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United States v. White

United States District Court, District of Columbia

August 6, 2019

UNITED STATES OF AMERICA
v.
ANTONE WHITE, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         In 1994, Antone White, Eric Hicks, and Ronald Hughes were sentenced to life in prison after a jury found them guilty of drug trafficking and racketeering conspiracy offenses, stemming from White and Hicks' leadership of, and Hughes' membership in, the “First Street Crew, ” which, from early 1988 until the defendants' arrests approximately five years later, sold crack cocaine and engaged in “violent activities, ” including murder and witness intimidation. United States v. White, 116 F.3d 903, 909-11 (D.C. Cir. 1997). Now, twenty-five years later, White and Hicks seek reductions of their sentences to time-served, and Hughes seeks a reduction in his supervised release term, based on Section 404 of the First Step Act of 2018 (“First Step Act”), Pub. L. 115-391, § 404, 132 Stat. 5194 (2018). See generally White's Emergency Suppl. Mot. to Reduce Sentence (“White Mot.”), ECF No. 690; Hicks' Mot. for Reduction of Sentence, ECF No. 684; Hicks' Emergency Suppl. Mot. to Reduce Sentence (“Hicks Suppl. Mot.”), ECF No. 688; Hughes' Emergency Mot. to Reduce Sentence (“Hughes Mot.”), ECF No. 695; Hughes Reply, ECF No. 707.[1] Section 404 makes retroactively available the more lenient penalties for certain crack cocaine offenses enacted in the Fair Sentencing Act of 2010 (“FSA”). Upon consideration of the defendants' motions for sentence reductions pursuant to Section 404 of the First Step Act, for the reasons discussed below, White and Hughes' motions are denied and Hicks' motion is granted in part and otherwise denied.[2]

         I. BACKGROUND

         As necessary context for the resolution of the pending motions, summarized below is background regarding the defendants' offense conduct, convictions and sentences, largely drawn from the defendants' sentencing hearings and related documents, and the D.C. Circuit's review of the defendants' direct appeals of their convictions, followed by review of the relevant statutory background.

         A. Factual Background

         Starting in early 1988, for approximately five years until the defendants' arrests, the “First Street Crew” sold “large amounts of crack” in the area of First and Thomas Streets, N.W. White, 116 F.3d at 909. Antone White “orchestrated the group's activities, ” working with several friends, including Eric Hicks from the outset and Ronald Hughes, who began working with White in 1990. Id. “Although White initially sold small amounts of cocaine, he soon became a wholesale supplier, selling ‘weight,' . . . and fronting his cohorts smaller amounts of cocaine to sell for him.” Id. Hicks eventually “took charge when . . . White was ‘out of the neighborhood,' i.e., in prison.” Id.

         The First Street Crew's “drug operation” involved “violent activities, ” including the murder and intimidation of witnesses against them. Id. For example, “ample evidence” showed that on October 6, 1992, “White and Hughes murdered” Arvell Williams, an acquaintance of White who was assisting in the United States Attorney's Office's investigation of the First Street Crew. Id. at 909, 916. After White correctly suspected that Williams was cooperating with law enforcement, White and Hughes shot Williams “sixteen times at close range, ” and “Williams was pronounced dead on the scene.” Id. at 909. “Several witnesses identified the shooters as White and Hughes.” Id. Moreover, one witness testified that after the murder, “he had overheard a conversation between White and Hughes in which one of them said ‘[We] killed the motherfucker, '” id. at 916 (alteration in original), and another witness “testified that White had told him ‘We took care of . . . [Williams], '” id. (second alteration in original).

         In March 1993, White, Hicks, Hughes, and two other co-defendants were charged in a 26-count indictment with, inter alia, “conspiracy to distribute cocaine base, RICO conspiracy, and numerous individual counts of drug distribution.” Id. at 909-10. Trial began in November 1993 and went to the jury approximately three months later on January 28, 1994. See Docket Entry (Nov. 1, 1993); Charge to the Jury (Jan. 28, 1994), ECF No. 215.

