uNITF.D st'ArEs DISTRICT Coult'l‘
ron THF. nls'rruc"r or Cot.uMBlA JAN 04 2019

Clerk. U.S. District and
Bankruptcy Courts j

 

 

UNI'I`ED STA`I`ES OF AMERICA, §
v. § Criminal No. 05-100-02 (PLF)
DAVID WILSON, i
Defenclant. §
)
OPTNION

The matter is before the Court on the w §§ motion [Dkt. No. 1593] of defendant
l)avid Wilson to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amcndment
?82 to the United States Sentencing Guideiines. Upon careful consideration ot`the parties"
written submissions, the relevant legal authorities and the relevant portions of the record, the

Court will grant the motion.l

I. BACKGROUND
‘I`his case was originally assigned to lodge Richard W. Roberts, who presided

over the trial 01` Mr. Wilson and his co-clel"endants in 2007. ln November 2001 thejury found

 

' ln connection with the pending motions, the Courl has reviewed the following

filings, including the exhibits attached thereto: the November 2?, 200'? Indictment

let. No. 1 190]; the Verdict Form [Dkt. No. 1 191]; United States` Senteneing Memorandum
[Dkt. No. 1422]; Mr. Wilson`s Sentencing Memorandun'l [Dkt. No. 1423]; the March 14, 2011
Final Presentence Investigation Report (“PSR"`) [Dl<t. No. 142?]; the March 22, 201 l Judgment
("`.ludgment") [Dkt. No. 1445]; Mr. Wilson’s §§ E Motion 1`0:‘ Reduction of`Sentenee

[Dkt. No. 1535]; Mr. Wilson`s Renewed Motion for Reduction ol`Sentence (“Mot."`)

|_I.)kt. No. 1593]; Mr. Wilson`s Status Report ("Status Report") [Dkt. No. 1616]; the May 26,
201? I’robation ()1`1`1ee Memorandum (“May 26, 201? i\/Iemorandunt") [Dl~;t. No. 1622[; the
March l l_. 201 l Sentencing 'I`ranscript (“Sentencing 'l`r."`) [Dkt. No. 1630]; United States"
Opposition to Motion for Reduction of Sentence ("Opp"n") [Dkt. No. 1633]; and Mr. Wilson’s
Reply in Supporl 01` Motion for Reduction of`Sentence ("Reply") ]Dkt. No. 1636].

Mr. Wilson guilty of two counts of aiding and abetting first-degree murder, seven counts of
distributing crack cocaine, and one count of using a communications facility in relation to a
narcotics offense. _s_e£ united states v. Bell, 795 F.3d 38, 92 (D.c. Cir. 2015).

Shortly before Mr. Wilson was sentenced, the United States Sentencing
Commission promulgated temporary emergency amendments to the Sentencing Guidelines with
an effective date of November 1, 2010. E U.S.S.G. app. C, amend. 748 (Supp. Nov. l, 2010);
75 Fed. Reg. 66188, 66188-93 (Oct. 27, 2010). Prior to the emergency amendments, 1.5
kilograms of cocaine base was the threshold between offense level 34 (“At least 500 G but less
than 1.5 KG”) and offense level 36 (“At least 1.5 KG but less than 4.5 KG”). §§ U.S.S.G.
§ 2Dl.1(c) (2010). After the emergency amendments, 2.8 kilograms of cocaine base was the
threshold between offense level 34 (“At least 840 G but less than 2.8 KG”) and offense level 36
(“At least 2.8 KG but less than 8.4 KG”). E U.S.S.G. § 2D1.1(c) (Supp. Nov. l, 2010).

Judge Roberts sentenced Mr. Wilson on March l 1, 2011, four months alter the
emergency amendments went into effect. He found Mr. Wilson responsible for “at least 1.5
kilos” of cocaine base, resulting in a base offense level of 34. § Sentencing Tr. at 13-14; Q. at
10 (“The amounts of crack attributable to all those distributions in furtherance of the agreement
exceeded 1.5 kilograms and was reasonably foreseeable to the defendant Under the 2010

guidelines, though, that would establish a base offense level of 34 not 36.”) (emphasis added);

 

§ alj United States v. Wyche, 741 F.3d 1284, 1292 (D.C. Cir. 2014) (“Under the Sentencing
Guidelines, the district court determines a defendant’s base offense level - and, ultimately, his
guideline range - by delineating his relevant conduct.”) (intemal quotation marks and citation
omitted). With a total offense level of 34 and a criminal history category of I, Mr. Wilson’s

applicable Guideline range for his drug distribution convictions was 151 to 188 months. Judge

Roberts sentenced Mr. Wilson at the top of that range to 188 months in prison for each drug
distribution count, those sentences to run concurrently _S_eg Judgment at 3. Judge Roberts also
sentenced Mr. Wilson to 48 months in prison for his communications facility conviction, that
sentence to run concurrently to the drug sentences § M. ln addition, Judge Roberts sentenced
Mr. Wilson to 360 months to life in prison under the District of Columbia Code for each murder
conviction, those sentences to run concurrently to each other and consecutively to the other
sentences w M. at 4. The D.C. Circuit affirmed Mr. Wilson’s convictions in July 2015. B
United States v. Bell, 795 F.3d at 91.

