IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

THE UNITED STATES oF AMERICA
Crim. NO. 09-237-01 (RCL)

V.

MARK D. SMITH

 

MEMORANDUM OPINION AND ORDER

Before the Court are defendant Mark D. Smith’s pro se motion [150] and supplemental
motions submitted through counsel [169] [173], seeking a sentence reduction pursuant to 18 U.S.C.
§ 3582(0)(2), and based upon the retroactive application of Amendment 782 of the United States
Sentencing Guidelines (the “Guidelines”). Smith also filed pro se a Motion for Summary
Judgment as a Matter of LaW [156].

After considering the motions, the entire record herein, and the applicable laW, the Court
finds that although Smith is eligible for a sentence reduction under § 3582(0)(2), such a reduction
is not Warranted in these circumstances, and will therefore DENY his motions.

BACKGROUND

On August 24, 2010, Smith pleaded guilty to one count of Conspiracy to distribute and
Possess With Intent to Distribute cocaine, in contravention of 21 U.S.C. §§ 841 (a)(l ), 84 l (b)(l )(a),
and 846, pursuant to Fed. R. Crim. P. ll(c)(l)(C). Plea Agreement, ECF No. 102 11 l.

In accepting the terms of his plea agreement, Smith acknowledged that he Was
“accountable for at least 1.5 kilograms but less than 4.5 kilograms of cocaine base[,]” Which
represented “the total amount involved in [his] relevant criminal conduct.” Ia'. 11 2. He and the
Government separately agreed that “156 months[’ incarceration] [Was] the appropriate sentence

for this offense.” Ia'. 1 3. Further, Smith and the Government agreed as follows:

Should the Court not agree that the sentence agreed upon by the parties is

appropriate, and [if Smith] does not withdraw his plea, [he] and the Government

agree to the following: [Smith] will be sentenced according to Title 18, United

States Code, Sections 3553(a) and 3553(0) through (f) and upon consideration of

the United States Sentencing Guidelines.

Id. 11 5.

On April 30, 2014, the U.S. Sentencing Commission (the “Commission”) submitted to
Congress Amendment 782 of the Guidelines, proposing a downward revision to the applicable
sentencing ranges for drug trafficking offenses. The Commission then passed Amendment 788 to
allow Amendment 782’s revisions to be applied retroactively, and on November 1, 2014,
Amendment 782 and its retroactive application became effective. In ‘his current motion, Smith
seeks relief under these amended provisions of the Sentencing Guidelines.

` DISCUSSION

Smith`s § 3582(`0`)(2) Motions

To grant a motion for a sentence reduction under 18 U.S.C. § 3582(0)(2), two separate
conditions must exist. A prisoner must (l) be eligible for the requested reduction and (2) early
release must be warranted. Dillon v. United States, 560 U.S. 817, 827 (2010). Smith fails to meet
the second of these requirements because the facts of this case do not warrant early release in
accordance with any of the factors set forth in 18 U.S.C. § 3553(a). See id; § 3582(0)(2) (stating
the Court may reduce the term of imprisonment “on its own motion,” but must consider and weigh
the factors set forth in § 3553(a)).

Accordingly, although Smith is statutorily eligible for a sentence reduction, such a
reduction is not warranted in these circumstances Therefore, his motion for relief under §

3582(0)(2) will be denied.

i. Smith ’s sentence was based upon the Sentencing Guia'elines.

In United States v. Epps, 707 F.3d 337, 352 (D.C. Cir. 2013), the D.C. Circuit explained
that under § 3582(0)(2), a prisoner who had entered into a Rule ll(c)(l)(C) plea agreement is
eligible for a sentence reduction if his sentence was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” Ia'. (citing 18 U.S.C. § 35 82(c)(2)’s
standard for a sentence reduction). The opinion applied and interpreted Freeman v. United States,
564 U.S. 522 (2011), where a plurality of the Supreme Court explained that plea agreements do
not automatically disqualify a defendant for relief under § 3582(0)(2). The D.C. Circuit reasoned
specifically that, to determine whether a defendant’s term of incarceration was “based on” a
specific Guidelines range, courts should focus on “the reasons given by the district court for
accepting the sentence that was ultimately imposed.” Epps, 707 F.3d at 351.