         1. The Defendants' Convictions

         On February 16, 1994, the jury found White, Hicks, and Hughes guilty of conspiracy to distribute and possess with intent to distribute fifty (50) grams or more of cocaine base (Count 1), in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(iii) (1993), an offense punishable by a statutory mandatory minimum term of imprisonment of 10 years and up to life imprisonment. See White Judgment & Commitment Order (“White J&C”) at 1, ECF No. 633-2; Hicks Judgment & Commitment Order (“Hicks J&C”) at 1, ECF No. 301; Hughes Judgment & Commitment Order (“Hughes J&C”) at 1, ECF No. 627-2; Indictment (Retyped) (Jan. 28, 1994) at 2-20, ECF No. 228; see also 21 U.S.C. § 846 (1993) (subjecting an individual to “the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy”). In connection with this count, the jury was instructed that the government must prove “some quantity of . . . crack cocaine, ” but that “the actual amount of crack possessed or distributed or the amount alleged in the indictment is not important and is not an element of the conspiracy offense.” Trial Tr. (Jan. 28, 1994) at 45:9-13, ECF No. 320. As discussed infra, in Part I.A.2, the Probation Office's Presentence Investigation Report (“PSR”) stated, based on the trial testimony, and the sentencing judge found, by a preponderance of the evidence, that the conspiracy involved the distribution, conservatively estimated, of 21.87 kilograms of cocaine base.

         White and Hicks were also convicted of a Racketeer Influenced and Corrupt Organization (“RICO”) conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 5), which was punishable by a statutory maximum term of life imprisonment because the RICO violation was “based on” the “racketeering activity” in Count 1. White J&C at 1; Hicks J&C at 1; see also Indictment (Retyped) (Jan. 28, 1994) at 22-30; 18 U.S.C. § 1963(a) (1993) (“Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both . . . .”).

         Finally, the jury convicted all three defendants of individual counts of unlawful distribution of, or unlawful possession with intent to distribute, cocaine base. White and Hicks were convicted in Counts 18 and 11, respectively, of distribution, on different dates, of 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) (1993), which offenses were punishable by a statutory mandatory minimum term of imprisonment of 5 years and up to 40 years' imprisonment. See White J&C at 1 (Count 18 for distribution conduct on Oct. 2, 1992); Hicks J&C at 1 (Count 11 for distribution conduct on Oct. 11, 1991); see also Indictment (Retyped) (Jan. 28, 1994) at 32, 35. The jury was instructed as to these two counts that the “government must prove beyond a reasonable doubt for each count that the defendant distributed a mixture or substance with the total weight of five grams or more which contained crack cocaine.” Trial Tr. (Jan. 28, 1994) at 30:10-13. As discussed infra, in Part I.A.2, the defendants' PSRs stated that Counts 18 and 11 involved 49.99 grams and 5.426 grams of cocaine base, respectively, drug quantities that the parties do not dispute. White Presentence Report (“White PSR”) ¶ 35, ECF No. 633-1; White Mot. at 6 n.4; Hicks Presentence Report (“Hicks PSR”) ¶ 34, ECF No. 713; Hicks Suppl. Mot. at 6 n.5.

         Finally, each defendant was also convicted in separate counts of distribution of, or unlawful possession with intent to distribute, on different dates, a detectable amount of cocaine base, punishable by up to 20 years' imprisonment, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (1993); see White J&C at 1 (convictions on Counts 6 and 7 for conduct on April 15 and 23, 1991, respectively); Hicks J&C at 1 (convictions on Counts 8 and 10 for conduct on Sept. 20 and Oct. 8, 1991, respectively); Hughes J&C at 1 (convictions on Counts 9, 12, and 13 for conduct on Oct. 4, 1991, and Jan. 14, 1992 twice, respectively); see also Indictment (Retyped) (Jan. 28, 1994) at 30-33 (charging a “detectable amount of cocaine base” for each of these counts). The jury was instructed on these counts that the government “need not prove that the defendant distributed any particular numerical amounts or weight of crack but must prove beyond a reasonable doubt for each count that the defendant distributed a detectable or measurable amount of crack.” Trial Tr. (Jan. 28, 1994) at 30:4-9; see also Id. at 31:1-33:7 (jury instruction on Count 13, for which no finding of a particular quantity of drugs was required).

         Hicks was acquitted of using or carrying a firearm in relation to a drug trafficking crime (Count 15), see Verdict Form at 4, ECF No. 238, and the jury was unable to reach a verdict, resulting in a mistrial, on the charges against White and Hicks for engaging in a continuing criminal enterprise (“CCE”) (Count 2), id. at 1, 3; as well as the charges against White and Hughes for the murder of Arvell Williams in furtherance of a CCE (Count 3), first-degree murder while armed (Count 4), using and carrying a firearm in relation to a crime of violence or a drug trafficking crime (Count 19), and possession of a firearm during a crime of violence (Count 20), id. at 2, 3, 5; White, 116 F.3d at 910.