This case was reassigned to the undersigned in April 2016. On December 21,
2016, Mr. Wilson filed the instant motion - a M g motion for a sentence reduction under 18
U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines,2 Mr. Wilson later
supplemented his motion through counsel. Amendment 782 reduced by two levels the base
offense levels for certain controlled substance offenses. §§ U.S.S.G. app. C, amends. 782
(reduction), 788 (making Amendment 782 retroactive). Prior to Amendment 782, a drug
quantity of at least 840 grams but less than 2.8 kilograms of cocaine base carried an offense level
of 34; after the amendment, the same amount fell to an offense level of 32. As noted, Mr.
Wilson’s total offense level of 34 and criminal history category of 1 yielded a Guideline range of
151 to 188 months at the time of sentencing A two-level reduction to offense level 32 would
result in a revised Guideline range of 121 to 151 months. Mr. Wilson asks the Court to reduce

his sentence from 188 months to 121 months, the bottom of the revised Guideline range.

 

2 Mr. Wilson filed his original Section 3582(c)(2) motion, Docket Number 1535, in
January 2015 while his direct appeal was pending before the D.C. Circuit. In November and
December 2016, he filed two identical motions styled as renewed Section 3582(c)(2) motions,
Docket Number 1591 and Docket Number 1593. The Court shall issue its ruling based on the
motion assigned as Docket Number 1593.

ll. LEGAL STANDARD

A court may modify a defendant’s sentence if the defendant “has been sentenced
to a term of imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A court considering a Section 3582(c)(2)
motion is to engage in a limited, two-step inquiry. First, the court must determine whether the
defendant is eligible for a sentence modification To do so, the court must determine “the
amended guidelines range that would have been applicable to the defendant” had the relevant
amendment been in effect at the time of the initial sentencing United States v. Wych , 741 F.3d
at 1292 (quoting Dillon v. United States, 560 U.S. 817, 827 (2010)). Second, if the defendant is
eligible for a sentence modification, the court must consider any applicable factors under 18
U.S.C. § 3553(a) and determine whether, in its discretion, a reduction in the defendant’s sentence
is “warranted in whole or in part under the particular circumstances of the case.” United States
v. Wyche, 741 F.3d at 1292 (quoting Dillon v. United States, 560 U.S. at 827)). The court is to
consider the Section 355 3(a) factors “to the extent that they are applicable” and determine if the
sentence reduction is “consistent with applicable policy statements issued by the Sentencing

Commission.” §_ee_ 18 U.S.C. § 3582(c)(2).

III. DlSCUSSION
A. Mr. Wilson is Eligiblefor a Sentence Reduction
The Court must first determine the amended Guideline range that would have
been applicable if Amendment 782 had been in effect when Mr. Wilson was sentenced in March
2011. At sentencing, Judge Roberts found Mr. Wilson responsible for “at least 1.5 kilos” of
cocaine base, resulting in a base offense level of 34 and a Guideline range of 151 to 188 months.

E Sentencing Tr. at 13-14. Based on a drug quantity of at least 1.5 kilograms of cocaine base,

Mr. Wilson argues that Amendment 782 now puts him at an offense level of 32 and a Guideline
range of 121 to 151 months, S_ee Mot. at 3. He asks the Court to reduce his sentence from 188
months to 121 months, the bottom of the revised Guideline range. S_ee Reply at 2.

The United States responds that Judge Roberts did not make a specific
drug quantity finding at sentencing; he found only that Mr. Wilson was responsible for “at least”
1.5 kilograms of cocaine base. §§ Opp’n at l.3 The United States asks the Court to make a
new, more precise drug quantity finding in order to determine Mr. Wilson’s applicable Guideline
range. Q:_e Q. at 4. It maintains that any such factual inquiry would likely result in a finding that
Mr. Wilson was responsible for at least 2.8 kilograms of cocaine base, which would put him at
an offense level of 34 and a Guideline range of 151 to 188 months under the current Guidelines.
§ @. Mr. Wilson’s applicable Guideline range therefore would remain the same and he would
be ineligible for a sentence reduction. D id

“In order to determine the defendant’s amended guideline range for a drug-related
offense, the resentencing court must determine the drug quantity attributable to the defendant.”
United States v. Wyche, 741 'F.3d at 1293. “If 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.” ld. But the resentencing court’s
drug quantity finding “cannot be inconsistent with factual determinations made by the original
sentencing court.” D id. (citing United States v. Kennedv, 722 F.3d 43 9, 442 (D.C. Cir.