The` Epps reasoning no longer` controls this inquiry. Las`t Term, in Hughes v. United States,
the Supreme Court modified the Freernan plurality, explaining that because the “Sentencing
Guidelines prohibit district courts from accepting [Rule ll(c)(l)(C)] agreements without first
evaluating the recommended sentence in light of the defendant’s Guidelines range, . . . the court’s
acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are”
necessarily “‘based on’ the defendant’s Guidelines range.” 138 S. Ct. 1765, 1776 (2018).‘

During the colloquy at Smith’s plea agreement hearing, the Court explained that “under
the Guidelines[,]”Smith faced a maximum sentence of lifetime imprisonment Tr. of Aug. 24,
2010 Plea Agreement Hearing at 4:22-25, 5:01-04. The Court further explained that it would not
“determine the guideline sentence until after trial” if Smith exercised his right to a jury trial and
was thereafter convicted Ia’. at 6:18_20.

The Government also presented an allocution and acknowledged that the plea agreement

was “pretty straightforward because it’s pursuant to ll(c)(l)(C), and the critical part of the

agreement is that the parties agree[d] a sentence of 156 months or 13 years [was] the appropriate
sentence.” Id. at 7:19-23.

At Smith’s sentencing hearing, the Government reminded the Court that “this is a [Rule
ll(c)(l)(]C[)] plea.” Tr. of Dec. 10, 2010 Sentencing at 2:12-13. See also U.S.S.G. U.S.S.G. §
6B1.2(c) (stating that courts must evaluate the recommended sentence in light of the defendant’s
Guidelines range). The Government asked the Court to “impose [the] sentence agreed to by the
parties.” Ia'. 3:24-25. In response, Smith’s counsel explained to the Court that the parties reached
a plea agreement “under the Guidelines.” Id. at 5:04. Although the Court entertained arguments
from Smith’s counsel as to his risk of recidivism, flight risk, and risk to the community, id. at 5-
7, it ultimately imposed the agreed-upon sentence of 156 months’ incarceration followed by 60
months of supervised release. Id. 'at 10118-24. The Court did not make a specific dr'ug quantity
calculation

Based on this record, the Government cannot dispute that the Guidelines range was “‘a
relevant part of the analytic framewor ”’ that this Court used to approve Smith’s ll(c)(l)(C)
agreement. Hughes, 138 S. Ct. at 1776 (quoting Freernan, 564 U.S. at 530). This is necessarily
so because the Sentencing Reform Act itself requires this Court to calculate and consider the
Guidelines range in every case. See 18 U.S.C. § 3553(a). Even where a “judge uses the sentencing

range as the beginning point to explain [a] decision to deviate from it,” the Supreme Court has

666 333

explained that the Guidelines are in a real sense the basis for the sentence. Molina-Martinez
v. United States, 136 S. Ct. 1338, 1345 (2016) (quoting Peugh v. United States, 569 U.S. 530, 542
(2013)).

Indeed, in Smith’s Memorandum in Aid of Sentencing and Motion for Voluntary

Surrender, defense counsel unequivocally urged this Court to adopt a sentence of 156 months