         2. The Defendants' Sentences

         Following a two-day hearing, Judge Harold Greene sentenced White, Hicks, and Hughes to life in prison, after highlighting the defendants' “very large distribution of . . . twenty-one kilos” of crack cocaine, and “the intimidation or worse of witnesses.” Sentencing Tr. (May 11, 1994) at 93:1-2, 12-13, ECF No. 354. These defendants were not “minor offenders, ” id. at 92:3, but rather “kingpins in the drug trade, ” id. at 92:6. Moreover, in addition to “clear and convincing evidence” that White and Hughes murdered Williams, id. at 110:8-10, “the record” was “replete with” the defendants' “threats to others, ” and included “several witnesses who . . . were obviously scared, ” including “some [who] refused to give candid testimony when they finally did take the stand, ” id. at 93:14-17. The sentencing judge found that life sentences for White, Hicks, and Hughes were warranted “because if witnesses can be intimidated, injured or killed, all the crime bills Congress may pass will be just illusions, limited in practical effect.” Id. at 93:23-25. Application of the sentencing guidelines and related factual findings for each defendant, as well as their multiple past challenges to their convictions and sentences, are discussed in more detail below.

         a. Antone White

         In determining the applicable sentencing range under the U.S. Sentencing Commission's Guidelines Manual, White's conspiracy convictions in Counts 1 and 5, and three individual counts of distribution of cocaine base in Counts 6, 7, and 18, were grouped together, pursuant to U.S.S.G. § 3D1.2(d). White PSR ¶ 86. The applicable base offense level, under U.S.S.G. §§ 2D1.1(a)(3), (c)(1), was 42 due to the “over 21 kilos of crack . . . properly attributed to the conspiracy and to” White, and “it was foreseeable by him, as a leader of the crew and involved in it from the beginning, that there would be that much distribution or possession of crack by the conspiracy.” Sentencing Tr. (May 11, 1994) at 32:8-12; see White PSR ¶ 41. This drug quantity determination derived from the PSR's “conservative estimate” of the crack cocaine involved in the conspiracy, “based on testimony only, ” totaling 21.87 kilograms. See White PSR ¶¶ 25 & n.4, 41 (explaining that Probation used “conservative estimates in calculating the amount of drugs” distributed during the conspiracy). In addition, between December 1988 and October 1992, “law enforcement officials made numerous narcotics purchases, and seizures of drugs, from various members of the” First Street Crew, White PSR ¶ 35, which purchases and seizures were listed, by date, and amounted to 545.72 grams of cocaine base, id. These additional amounts were “not included” in the total 21.87 kilogram figure. Id.

         Although White contested the PSR's estimate of 21.87 kilograms of cocaine base, on the ground that the PSR's calculation relied on evidence that “didn't say whether” the drugs were “powder or crack, ” Judge Greene rejected that assertion at the sentencing hearing, Sentencing Tr. (May 9, 1994) at 25:4-5, ECF No. 353, finding, “by a preponderance of the evidence, ” that the 21.87 kilogram estimate was “quite conservative, ” Sentencing Tr. (May 11, 1994) at 90:4-8. He concluded that the PSR “used reasonable methods, ” id. at 90:6, that Probation's “decisions are supported by the record, ” id. at 90:6-7, and that the PSR “could have easily doubled the 21 kilos by using other reliable information” besides testimony at trial, id. at 90:9-11.

