MEMORANDUM OPINION & ORDER
John
D. Bates United States District Judge.
David
Long is serving a term of imprisonment for conspiracy to
participate in a Racketeer Influenced Corrupt Organization
(“RICO conspiracy”) in violation of 18 U.S.C.
§ 1962(d). Long was a leader of a criminal organization
whose racketeering activities included murder, assault, and
narcotics distribution. The U.S. Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”)
recommended that Long be sentenced to a life term of
imprisonment, but Long pleaded guilty pursuant to a
“C” plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C). The Court accepted the plea
agreement's binding sentencing recommendation of 348
months' imprisonment. Long now moves for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2), arguing
that he is entitled to such relief under Amendment 782 to the
United States Sentencing Guidelines because that amendment
reduced the base offense level of one category of underlying
racketeering activity that contributed to his final
guidelines range. Mot. for Modification or Reduction of
Sentence [ECF No. 312] at 1-4. For the reasons that follow,
Long's motion will be denied.
Section
3582(c)(2) authorizes a court to reduce a defendant's
term of imprisonment where the term originally imposed was
“based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” However,
“[a] reduction in the defendant's term of
imprisonment is not consistent with [an applicable]
policy statement and therefore is not authorized under 18
U.S.C. § 3582(c)(2) if . . . [the amendment invoked by
the defendant] does not have the effect of lowering the
defendant's applicable guideline range.” U.S.S.G.
§1B1.10(a)(2) (U.S. Sentencing Comm'n 2018)
(emphasis added). Section 3582(c)(2) empowers a court to act
“upon motion of the defendant . . . or on its own
motion.”[1]
The
U.S. Sentencing Commission issued Amendment 782 to the
Guidelines in 2014 to reduce by two levels the offense level
assigned to certain drug crimes. See U.S.S.G.,
Suppl. to App'x C, amend. 782 (effective Nov. 1, 2014).
The Sentencing Commission authorized courts to apply this
sentencing reduction retroactively pursuant to 18 U.S.C.
§ 3582(c)(2). See U.S.S.G. §1B1.10(a),
(d).
Long
believes he is eligible for a retroactive sentence reduction
under Amendment 782 because the calculation of his advisory
guidelines range for his RICO conspiracy offense rested, in
small part, on acts of drug distribution accomplished by the
criminal organization, and that Amendment 782 retroactively
lowered the base offense level for this type of drug
distribution offense. Mot. for Modification or Reduction of
Sentence at 2-3. But Long is not entitled to a sentence
reduction because application of Amendment 782 does not lower
his advisory guideline range. The Guidelines would recommend
the same sentence-life imprisonment-regardless of whether the
offense level of the drug distribution offense were decreased
under Amendment 782. In fact, because more serious categories
of racketeering conduct drove the applicable guideline range,
the same sentencing recommendation would apply even if the
drug distribution offenses had been omitted entirely from the
Court's guidelines calculation.
An
explanation of why Amendment 782 does not change Long's
guideline range first requires examination of the
labyrinthine process by which the Court determined the
sentencing range in the first place. Long was sentenced under
the 2011 Guidelines Manual, which advised that the base
offense level for his RICO conspiracy offense was the greater
of “19” or “the offense level applicable to
the underlying racketeering activity.” U.S.S.G.
§2E1.1 (U.S. Sentencing Comm'n 2011). Where a
defendant has participated in multiple underlying
racketeering activities, the Guidelines Manual directs that a
combined offense total for the RICO conspiracy offense be
calculated by grouping all underlying counts “involving
substantially the same harm, ” id.
§3D1.2, calculating an offense level for each group,
id. §3D1.3, and then taking the offense level
of the most serious offense group (meaning the one having the
highest offense level) and increasing that level to account
for the number and severity of additional offense groups
attributed to the defendant, id. §3D1.4. Of
relevance here, a one-level increase is applied for each
additional offense group that is “equally serious or
from 1 to 4 levels less serious” than the most serious
offense group. Id. In practice this means that the
most serious underlying racketeering activity drives the
guideline range analysis by setting the baseline for the
final offense level, and the offense level then increases
according to the number and severity of additional offense
groups.
In
Long's case, the total offense level for RICO conspiracy
was calculated based on five offense “groups” of
racketeering activity. These five offense groups and their
corresponding adjusted offense levels, in order of severity,
were as follows:
-
|
Offense Group
|
Adjusted Offense Level
|
|
Murder of Antony Morrissey
|
45
|
|
Murder of Franklin Moyler
|
45
|
|
Distribution of at least 15 kilograms of heroin
|
44
|
|
Assault with intent to commit murder of Melvin
Terrell
|
43
|
|
Assault with intent to commit murder of Oakley
Michael Majors
|
41
|
Long
Sentencing Tr. [ECF No. 311] at 5:15-7:23. The two murder
offense groups carried the highest adjusted offense
levels-45-and thus set the baseline for Long's final
offense level. The heroin-distribution offense group
ultimately contributed a one-level increase because it
carried an adjusted offense level of 44 and was therefore
“equally serious or from 1 to 4 levels less
serious” than the murder offense groups. U.S.S.G.
§3D1.4; see Long Sentencing Tr. at 5:9-8:6.
After accounting for various increases and decreases,
Long's overall raw offense level calculation for RICO
conspiracy came out to 47. But the Guidelines sentencing
table stops at offense level 43, and the Guidelines
accordingly direct that any offense level of more than 43 be
treated as an offense level of 43. See U.S.S.G. ch.
5, pt. A, application note 2. Hence, Long's final offense
level under the Guidelines was treated as 43.
With a
criminal history category of V and an offense level of 43,
the Guidelines recommended a term of life imprisonment. After
considering this advisory guideline sentence, the Court
accepted Long's plea agreement and sentenced him to 348
months' imprisonment.[2]
Retroactive
application of Amendment 782 would not impact Long's
guideline range. If Amendment 782 were applied to the
heroin-distribution offense group, the result would be an
adjusted offense level of 42 instead of 44. Nevertheless, the
heroin-distribution offense group would have still been
“from 1 to 4 levels less serious” than the
45-level murder offense group and thus would contribute the
same one-level increase to the overall offense level. And
even if the heroin-distribution offense group had been
entirely omitted from the Guidelines calculation,
Long's offense level would still come out to a total
higher than the maximum guidelines offense level of 43 and
thus would be treated as if it were 43. Accordingly,
Amendment 782 “does not have the effect of lowering the
defendant's applicable guideline range, ” and a
sentence reduction in this case is therefore “not
authorized under 18 U.S.C. § 3582(c)(2).” U.S.S.G.
§1B1.10(a)(2)(B).
Accordingly,
upon consideration of Long's motion, and the entire
record herein, it is hereby ORDERED that
[312] Long's motion for a reduction of sentence is
DENIED.
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