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United States v. Holmes

United States District Court, District of Columbia

August 17, 2019

UNITED STATES OF AMERICA
v.
ANTHONY L. HOLMES, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         After six prior state or local felony convictions for drug offenses, three of which also included gun offenses, the defendant, Anthony Holmes, was stopped driving a speeding van on December 21, 2001, and ultimately arrested, after throwing punches and kicks at the arresting officer, when police found a loaded nine millimeter semi-automatic gun, with extra ammunition, under the driver's seat and 9.2 grams of crack cocaine on his person. United States v. Holmes, 385 F.3d 786, 787, 788-89 (D.C. Cir. 2004). He was subsequently convicted, after a jury trial, of unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 1), unlawful possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) (Count 2), and using, carrying and possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 3). Jury Verdict Form (Oct. 31, 2002) at 1-2, ECF No. 22; Judgment & Commitment Order (Mar. 13, 2003) (“2003 J&C”) at 1, ECF No. 27. For these convictions, the defendant was sentenced, in 2003, to two concurrent terms of 360 months' imprisonment on Counts 1 and 2, and a consecutive term of 60 months' imprisonment on Count 3. 2003 J&C at 1-2. Following the grant of his motion, under 28 U.S.C. § 2255, the defendant had a plenary resentencing hearing in 2011, after the effective date of the Fair Sentencing Act of 2010 (“FSA”), and was resentenced to a below-Guidelines sentence of two concurrent terms of 240 months' imprisonment on Counts 1 and 2, and a consecutive term of 60 months' imprisonment on Count 3, totaling a 25-year prison sentence, notwithstanding his request to be resentenced at the mandatory minimum penalty required by his gun convictions, on Counts 1 and 3, of 20 years' imprisonment. Amended Judgment at 1-3 (May 25, 2011), ECF No. 98; Statement of Reasons (May 25, 2011) (sealed) (“Resentencing SOR”) at 2, 3, ECF No. 99; Resentencing Tr. (May 12, 2011) at 10:11-17, ECF No. 122.

         Now, after serving approximately 17.5 years of his 25-year prison term, and with “approximately 3 years of good time and jail credit, ” the defendant claims entitlement to a third sentencing hearing, and again presses the same request rejected in 2011 that his sentence be reduced to a collective term of “20 years of imprisonment, ” allowing for his “immediate release, ” based on Section 404 of the First Step Act of 2018 (“First Step Act”), Pub. L. 115-391, § 404, 132 Stat. 5194, 5222 (2018). Def.'s Mot. Reduce Sentence Pursuant to First Step Act of 2018 (“Def.'s Mot.”) at 2, 10 & n.5, ECF No. 123.

         Both the government and defendant agree that the defendant is eligible for a sentence reduction under Section 404 and that the limitations set out in Section 404(c) on the Court's power to grant such relief are inapplicable. Gov't's Resp. at 1, 10 n.7; Def.'s Mot. at 2, 3 n.1. The parties part ways only as to whether the Court should exercise discretion to reduce his sentence. Gov't's Opp'n at 14, ECF No. 126; Def.'s Mot. at 10. The parties are wrong. For the reasons discussed more fully below, the defendant's 2011 sentence was “previously imposed . . . in accordance with the amendments made by” FSA's sections 2 and 3, and as a result, the defendant's pending motion is barred by the limitations in Section 404(c).

         I. BACKGROUND

         The defendant's pending Section 404 motion is the defendant's third bite at the apple to obtain a sentence for his gun and drug convictions at the mandatory minimum applicable to his gun offenses in Counts 1 and 3. As necessary context for understanding the parties' arguments and resolution of the defendant's motion, the defendant's two prior sentencing proceedings are detailed below.