         White's base offense level of 42 was then increased by eight levels: (1) two levels were added for White's possession of a dangerous weapon, under U.S.S.G. § 2D1.1(b)(1), White PSR ¶ 88, based on his “participat[ion] in the killing of” Williams, who was killed after being shot by White at close range, the recovery of a pistol with White's fingerprint on the magazine, and the testimony of co-conspirators who watched White “handle guns” throughout the conspiracy, Sentencing Tr. (May 9, 1994) at 38:17-39:1, 42:18-23; see White PSR ¶ 53; (2) four levels were added as a role adjustment, under U.S.S.G. § 3B1.1(a), since White was a “leader of” the First Street Crew's criminal activity, which “include[d] five or more persons, ” Sentencing Tr. (May 11, 1994) at 117:10, 14-16; see White PSR ¶ 90; and (3) two levels were added for obstruction of justice, under U.S.S.G. § 3C1.1, based on (a) the “clear and convincing evidence” that White killed a cooperating witness, Williams, Sentencing Tr. (May 9, 1994) at 43:4-7, 12-13, (b) White's warning to another member of the First Street Crew, Jeff Thomas, “not to cooperate with” the government's investigation, id. at 43:15-17; Sentencing Tr. (May 11, 1994) at 117:17-19; see White PSR ¶¶ 82, 91, and (c) suspicions that White was involved in the murder of three other witnesses whom White believed were cooperating with the government, see White PSR ¶ 82. Judge Greene explained that he did not take “into account” the latter suspicions about the three other murders since “none of that became part of” the trial record, but noted that “it is not farfetched to say that when you have . . . a brutal killing of an informer . . . other killings or other intimidation [were] involved particularly when some . . . witnesses came here obviously in fear and trembling, ” Sentencing Tr. (May 11, 1994) at 112:1-9.

         White's total offense level added up to 50, but in accordance with U.S.S.G. § 5A, comment. (n.2), was capped at an offense level of 43. Sentencing Tr. (May 11, 1994) at 117:19-21; see White PSR ¶ 96. Combined with his criminal history category of I, since White had no prior adult convictions, White's sentencing range under the Guidelines Manual was life imprisonment. Sentencing Tr. (May 11, 1994) at 117:22-118:9; see White PSR ¶¶ 101, 128.

         (i) White's Sentence

         White was sentenced by Judge Greene to concurrent life sentences on the two conspiracy convictions in Counts 1 and 5, concurrent terms of 240 months' incarceration on Counts 6 and 7 for his distribution of a detectable amount of cocaine base, and a concurrent term of 480 months' incarceration on Count 18 for distribution of 5 grams or more of cocaine base, involving White's sale of 49.99 grams of crack cocaine on October 2, 1992. See White J&C at 2; White PSR ¶ 35.

         (ii) White's Direct Appeal and Collateral Challenges

         White's sentence has been reviewed on direct appeal and on collateral review multiple times. On direct appeal, the D.C. Circuit rejected his challenges to the admission of out-of-court statements made by Williams prior to his death, White, 116 F.3d at 911, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence for his RICO conspiracy conviction, id. at 923, 926, the jury instructions on the RICO conspiracy and the drug conspiracy, id. at 925-26, the impartiality of the jury by which he was tried, id. at 928, and the propriety of sentencing him on both his drug conspiracy conviction and his RICO conspiracy conviction, id. at 930. The D.C. Circuit summarized White's offense conduct, stating that he “orchestrated the” First Street Crew's “drug operation and violent activities, ” id. at 909, involving “large amounts of crack, ” id., and that there was “ample evidence” for the district court to conclude White “murdered” Williams, id. at 916.

         Likewise, White's collateral attacks, under 28 U.S.C. § 2255, were denied. See In re White, Order, No. 18-3009, ECF No. 683 (D.C. Cir. Apr. 13, 2018) (denying White's petition for leave to file a successive § 2255 motion in which he sought to assert ineffective assistance of counsel); In re White, No. 16-3022, 2017 U.S. App. LEXIS 2125, ECF No. 654 (D.C. Cir. Feb. 6, 2017) (denying White's application for leave to file a second § 2255 motion, seeking retroactive application of holding in Graham v. Florida, 560 U.S. 48, 82 (2010), that a life sentence without parole imposed on a juvenile for a non-homicide offense violated the Eighth Amendment's Cruel and Unusual Punishments Clause); Mem. Order Dismissing Def.'s § 2255 Mot. (Dec. 23, 1999), ECF No. 479 (summarily denying White's first § 2255 motion, based on claim that the government had an illegal “agreement with a cooperating witness who testified for the prosecution at trial”).[3]

         In addition to these § 2255 collateral attacks, White has moved to reduce his term of imprisonment, pursuant to 18 U.S.C. § 3582(c)(2), for retroactive application of a guideline amendment, three times, in July 2002, March 2003, and July 2017, but each of those motions was denied. See Mem. Order (Jan. 18, 2018) at 3, ECF No. 675 (denying sentence reduction based on Amendments 505 and 782 to the Guidelines Manual, because the amendments did not “have the effect of lowering the defendant's applicable guideline range” (quoting U.S.S.G. § 1B1.10(a)(2)(B)); Mem. Order (May 29, 2003), ECF No. 561. Judge James Robertson, the presiding judge over the first two of those sentence reduction motions, denied White's simultaneous challenge that Apprendi v. New Jersey, 530 U.S. 466 (2000), should be applied to his case and rejected his claim that a jury was required to find the 21.87 kilogram drug quantity that led to his life sentence, because 18 U.S.C. § 3582(c)(2) was not an appropriate vehicle for this challenge. See Mem. Order (May 29, 2003) at 1.

