United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Robert Smith pleaded guilty via a Federal Rule of Criminal
Procedure 11(c)(1)(C) agreement to participation in a
criminal drug conspiracy and was sentenced to the agreed-upon
term of 156 months' incarceration. After his sentencing,
the offense level under the United States Sentencing
Guidelines for the crime to which he pleaded guilty was
lowered by two levels. Mr. Smith moved this Court to lower
his sentence, which the Court denied because his sentence was
“based on an agreed plea under Federal Rule of Criminal
Procedure 11(c)(1)(C) and not on the Guidelines.” That
decision has now been reversed by the D.C. Circuit, due to
the intervening Supreme Court decision in Hughes v.
United States, 138 S.Ct. 1765 (2018), which held that a
sentence based on a Rule 11(c)(1)(C) plea is generally
“based on” the Guidelines and may be reduced due
to a change in the underlying Guidelines. Thus, the case was
remanded to this Court to reconsider its decision not to
grant Mr. Smith's motion for a reduction in sentence.
Having reviewed the submissions by the United States and Mr.
Smith, the Court will grant Mr. Smith's motion to reduce
his sentence. Mr. Smith's sentence will be modified to
135 months' incarceration, the mid-point of the new
Guidelines range, with credit for time served.
March 10, 2010, Mr. Smith and 12 others were indicted for a
conspiracy to sell phencyclidine (PCP), heroin, powder
cocaine, and cocaine base in Washington, D.C. and Maryland.
Indictment [Dkt. 3]. Count One of the Indictment charged Mr.
Smith and others with Conspiracy to Distribute and Possess
With Intent to Distribute PCP, Heroin, Cocaine, and Cocaine
Base in violation of 21 U.S.C. § 846 and Count Three
charged Mr. Smith with Unlawful Possession With Intent to
Distribute PCP in violation of 21 U.S.C. § 841(a)(1)
& (b)(1)(C). Id.
September 10, 2010, a Grand Jury returned a Superseding
Indictment that charged Mr. Smith with:
Count 1: Conspiracy to Distribute and Possess With Intent to
Distribute PCP, Heroin, Cocaine, Cocaine Base, and Marijuana
in violation of 21 U.S.C. § 846;
Count 2: Conspiracy to Participate in a Racketeer Influenced
Corrupt Organization in violation of 18 U.S.C. §
Count 24: Unlawful Possession With Intent to Distribute PCP,
in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).
Indictment [Dkt. 88].
indictments arose from an FBI investigation that started in
2009, following the murder of a witness in a D.C. Superior
Court case. Between December 1, 2009 and March 10, 2010, the
FBI intercepted over 3, 000 telephone calls and surveilled
defendant Mark Pray and his drug-distributing
co-conspirators, including Mr. Smith. See Final Presentence
Investigation Report (PSR) [Dkt. 203] ¶¶ 22-23. The
Pray Drug Conspiracy was involved in the distribution of
large quantities of PCP, heroin, cocaine, cocaine base, and
marijuana. Id. ¶ 22. Members of the conspiracy
carried firearms while participating in drug sales and also
used violence or threats of violence to further and to
protect the conspiracy. Id.
Smith was involved in the Pray Drug Conspiracy from some time
in 2009 until March 11, 2010. Id. ¶ 27. His
role was to sell PCP to customers and users in the Barry
Farms neighborhood of Washington, D.C. Id. Mr. Smith
was not alleged to have been involved in any violence
committed by the Pray Drug Conspiracy and was not alleged to
have possessed a gun during his sales of PCP.
March 25, 2011, Mr. Smith pleaded guilty under Federal Rule
of Criminal Procedure 11(c)(1)(C) to Count 2 of the
Superseding Indictment, which charged him with Conspiracy to
Participate in a Racketeer Influenced Corrupt Organization
(RICO) in violation of 18 U.S.C. § 1962(d). Plea
Agreement [Dkt. 151]. Mr. Smith admitted that his relevant
conduct involved at least one but less than three kilograms
of PCP. Id. ¶ 2; see also Factual Proffer [Dkt.
152] at ¶ 9. The parties agreed on a sentence of 156
months. Plea Agreement at ¶ 5. The plea was “wired
to, ” i.e. conditioned upon, pleas by co-defendants
Charles Wade, Robert McMillan, and Herman Williams, who were
scheduled to go to trial with Mr. Smith. Id. ¶
respect to drug-trafficking offenses, the [United States]
Sentencing Guidelines establish a defendant's base
offense level according to the type and weight of the
drug.” Dillon v. United States, 560 U.S. 817,
821 (2010) (citing USSG § 2D1.1(a), (c)). Mr.
Smith's relevant conduct included at least one kilogram
of PCP, which resulted in a base offense level of 32 under
United States Sentencing Guideline (USSG) § 2D1.1. After
a three-level reduction for early acceptance of
responsibility under USSG § 3E1.1, Mr. Smith's total
offense level was 29. PSR ¶¶ 49-58. Mr. Smith's
criminal record placed him in Criminal History Category V,
Id. ¶ 67, and thus his Guideline range was 140
to 175 months. Id. ¶ 111. The Court accepted
the Rule 11(c)(1)(c) plea and, on August 9, 2011 and
sentenced Mr. Smith accordingly to a term of imprisonment of
156 months and 60 months of supervised release. Judgment
the Sentencing Commission amended the Guidelines and
“reduced the base offense level by two levels for most
drug offenses.” Hughes, 138 S.Ct. at 1774 (citing USSG
App. C, Amdt. 782 (Supp. Nov. 2012-Nov. 2016)). Amendment 782
was later made retroactive “for defendants who . . .
already had been sentenced under the higher offense
levels.” Id. (citing USSG, Amdt. 788). Mr.
Smith moved for a reduction in his sentence under Amendments
782 and 788 and 18 U.S.C. § 3582(c)(2). First Mot. to
Reduce Sentence [Dkt. 541]; FPD Mot. to Reduce Sentence [Dkt.
542]. This Court denied his motion, finding that
Mr. Smith's sentence was based on an agreed-upon plea
under Rule 11(c)(1)(C), in the nature of a contract, and not
on a sentencing range from the Guidelines so that he was not
eligible for a sentence reduction. Order [Dkt. 560]. Mr.
Smith appealed. In the meantime, the Supreme Court had issued
its decision in Hughes, affirmatively answering the question
of whether “a defendant who enters into a Fed. R. Crim.
P. 11(c)(1)(C) plea agreement is generally eligible for a
sentence reduction if there is a later, retroactive amendment
to the relevant Sentencing Guidelines range.” Hughes,
138 S.Ct. at 1772. On Mr. Smith's appeal, the D.C.
Circuit emphasized that the Guidelines are the
“starting point for every sentencing calculation in the
federal system, ” including most sentences in accord
with Rule 11(c)(1)(C) pleas. United States v. Smith,896 F.3d 466, 470-71 (D.C. Cir. 2018) (quoting ...