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 ...