         White has served approximately 26.5 years of his life term of imprisonment. White Mot. at 7. White concedes that his sentencing range under the Guidelines Manual today remains life in prison, just as the time of his original sentence. Id. at 11. Nevertheless, White seeks a reduction of his sentence, under Section 404 of the First Step Act, contending that he should now be subject to the penalties in 21 U.S.C. § 841(b)(1)(C), for which the maximum term of imprisonment is 20 years and the minimum term of supervised release is 3 years, since no drug quantity of 28 grams or more was proven to a jury beyond a reasonable doubt in 1994. Id. at 9. Accordingly, White seeks to have his sentence reduced to time served and 3 years of supervised release. Id. at 16.

         b. Eric Hicks

         Hicks' convictions for conspiring to distribute cocaine base and RICO conspiracy on Counts 1 and 5, and his three separate counts of distribution of cocaine base in Counts 8, 10, and 11, were grouped together, under U.S.S.G. § 3D1.2(d). Hicks PSR ¶ 84. His base offense level was 42, under U.S.S.G. §§ 2D1.1(a)(3), (c)(1), based on the finding that the conspiracy “involved 21 kilos or thereabouts.” Sentencing Tr. (May 11, 1994) at 132:10-12; see Hicks PSR ¶ 85. Hicks joined White's objection that the PSR's estimate of 21.87 kilograms of cocaine base did not specify whether the quantities were crack or powder cocaine, see Sentencing Tr. (May 9, 1994) at 73:25-74:1-3, and also disputed responsibility for the full 21.87 kilogram cocaine base quantity, because certain amounts were sold, from 1988 to 1990, by a different organization than the First Street Crew, and because he was in jail for two months in the summer of 1991, id. at 74:4-15, 75:12-25. Hicks also noted that a “minor part” of the 21.87 kilogram quantity was based on Williams' out-of-court statements, and objected to those small amounts of the total 21.87 kilogram quantity since he did not have an opportunity to cross-examine Williams, who had been murdered. Id. at 74:16-75:5. Judge Greene overruled these objections and concluded, based on the ample evidence supporting the PSR's drug quantity determination, that “Hicks was involved in the conspiracy from 1988 on, ” id. at 80:21-22, and that the 21.87 kilogram quantity was “appropriately attributed to the conspiracy” and “also appropriately attributed to” Hicks, Sentencing Tr. (May 11, 1994) at 132:9-12.

         Hicks' base offense level of 42 was increased by ten levels: (1) two levels were added for possession of a weapon, under U.S.S.G. § 2D1.1(b)(1), based on Hicks' possession of a loaded gun on multiple occasions during the conspiracy, Sentencing Tr. (May 11, 1994) at 132:19-133:1; Hicks PSR ¶¶ 58, 61, 86; (2) four levels were added as a role adjustment, under U.S.S.G. § 3B1.1(a), for Hicks' leadership role in “criminal activity with five or more persons” and being “in charge of the First Street Crew whenever . . . White was in jail or was otherwise occupied, ” Sentencing Tr. (May 11, 1994) at 132:13-18; see Hicks PSR ¶ 88; (3) two levels were added for obstruction of justice, under U.S.S.G. § 3C1.1, because Hicks “bribed” Michael Jackson, a First Street Crew member, “not to give information up to the grand jury” investigating Hicks for murder, by paying Jackson with money and crack cocaine, and offering to buy him an apartment, Sentencing Tr. (May 9, 1994) at 84:3-85:1; see Hicks PSR ¶¶ 69, 89; and (4) two levels were added, under U.S.S.G. § 3C1.2, because Hicks fled from law enforcement officers during his arrest, by speeding in a vehicle he was driving at over 80 miles per hour through several red lights, crashing into four cars during rush hour and then fleeing on foot into a stranger's home, Sentencing Tr. (May 11, 1994) at 133:4-7; Hicks PSR ¶¶ 71, 90.