“[p]ursuant to Rule 1 l(c)(l)(C),” explaining that “[b]ased on all of the relevant sentencing factors”
appurtenant to the Guidelines, the parties jointly requested a sentence “to a period of incarceration
for a period of 156 months.” ECF No. 134, at 1-2. The Government did not oppose this motion.
And while it is true that “the Guidelines are advisory only, and so not every sentence will be
consistent with the relevant Guidelines range,” such cases “are a narrow exception to the general
rule that, in most cases, a defendant’s sentence will be ‘based on’ his Guidelines range.” Hughes,
138 S. Ct. at 1776 (citing Koons v. Unitea1 States, 138 S. Ct. 1783, 1789 (2018)). That exception-_
which applies only when a court expressly “discard[s] [the advisory range] in favor of mandatory
minimums and substantial assistance factors”_is inapposite to this case. Koons, 138 S. Ct. at
1789.
` Therefore, Hughes, Koo'ns, and Molina-Martinez `each strongly counsels th'at the Court’s
sentence was “based on” the Guidelines.
ii. Noth`thstanding the foregoing, a sentence reduction is unwarranted
Having resolved that Smith’s sentence was ‘based on’ the Sentencing Guidelines, the Court
next evaluates whether a reduction “is warranted in whole or part under the particular
circumstances of the case.” Dillon, 560 U.S. at 827; accord United States v. Butler, 130 F. Supp.
3d 317, 319-20 (D.D.C. 2015). The Court must “consider[] the factors set forth in § 3553(a)” only
if, in its discretion, it considers “such a reduction” to be “consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). And where, as here,
the Court “concludes that it would have imposed the same sentence even if the defendant had been
subject to a lower range, then the court retains discretion to deny relief.” Hughes, 138 S. Ct. at

1778.

Assuming, arguendo, that Smith’s requested reduction would be consistent with any such
policy statements, the Court finds that the § 3553(a) factors as applied to this case are fatal to his
application for relief. Specifically, the Court finds that “any pertinent policy statement issued by
the Sentencing Commission is outweighed by: (1) “the nature and circumstances of the offense;”
(2) “the need for the sentence imposed to reflect the seriousness of the offense, . . . and to provide
just punishment for the offense;” and (3) “the [amended] sentencing range established for the
applicable category of offense[.]” 18 U.S.C. §§ 3553(a)(1)-(2), (4), (5).

a. The nature and circumstances of this offense warrant a significant period of
incarceration

First, Smith distributed significant quantities of cocaine base to confidential informants on
at least four independent occasions in this District, within a span of four months. See Proffer of
Evidence, ECF No. 103 § ll 11 2. Specifically, “on or about July 12, 2008,” Smith distributed
“approximately 213 grams of crack cocaine” to such an informant; “on or about August 13, 2008,”
he distributed “approximately 62 grams of crack cocaine” to such an informant; “on or about
September 15 20018,” he distributed “approximately 62 grams of crack cocaine to such an
informant;” and finally, “on or about November 21, 2008,” he distributed “approximately 125
grams of crack cocaine” to such an informant. Ia'.

Smith then conspired to distribute an additional quantity of at least 250 grams of cocaine
base in or about autumn 2008. Ia'. § II 11 3. Finally, on or about May 12, 2009, law enforcement
officials seized 125 grams of cocaine from Smith’s automobile. Ia'. § 111[ 5.

Importantly, Smith played an instrumental role in a multi-year conspiracy, in which he
“received large amounts of crack cocaine or cocaine from certain individuals and then redistributed

it to others.” Id. § ll 11 1. Smith was not a low-level participant; indeed, the Government

represented at sentencing that he operated in the “middle rungs” of the overall conspiracy. Tr. of
Dec. 10, 2010 Sentencing at 3:06-10. Smith did not dispute this assertion.

Notwithstanding these undisputed facts, Smith urges that because this Court did not “make
any specific drug quantity calculation” at either the plea hearing or the sentencing hearing, and
because he agreed to a quantity of “at least 1.5 kilograms of cocaine base,” the “upper limit of [his]
drug quantity cannot be determined from the original offense level.” ECF No. 169, at 6. ln support
of this argument, Smith points to United States v. Wyche, where the D.C. Circuit explained in dicta
that “[i]f the original sentencing court failed to make a specific drug-quantity calculation, the
resentencing court may have to make its own quantity finding in order to determine the defendant’s
guideline range.” 741 F.3d 1284, 1293 (D.C. Cir. 2014). Smith’s reliance on this authority is
misplaced here.