2013)).

 

3 The parties agree that at sentencing, Judge Roberts applied the amended 2010

Sentencing Guidelines, under which the threshold between offense levels 34 and 36 was 2.8
kilograms of cocaine base rather than 1.5 kilograms lt appears that Judge Roberts continued to
focus on 1.5 kilograms because that was the relevant figure when multiple co-defendants were
sentenced prior to the passage of the emergency amendments

5

Resentencing courts may revisit the issue of drug quantity only where.the upper
limit of the defendant’s drug quantity cannot be determined from the offense level assigned by
the original sentencing court. w United States v. Smith, No. 09-237-01, 2018 WL 4518025, at
*4 (D.D.C. Sept. 20, 2018) (citing United States v. Kennedv. 722 F.3d at 442-43). I-Iere, Mr.
Wilson’s drug quantity can be ascertained from the original offense level assigned by Judge
Roberts. A new drug quantity finding therefore is not necessary in this case.

The parties agree that Mr. Wilson was sentenced under the amended 2010
Sentencing Guidelines, under which the threshold between offense levels 34 and 36 was 2.8
kilograms of cocaine base rather than 1.5 kilograms Judge Roberts calculated a base offense
level of 34 based on a drug quantity of “at least” 1.5 kilograms The offense level calculated by
Judge Roberts thus necessarily “reflected a determination that [Mr. Wilson’s] responsible drug
quantity did n_ot exceed 2.8 kilograms” because any drug quantity above that amount~would have
required Judge Roberts to apply a higher offense level of 36. §_e_e_: Opp’n at 2 (emphasis in
original). In other words, by assigning a base offense level of 34 corresponding to at least 840
grams but less than 2.8 kilograms of cocaine base, Judge Roberts implicitly found that Mr.
Wilson was responsible for less than 2.8 kilograms of cocaine base, § United States v.
M, 722 F.3d at 442-43 (sentencing court “implicitly adopted” drug quantity
recommendation in presentence investigation report where it calculated an offense level
consistent with that recommendation). Under Amendment 782, that finding puts Mr. Wilson
today at an offense level of 32. The revised Guideline range therefore is 121 to 151 months,

This case does not raise the same concerns that required a new drug quantity
determination in United States v. Wyche. There, the original sentencing court found defendant

Richard Smith responsible for “at least 500 grams of cocaine base,” which triggered an offense

level of 36, the highest possible offense level at the time. §_e§ United States v. Wych , 741 F.3d
at 1293. Mr. Smith moved for a sentence reduction after the Guideline ranges for cocaine base
crimes were reduced, arguing that 500 grams of cocaine base yielded an offense level of 32. §§
§ at 1291. But by then, the Guidelines included multiple higher offense levels tied to proof of
quantities over 500 grams of cocaine base. The resentencing court therefore made a new factual
finding that Mr. Smith was responsible for more than 8.4 kilograms of cocaine base and denied
his motion for a sentence reduction. _S_e_e §

On appeal, the court of appeals affirmed the resentencing court’s authority to
make a new drug quantity finding under those circumstances w United States v. Vl’yche, 741
F.3d at 1293. As the panel majority explained, the resentencing court could not determine Mr.
Smith’s maximum drug quantity based on the offense level assigned by the original sentencing
court because, at the time of the original sentencing, Mr. Smith was at the highest possible
offense level. § § But after the Sentencing Guidelines were amended, the resentencing court
could not determine from the existing record which of multiple higher offense levels applied to a
drug quantity of “at least 500 grams” of cocaine based. § § (“[T]he 2012 district court could
not determine [Smith’s] amended guideline range on the basis of the [original sentencing court’s]
findings because the 201 1 amendment specified four different base offense levels for crimes

involving over 500 grams of cocaine base - level 32 (at least 280 grams but less than 840

grams), level 34 (at least 840 grams but less than 2.8 kilograms), level 36 (at least 2.8 kilograms
but less than 8.4 kilograms) and level 38 (8.4 kilograms or more of cocaine base) . . . .”).4

In contrast here, Judge Roberts calculated an offense level of 34, which at the
time of sentencing had an upper limit of 2.8 kilograms w U.S.S.G. § 2D1.1(c) (Supp. Nov. 1,
2010) (offense level 34 corresponds to “[a]t least 840 G but less than 2.8 KG”). The maximum
drug quantity attributable to Mr. Wilson therefore was 2.8 kilograms And that remains true
today. § United States v. Wyche, 741 F.3d at 1292-93. Finding Mr. Wilson responsible for
more than 2.8 kilograms of cocaine base, as the United States requests, would be inconsistent
with Judge Roberts’ implicit factual finding that Mr. Wilson’s drug quantity did not exceed 2.8
kilograms And as the D.C. Circuit made clear in United States v. Wyche and United States v.
M, the resentencing court’s drug quantity finding “cannot be inconsistent with factual
determinations made by the original sentencing court.” § United States v. Wy che, 741 F.3d at
1293 (citing United States v. Kennedy, 722 F.3d at 442).