         Hicks' total offense level of 52 was capped at 43, pursuant to U.S.S.G. § 5A, comment. (n.2). Sentencing Tr. (May 11, 1994) at 133:7-8; see Hicks PSR ¶ 94. His criminal history category was III, “based on a prior conviction” for stealing a car, Sentencing Tr. (May 11, 1994) at 133:9-10; Hicks PSR ¶ 96, and the fact that he was charged in this federal criminal case “while on probation” in an unrelated D.C. Superior Court case, Sentencing Tr. (May 11, 1994) at 133:9-10; Hicks PSR ¶ 98. Thus, Hicks' total offense level of 43, combined with his criminal history category of III, resulted in a sentencing range under the Guidelines Manual of life imprisonment. Sentencing Tr. (May 11, 1994) at 133:8-17; Hicks PSR ¶ 117.

         (i) Hicks' Sentence

         Hicks was sentenced to concurrent terms of life in prison on the two conspiracy convictions in Counts 1 and 5, 240 months on Counts 8 and 10, involving a detectable amount of cocaine base, and 480 months on Count 11, involving the sale of 5.426 grams of crack cocaine on October 11, 1991, see Hicks PSR ¶ 34, followed by concurrent terms of 5 years of supervised release on each count, see Hicks J&C at 1-3.

         (ii) Hicks' Direct Appeal and Collateral Challenges

         On direct review, the D.C. Circuit affirmed Hicks' convictions and sentence, rejecting his challenges to the admission of Williams' out-of-court statements, White, 116 F.3d at 911, the denial of his motion to sever his trial from the trial of his co-defendants, id. at 916, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence for the RICO conspiracy conviction, id. at 925, the jury instructions on the drug conspiracy, id. at 926, the impartiality of the jury by which he was tried, id. at 928, and the propriety of sentencing him on both his drug conspiracy conviction and his RICO conspiracy conviction, id. at 930 & n.16. The D.C. Circuit highlighted that Hicks “took charge” of the First Street Crew when White was in jail, id. at 909, and that “the independent evidence showing Hicks's role as a large-scale crack distributor was substantial, ” id. at 916. Hicks' sentence “became final” when his petition for a writ of certiorari to the Supreme Court was denied. United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).

         None of Hicks' subsequent collateral motions attacking his conviction and sentence, under 28 U.S.C. § 2255, resulted in any relief. See United States v. Hicks, 911 F.3d 623, 626, 628 (D.C. Cir. 2018), cert. denied, 139 S.Ct. 2651 (2019) (affirming denial of Hicks' § 2255 motion, challenging enhancement for “Reckless Endangerment During Flight, ” under U.S.S.G. § 3C1.2, as “unconstitutionally void for vagueness, ” since defendant “procedurally defaulted” by failing to raise issue on direct appeal and failing to establish prejudice from application of § 3C1.2); Order, United States v. Hicks, No. 18-3020 (D.C. Cir. Sept. 19, 2018) (per curiam) (denying certificate of appealability of district court's denial of Hicks' constitutional challenge based on Graham, 560 U.S. at 48); Order, United States v. Hicks, No. 05-3167 (D.C. Cir. Feb. 24, 2006) (per curiam) (denying Hicks' challenge to his sentence as unconstitutional under United States v. Booker, 543 U.S. 220 (2005), because Booker does not apply retroactively); Hicks, 283 F.3d at 380 (denying Hicks' attempt to supplement his initial § 2255 motion with a claim based on Apprendi, 530 U.S. at 466); Order (Nov. 6, 2000), ECF No. 491 (denying Hicks' initial § 2255 motion asserting that government had an illegal agreement with a cooperating witness at trial, that trial judge was “hostile to” counsel, and that government failed to provide Brady material). Notably, in September 2018, when affirming the denial of Hicks' request for a certificate of appealability, the D.C. Circuit noted that “to the extent [Hicks] asserts that his life sentence is unconstitutional because the drug quantity attributable to him was not submitted to the jury and proved beyond a reasonable doubt, [Hicks] has not cited a ‘new rule of constitutional law' supporting this proposition, nor has he shown that any such rule was made retroactive by the Supreme Court.” Order at 2, United States v. Hicks, No. 18-3020 (D.C. Cir. Sept. 19, 2018) (per curiam).