         A. The Defendant's Initial 2003 Sentencing

         At his initial sentencing hearing, on February 28, 2003, see Min. Entry (Feb. 28, 2003), the defendant faced a combined 20-year mandatory minimum term of imprisonment based on his 18 U.S.C. § 922(g)(1) conviction on Count 1, which carried a 15-year mandatory minimum and up to life sentence, under 18 U.S.C. § 924(e), due to his at least three previous serious drug offenses, and his 18 U.S.C. § 924(c)(1)(A)(i) conviction on Count 3, which carried a mandatory consecutive sentence of 5 years' imprisonment. Presentence Investigation Report (Feb. 21, 2003) (“2003 PSR”) at 1, ¶ 71, ECF No. 128. The defendant's conviction on Count 2, for unlawful possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), carried a mandatory minimum sentence of 10 years and up to life in prison, due to the defendant's prior felony drug convictions. Id. at 1 (citing 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii)); see also Gov't's Notice of Applicability of Enhanced Penalties and Information Concerning Def.'s Prior Convictions Pursuant to 21 U.S.C. § 851(a)(1) at 1-2, ECF No. 18 (listing defendant's six prior felony convictions for illegal drug and gun offenses).[1] Count 2's 10-year mandatory minimum had no effect on the overall 20-year mandatory minimum sentence required to be imposed due to the defendant's two gun convictions.

         Under the U.S. Sentencing Commission's 2002 Guidelines Manual, the defendant's total offense level for Counts 1 and 2 was 37. 2003 PSR ¶¶ 12, 21. Specifically, in determining the applicable sentencing range, the guidelines were applied as follows: (1) his conviction for unlawful possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1), on Count 1, and unlawful possession with intent to distribute 5 grams or more of cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), on Count 2, were grouped together, pursuant to U.S.S.G. § 3D1.2(c), 2003 PSR ¶ 12; (2) the base offense level on Count 1 was 24, U.S.S.G. § 2K2.1(a)(2), and on Count 2 was 26, U.S.S.G. § 2D1.1(c)(7), for an offense involving 9.2 grams of cocaine base, and pursuant to U.S.S.G. § 3D1.2(a), the higher offense level of 26 was used, 2003 PSR ¶¶ 12, 13; and (3) two levels were added for possession of a firearm and ammunition in connection with another felony offense, U.S.S.G. § 2D1.1(b)(1), 2003 PSR ¶ 14, for an adjusted offense level of 28 on the grouped Counts 1 and 2, id. ¶ 18. That adjusted offense level jumped to a final offense level of 37, however, because the defendant qualified as a “career offender, ” pursuant to U.S.S.G. § 4B1.1(b), and the maximum statutory penalty on Count 2 was life in prison. 2003 PSR ¶¶ 19, 21, 71.[2]

         The defendant's Criminal History Category was VI for three reasons: the defendant had 22 criminal history points, 2003 PSR ¶ 35; he was a “career offender, ” pursuant to U.S.S.G. § 4B1.1, 2003 PSR ¶ 36; and he was an “armed career criminal, pursuant to U.S.S.G. § 4B1.1(4)(c), ” 2003 PSR ¶ 37. Combined with his Final Offense Level of 37, the defendant's sentencing range under the 2002 Guidelines Manual, pursuant to U.S.S.G. § 4B1.1(c)(2), was 360 months to life in prison, plus a 60-month mandatory minimum consecutive sentence for the Count 3 gun conviction, under 18 U.S.C. § 924(c)(1)(A)(i), since “adding the mandatory minimum consecutive penalty required by” the § 924(c) count “to the minimum and the maximum of the otherwise applicable guideline range determined for the count(s) of conviction other than the” § 924(c) count, U.S.S.G. § 4B1.1(c)(2), was greater than the 360-months-to-life range in “the career offender table listed in” U.S.S.G. § 4B1.1(c)(3) for § 924(c) offenders, 2003 PSR ¶ 23. This resulted in a guideline range of 420 months (35 years) to life. 2003 PSR ¶¶ 23, 72; 2003 J&C at 6 (adopting the factual findings and guideline application in the 2003 PSR).