Indeed, the D.C. Circuit has since revisited Wyche, explaining that Wyche is limited to its
facts. See United States v. Miller, 890 F.3d 317, 327 (D.C. Cir. 2018). In Wyche, the defendant
was responsible for “at least 500 grams of cocaine base.” Wyche, 741 F.3d at 1293. When the
defendant in Wyche was initially sentenced, “500 grams of cocaine base” triggered the highest
base offense level under the Guidelines. Id. at 1289. The Guidelines were subsequently revised
to reflect a lower sentencing range for quantities between 500 grams and 1.5 kilograms, thus
warranting a sentence reduction. See id. Here, however, Smith accepted responsibility for “1.5
kilograms but less than 4.5 kilograms of cocaine base.” ECF No. 102 11 2. The Guidelines provide
a base offense level of 32 for any quantity from “[a]t least 840 grams but less than 2.8 kilograms
of cocaine base.” U.S.S.G. § 2D1.1(c)(4).

Because this Court may consider “the amount of drugs attributable to any one codefendant

as ‘relevant conduct’ for guidelines purposes,” limited only by “the reasonably foreseeable

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transactions in furtherance of that codefendant’s ‘ j ointly undertaken criminal activity, a sentence
of 156 months’ incarceration was proper here. Wyche, 741 F.3d at 1292 (quoting United States v.
Easter, 553 F.3d 519, 523 (7th Cir. 2009)). Courts “may rely ‘on evidence of a defendant’s
relationship to and involvement with the conspiracy in order to draw permissible inferences
regarding’ the scope of his agreement to the conspiratorial conduct ‘and the foreseeability of his
coconspirators’ conduct.” Id. (quoting United States v. Thornas, 114 F.3d 228, 260 (D.C. Cir.
1997)). lt is thus not material that this Court did not articulate a specific drug quantity finding at
the time of sentencing, because it is permitted to base its sentence “‘on any ground supported in
the record.”’ Miller, 890 F.3d at 328 (quoting United States v. Taylor, 627 F.3d 674, 676 (7th Cir.
2010)).

Moreover, resentencing courts may revisit`the issue of drug quantity` only where the upper
limit of a defendant’s drug quantity cannot be determined from the original offense level. See
United States v. Kennedy, 722 F.3d 439, 443 (D.C. Cir. 2013). As discussed, this amount is
ascertainable by reviewing the record as a whole. And in this Circuit, as in several others, a §
3582(c)(2) motion “‘is not the appropriate vehicle for raising issues related to the original
sentencing,”’ because such arguments “are not cognizable under § 3582(c)(2).” Id. (quoting
United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009)).

Accordingly, the Court finds that Smith participated in a criminal enterprise whose primary
objective was to capitalize substantially on a sweeping proportion of the population in this District,
to the entire population’s detriment. This conduct warrants a significant period of incarceration
for the dual purposes of specific deterrence and retribution.

b. The sentence imposed reflects the gravity of Smith’s conduct.

Second, Smith’s current sentence of 156 months’ incarceration followed by a 60-month
post-release supervision is reasonable, in light of his conduct and criminal history. Even if, as
Smith argues, Amendment 782 “reduces [his] applicable guideline range from 151 to 188 months
. . . to` a range of 121 to 151 months,” a sentence of 156 months’ incarceration is warranted
independently. ECF No. 169, at 7. Indeed, had Smith been convicted after a trial, he would be
facing a mandatory minimum of life imprisonment for this offense. See 21 U.S.C. §§ 841(b)(1)(A),
851(b). At sentencing, defense counsel acknowledged that Smith did, in fact, avoid a potential
lifetime-sentence by his plea. See Tr. of Dec. 10, 2010, at 4:13_5:08. This statutory penalty
clearly evinces Congress’s` intent to impress upon sentencing courts the gravity of the crime of
which Smith stands convicted, in light of the individualized mitigating and exacerbating
circumstances appurtenant to the facts of this case.