         Hicks' motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), for retroactive application of a guideline amendment also resulted in no relief. See Mem. Order at 1 (Feb. 2, 2006), ECF No. 576 (denying motion for application of Amendment 505, “which lowered the maximum base offense level to 38 for a defendant who, before the amendment, would have been assigned a base offense level of between 38 and 42 based on the weight of drugs involved, ” since “it made no difference to” Hicks' sentencing range under the Guidelines Manual).

         Having served approximately 26.5 years of his original life sentence, Hicks Suppl. Mot. at 7, Hicks concedes that his sentencing range under the Guidelines Manual today remains life in prison, just as the time of his original sentence, id. at 10. Nonetheless, he seeks a sentence reduction, pursuant to Section 404 of the First Step Act, claiming that he should now be subject to the penalties in 21 U.S.C. § 841(b)(1)(C), for which the maximum term of imprisonment is 20 years and the minimum term of supervised release is 3 years, since no drug quantity of 28 grams or more was proven to a jury beyond a reasonable doubt in 1994. See Hicks Suppl. Mot. at 8. Hicks thus seeks a sentence of time served and 3 years of supervised release. Id. at 2.

         c. Ronald Hughes

         Hughes' convictions for the cocaine base distribution conspiracy in Count 1, and three individual counts of distribution, or possession with intent to distribute, cocaine base in Counts 9, 12, and 13, were grouped together, under U.S.S.G. § 3D1.2(d). Hughes Presentence Report (“Hughes PSR”) ¶ 87, ECF No. 627-1. His base offense level was 40, under U.S.S.G. §§ 2D1.1(a)(3), (c)(2), based on the PSR's attribution of responsibility to Hughes for 10.94 kilograms of cocaine base, a “pro rata portion of” the 21.87 kilograms of cocaine base distributed by the First Street Crew from the time Hughes joined the conspiracy in the summer of 1990. Sentencing Tr. (May 11, 1994) at 138:13-16; Hughes PSR ¶¶ 80, 88. Judge Greene observed that the 10.94 kilogram amount reflected “about half of the rest of the conspiracy” and “was an appropriate and proper amount.” Sentencing Tr. (May 11, 1994) at 138:13-16; see Hughes PSR ¶ 80. This quantity of 10.94 kilograms of cocaine base, therefore, was “a reasonable estimate . . . that could have been reasonably foreseeable by” Hughes “and to have been distributed by the conspiracy” during that time. Sentencing Tr. (May 11, 1994) at 138:16-18.

         Hughes objected to the 10.94 kilogram quantity, claiming “he was absent for seven months in 1990 and 1991, ” Sentencing Tr. (May 11, 1994) at 138:19-20, and any quantities in the PSR's estimate from that time period “should be deducted, ” id. at 138:20-21, such that he “should be held accountable, given those numbers, for 4.25 kilograms of cocaine, ” Sentencing Tr. (May 9, 1994) at 54:6-7. Rejecting those objections, Judge Greene found that Hughes was “on the street selling” in the 1990 to 1991 time period, and even if the seven-month time period were “deducted, ” the “amount would still be over five kilos” and thus would not change Hughes' base offense level. Sentencing Tr. (May 11, 1994) at 138:19-25-139:1.

         Hughes' base offense level of 40 was increased by four levels: (1) two levels were added for possession of a firearm, under U.S.S.G. § 2D1.1(b)(1), based on Hughes' participation in shooting death of Williams and on “co-conspirator testimony” corroborating Hughes' possession of guns during the conspiracy, Sentencing Tr. (May 9, 1994) at 69:10-13; Sentencing Tr. (May 11, 1994) at 139:4-6; Hughes PSR ¶ 89; and (2) two levels were added for obstruction of justice, under U.S.S.G. § 3C1.1, because Hughes murdered Williams and threatened, while in D.C. jail, to “shank [] up” Dequette Barr, another member of the First Street Crew, when he heard that Barr planned to testify against Hughes at trial, Sentencing Tr. (May 9, 1994) at 69:14-19; Sentencing Tr. (May 11, 1994) at 139:5-6; Hughes PSR ¶¶ 76, 92.

         Hughes' total offense level of 44 was capped at an offense level of 43, under U.S.S.G. § 5A, comment. (n.2). Sentencing Tr. (May 11, 1994) at 139:7-8; Hughes PSR ¶ 97. This total offense level, combined with Hughes' criminal history category of III, based on “several” prior “drug convictions, ” Sentencing Tr. (May 11, 1994) at 139:5-6, resulted in a sentencing range under the Guidelines Manual of life in prison, id. at 139:9-19; Hughes PSR ¶ 123.

