice Sotomayor's concurrence to be binding on lower courts.

         With these rulings in the background when Duvall filed his original August 17, 2011 motion for a sentence reduction, the government and Duvall agreed during those proceedings that Justice Sotomayor's concurrence was binding on this Court. See Memorandum and Order 4, ECF No. 170 ("The parties further agree that Justice Sotomayor's concurrence [in Freeman] provides the controlling precedent."). This Court therefore applied Justice Sotomayor's reasoning and denied Duvall's petition, finding that "at no point does the agreement state explicitly that the 180-month figure was based on any particular guidelines range, nor does it require that the defendant be sentenced within a particular range." Id. at 8. On appeal, the D.C. Circuit affirmed that ruling and went so far as to say that the question of whether or not Duvall's sentence was based on a subsequently-lowered range was "not even a close call" under Justice Sotomayor's then-prevailing standard. United States v. Duvall, 705 F.3d 479, 484 (D.C. Cir. 2013).

         Less than one month after the D.C. Circuit affirmed this Court's denial of Duvall's original sentence-reduction petition, the Circuit decided United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013), and effectively altered the legal landscape. In that case, the Circuit ruled that the reasoning embedded in Justice Sotomayor's Freeman concurrence was not controlling because it did not "overlap in rationale" with the plurality opinion. Epps, 707 F.3d at 349 (emphasis in original). Further, after finding that Justice Sotomayor's concurring opinion was not controlling, the Circuit ruled that moving forward, district courts in the District of Columbia would be bound to follow Freeman's plurality opinion because it was "more persuasive than... the concurring opinion." Id. at 351.

         This change was significant: Epps ruled that district courts were required to apply a different standard than this Court-and the D.C. Circuit itself-applied to deny Duvall's original August 17, 2011 motion for a sentence reduction. See United States v. Duvall, 705 F.3d 479, 483 (D.C. Cir. 2013) ("For the purposes of this appeal, both parties agree that Justice Sotomayor's opinion controls our analysis .... Accordingly, we do not further address that question."). According to Justice Sotomayor's concurrence, which prior to Epps this Court understood as binding, the sentence of a defendant who had entered into an 11(c)(1)(C) plea agreement could be based on a subsequently-lowered range only if the plea "agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission." Freeman v. United States, 564 U.S. 522, 534 (2011) (Sotomayor, J., concurring). After Epps, however, a defendant could successfully argue that the sentence contained in his plea agreement was "based on" a subsequently-lowered range whenever the "sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or approve the agreement." Freeman v. United States, 564 U.S. 522, 529 (2011).

         The standard in Epps was re-emphasized in In re Sealed Case, 722 F.3d 361 (D.C. Cir. 2013), where the D.C. Circuit ruled that a defendant's 135-month sentence was "based on" his 151-181-month guideline range because that range played at least some role in the judge's sentencing decision. Interestingly, the Circuit came to this decision even though the defendant's 151-181-month sentencing guideline range would have been supplanted by a 20-year mandatory minimum had the government not filed a motion under 18 U.S.C. § 3553(e) for substantial assistance. 722 F.3d 361, 363 (D.C. Cir. 2013). Regardless of the looming 20-year mandatory minimum and the fact that the defendant was sentenced below his applicable guideline range, the Circuit found that the 151-181-month range formed "the very basis" of the defendant's 135-month sentence. In re Sealed Case, 722 F.3d at 367.

         In his current motion, Duvall argues that under Epps, In re Sealed Case and the Freeman plurality opinion, his sentence was "based on" a subsequently-lowered range because that range played some role in the judge's decision-making process. Duvall believes that the relevant legal standard has shifted in such a way that the Court's previous December 16, 2011 ruling is no longer valid. Under the "broader view" embraced by Epps and In re Sealed Case, see In re Sealed Case, 722 F.3d at 365, Duvall argues that his sentence was "based on" a subsequently-lowered range because the recently amended 108-135-month range played some role in the Court's decision to impose the 168-month sentence contained in the defendant's plea agreement.

         III. DISCUSSION

         This Court lacks the authority to reduce Duvall's sentence pursuant to § 3582(c)(2) because his 168-month sentence was not based on a subsequently-lowered sentencing range. Moreover, even if Duvall were eligible for a sentence reduction, the "marginal effect the since-rejected Guideline had on [his] sentence" was so negligible that no reduction would be warranted. Freeman, 564 U.S. at 530. This Court comes to the same conclusion that no ...


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