         Under the then-mandatory Guidelines Manual, then-presiding Judge Henry H. Kennedy, Jr. sentenced the defendant to concurrent terms of 360 months' imprisonment on Counts 1 and 2, and a consecutive term of 60 months' imprisonment on Count 3, totaling 420 months (35 years), followed by concurrent supervised release terms of 5 years on Counts 1 and 3 and 8 years on Count 2. 2003 J&C at 2-3. On direct appeal, the D.C. Circuit affirmed the defendant's convictions. See Holmes, 385 F.3d at 787.

         B. The Defendant's 2011 Resentencing

         In February 2006, the defendant filed a § 2255 motion to vacate his sentence based on ineffective assistance of trial counsel, see Def.'s § 2255 Mot., ECF No. 41, and later amended this motion, in June 2007, to request resentencing in light of United States v. Booker, see 543 U.S. 220, 244, 245 (2005) (holding that the U.S. Sentencing Guidelines must be treated as advisory rather than mandatory to avoid violating the Sixth Amendment's right to a jury trial, which requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt may be used to increase the defendant's statutory sentence); see also Def.'s Mot. for Leave to Amend § 2255 Mot., ECF No. 63; Order (Feb. 18, 2010) at 2, ECF No. 85 (granting defendant's motion to amend his § 2255 motion). In January 2011, the defendant's request for resentencing in light of Booker was granted, and his § 2255 motion was otherwise denied. See Order (Feb. 18, 2010) at 3 (denying defendant's § 2255 ineffective assistance claim); Min. Entry (Jan. 28, 2011) (setting Booker resentencing date at a status conference).

         In connection with the defendant's resentencing, Judge Kennedy ordered that a new PSR be prepared. See Referral to Probation Office for Updated PSR (Jan. 28, 2011); Resentencing Presentence Investigation Report (Apr. 14, 2011) (“2011 PSR”) ¶ 7, ECF No. 91 (“[O]n January 28, 2011, the Court ordered the defendant be resentenced in light of the Booker decision.”). The 2011 PSR applied the 2002 Guidelines Manual, see 2011 PSR ¶ 16, and again determined that the base offense level for grouped Counts 1 and 2 was 26 and, because the defendant was a career offender, his final offense level was 37, pursuant to U.S.S.G. § 4B1.1, see 2011 PSR ¶¶ 23, 29. His sentencing range under the Guidelines Manual remained the same: 360 months to life on Counts 1 and 2, to which was added the consecutive term of 60 months on Count 3, pursuant to U.S.S.G. § 4B1.1(c)(2)(A), for a guideline range of 420 months to life, 2011 PSR ¶¶ 22, 85; Resentencing Tr. (May 12, 2011) at 16:12-18.

         The government and the defendant both objected to use of the 2002 Guidelines Manual, and instead contended that “the 2010 guidelines and supplement to the guidelines” should be used. 2011 PSR at 24-25. The government urged that the base offense level for Count 2 should be “based on the amount of drugs and in light of the amendments to the guidelines, ” and the defendant “concur[red] with the government . . . because of the ‘change in law regarding the quantity of crack cocaine.'” Id. at 24. In response, the Probation Office explained that if the “2010 Sentencing Guidelines and the Supplement to the 2010 Sentencing Guidelines” were used, the base offense level on Count 2 “would be level 18” because that conviction involved “more than 5.6 grams but less than 11.2 grams, ” id., but “the defendant's case [was] before the Court for reconsideration and resentencing based on the U.S. v. Booker decision and not the retroactivity of” the Guidelines, id. In any event, “resolution of this objection would not effect the defendant's total guideline calculation, in light of the career offender status.” Id. at 25.[3]

         At the resentencing hearing, on May 12, 2011, the defendant was present and heard. See Resentencing Tr. (May 12, 2011) at 14:13-16:11. Judge Kennedy rejected the Probation Office's use of the 2002 Guidelines Manual and concluded instead that “the sentencing manual for this year is the appropriate sentencing manual to use, ” id. at 16:16-17, but that conclusion did “not affect” the defendant's “guideline range” of 420 months (35 years) to life, the identical range applicable at his initial sentencing hearing in 2003, id. at 16:12-18. The defendant continued to face a mandatory minimum sentence of 20 years stemming from his convictions on Counts 1 and 3 for ...


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