         (i) Hughes' Sentence

         Hughes was sentenced to life imprisonment on the conspiracy conviction in Count 1, and concurrent terms of 240 months' imprisonment on Counts 9, 12, and 13 for distribution of a detectable amount of cocaine base, followed by concurrent terms of 5 years of supervised release on all counts. Hughes J&C at 2, 3.

         (ii) Hughes' Direct Appeal and Collateral Challenges

         Hughes' sentence was affirmed on direct appeal by the D.C. Circuit, over Hughes' challenges to the admission of out-of-court statements by Williams, White, 116 F.3d at 911, the timing of the government's disclosure of its witness list and related Brady violations, id. at 918, limitations placed on his cross-examination of three government witnesses, id. at 919, the admission of narcotics expert testimony, id. at 921, the sufficiency of the evidence that Hughes joined the conspiracy after his eighteenth birthday, id. at 922, the jury instructions on the drug conspiracy, id. at 926, and the impartiality of the jury by which he was tried, id. at 928. The D.C. Circuit highlighted the “ample evidence” that Hughes, with White, “murdered Williams.” Id. at 916.

         In October 2000, Judge Robertson granted Hughes' motion for a reduction of sentence, under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, based on retroactive application of Amendment 505 to the Guidelines, which reduced the base offense level applicable for five to fifteen kilograms of cocaine base to 38. See Order (Aug. 6, 2002) at 2, ECF No. 536; see also U.S.S.G. App. C, amend. 536 (eff. Nov. 1, 1995) (adding Amendment 505 to list of retroactive amendments). This retroactive amendment had the effect of reducing Hughes' total offense level to 42, and combined with his criminal history category of III, produced a sentencing range under the Guidelines Manual of 360 months to life. Order (Aug. 6, 2002) at 2. Judge Robertson concluded, in granting this discretionary reduction, that Hughes' sentence on the conspiracy conviction in Count 1 “should be reduced to 360 months, ” and left “all other provisions of his sentence” unchanged. Id. at 1, 2.

         At the same time, Hughes moved to vacate his sentence, under 28 U.S.C. § 2255, based on Apprendi, 530 U.S. at 466. See Id. Judge Robertson denied Hughes' Apprendi challenge, concluding Apprendi was not retroactively available to Hughes since Apprendi was “not a watershed rule of procedure” that affected “the accuracy of the underlying convictions themselves.” Id. at 6. Hughes' other efforts to collaterally attack or reduce his sentence have been unsuccessful. See Mem. Order (Nov. 9, 2006) at 7-9, ECF No. 578 (denying Hughes' § 2255 claim of ineffective assistance of trial counsel); Order (Mar. 10, 2010) at 1-2, ECF No. 601 (denying Hughes' motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) for retroactive applications of Amendments 706 and 711, since these amendments did not lower his sentencing range under the Guidelines Manual).

         Hughes completed his 360-month term of imprisonment on May 13, 2019 and is currently serving his concurrent 5-year terms of supervised release. Hughes Reply at 1. Hughes concedes that today, the bottom of his sentencing range under the Guidelines Manual remains 360 months. Hughes Mot. at 8. Even so, Hughes now seeks, pursuant to Section 404 of the First Step Act, a reduction of his supervised release terms from 5 to 3 years, Hughes Reply at 2, 14, claiming that he should now be subject to the penalties in 21 U.S.C. § 841(b)(1)(C), since no drug quantity was proven to a jury beyond a reasonable doubt in 1994, id. at 2.

         B. Statutory Background

         The Controlled Substances Act sets forth three statutory penalty ranges, of 10 years to life in prison, 5 to 40 years in prison, and up to 20 years in prison, “applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense.” Dorsey v. United States, 567 U.S. 260, 266 (citing 21 U.S.C. §§ 841(b)(1)(A)-(C)). At the time the defendants were charged, convicted, and sentenced, and until 2010, the 10-years-to-life statutory penalty range was triggered by a drug trafficking offense involving 50 grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A)(iii) (1993), the 5-to-40-year range by a drug trafficking offense involving 5 grams or more of cocaine base, id. § 841(b)(1)(B)(iii) (1993), and the 0-to-20-year range by a drug trafficking offense involving only a detectable amount of cocaine base, id. § 841(b)(1)(C) (1993). This penalty scheme treated “crack cocaine crimes as far more ...


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