The current Guidelines prescribe, but do not mandate, a period of incarceration of 151
months. See USPO Memorandum dated Jun. 30, 2017, ECF No. 162. But Smith agreed to accept
a period of incarceration of 156 months - only 5 months beyond the revised prescribed maximum
- in lieu of risking the loss of liberty for life. While the Court acknowledges that Smith has been
productive while incarcerated, having received no disciplinary infractions and having completed
his G.E.D. and substance abuse education, his good conduct while incarcerated does not outweigh
the gravity of the offense of which he stands guilty. See id. at 2.

c. There is no relevant policy statement from the Sentencing Commission to
outweigh the foregoing factors.

Third, Smith does not point to, nor does this Court find, any relevant policy statement of
the Sentencing Commission that outweighs the foregoing factors. Smith argues that a sentence
reduction is warranted here to “serve the purpose of uniformity.” ECF No. 173 at 4. But the

purpose of the Guidelines is not to divest sentencing courts entirely of their discretion to impose

sentences based upon the facts before them. The Guidelines’ purpose is to “create a comprehensive
sentencing scheme in which those who commit crimes of similar severity under similar conditions
receive similar sentences.” Hughes, 138 S. Ct. at 1776 (quoting Freeman, 564 U.S. at 533)
(emphases added). That purpose does not require this Court to impose cookie-cutter sentences
without regard to the specific circumstances of every defendant who appears before it.

Accordingly, the Court finds that a sentence reduction is not warranted, either in whole or
in part, based upon the factual circumstances peculiar to Smith’s case, and that it would have
imposed the same sentence even if he were subject to a lesser Guidelines range at the time of
sentencing.

Smith’s Motion for Summarv Judgment as a Matter of Law

On January' 23, 2017, Smith filed a p`ro se Motion for Summary Judgment as a Matter of
Law. See ECF No. 156. Smith points the Court to Blackledge v. Allison, 431 U.S. 63 (1977) as
the purported authority for this Court to grant habeas relief. ECF No. 156, at 1. Blackledge
concerned a convicted prisoner in state custody who sought a writ of habeas corpus in the U.S.
District Court for the Middle District of North Carolina, alleging that “[h]is guilty plea [to a state
crime] was induced by an unkept [sic] promise, and therefore was not the free and willing choice
of the petitioner.” Blackledge, 431 U.S. at 68. In affirming the prisoner’s request for relief, the
Supreme Court evaluated North Carolina’s then recently-enacted plea-bargaining procedures and
found that the state court did not follow its own rules of criminal procedure when it accepted his
plea agreement, and thus violated his right to procedural due process under the Fifth and Fourteenth
Amendments. Id. at 79-80.

Here, Smith stands convicted of a federal crime and is currently in federal custo'dy. He

does not challenge the sufficiency of the federal plea-bargaining process generally, nor does he

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allege specifically that his Fed. R. Crim. P. 11 plea-bargaining process was procedurally defective.
Indeed, 18 U.S.C. § 3582(c), not state law, provides the exclusive avenues through which this
Court may modify a term of imprisonment Accordingly, Blackledge is inapposite to this record,
and Smith’s Motion for Summary Judgment is in error. And as the Court has already explained,
Smith’s § 3582(0) motions will be denied because a sentence reduction is unwarranted in these
circumstances

Therefore, the Court will DENY Smith’s Motion for Summary judgment as moot.

CONCLUSION

After considering the motion, the entire record herein, and the applicable law, the Court

finds that Smith is ineligible for sentence reduction and will DENY his motions [ECF Nos 150,

156,169,173]. '

IT rs so oRDERED en this Eli§y Of september, 2018.

§ Royce C. Lamberth

Senior United States District Judge

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