Under these circumstances the Court will not re-open the issue of drug quantity.
Following Amendment 782 to the Sentencing Guidelines, a drug quantity of at least 840 grams
but less than 2.8 kilograms carries a base level offense of 32. w U.S.S.G. § 2D1.1(c). Because

Mr. Wilson is responsible for at least 1.5 kilograms but less than 2.8 kilograms of cocaine base,

 

4 At least two judges of this Court have made new drug quantity findings where, as

in United States v. Wyche, the original sentencing court did not make a specific drug quantity
finding because the drug quantity exceeded the highest possible base offense level at the time of
sentencing w, §g;, United States v. Femandez, No. 10-18-4, 2018 WL 1832317, at *1
(D.D.C. Apr. 16, 2018), M, No. 18-3028, 2018 WL 5919236 (D.C. Cir. Oct. 19, 2018); United
States v. Rivera-Niebla, No. 06-07-2, 2015 WL 9294086 (D.D.C. Dec. 21 , 2015); United States
v. Harris, No. 89-0036-2, 2012 WL 12932292, at *4-5 (D.D.C. May 21, 2012); United States v.
Smith, No. 89-0036-3, 2012 WL 12844610, at *2, *4 (D.D.C. May 21, 2012). _S_e_e §§Q United
States v. Miller, 890 F.3d 317, 327 (D.C. Cir. 2018),

8

 

 

his revised offense level is 32 and his applicable Guideline range is 121 to 151 months He

therefore is eligible for a sentence modification and a reduction in his sentence.

B. A Sentence Reduction is Warranted

When a defendant is eligible for a sentence reduction, courts have discretion to
determine whether and to what extent such a reduction is warranted United States v. Dillon, 560
U.S. at 827. In making that discretionary determination, courts are to consider the factors
outlined in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” w 18 U.S.C.
§ 3582(a)(2); Dillon v. United States, 580 U.S. at 827-28. Those factors include, m B, the
nature and circumstances of the offense and the history and characteristics of the defendant, the
sentencing range established by the Guidelines for the applicable category of the offense, and the
need to avoid unwarranted sentencing disparities _S_Y 18 U.S.C. § 3553(a). The relevant
Guidelines policy statement provides that courts must consider “the nature and seriousness of the
danger to any person or the community that may be posed by a reduction in the defendant’s term
of imprisonment.” M U.S.S.G. § 1B1.10 cmt. n.l(B)(ii). The D.C. Circuit has held that courts
may also consider the defendant’s post-sentencing conduct. _S_e§ United States v. Galaviz, 892
F.3d 378, 381 (D.C. Cir. 2018) (citing U.S.S.G. § lBl.lO cmt. n.l(B)(iii)); g alj United States
M, 292 F. Supp. 3d 1, 3 (D.D.C. 2017); United States v. Butler, 130 F. Supp. 3d 317, 320,
323 (D.D.C. 2015).5

Mr. Wilson asks the .Court to reduce his sentence to 121 months in prison -the

bottom of the revised Guideline range - based on evidence of his post-sentencing rehabilitation.

 

5 Section 3582(c)(2) does not permit courts to reopen a previously-imposed

sentence based solely on evidence of post-sentencing rehabilitation. § United States v.
Clipper, 179 F. Supp. 3d 110, l 15-16 (D.D.C. 2016); United States v. Moore, 930 F. Supp. 2d
141, 145 n.3 (D.D.C. 2013).

I-le notes that he has not received any disciplinary infractions while in the custody of the Bureau
of Prisons. E Reply at 6. l-le also notes that he has obtained his GED while incarcerated §
§6 The United States responds that a sentence reduction is not warranted due to l\/lrj Wilson’s
“significant, prolonged, and devastating” offense conduct. B Opp’n at ll. The United States
points to the facts that Mr. Wilson was involved in a long-running, serious drug conspiracy to
distribute crack cocaine in the Congress Park neighborhood; that his conduct involved repeated
acts of distributing drugs on the streets of the District of Columbia; and that he was found
responsible for aiding and abetting two murders g § The United States further notes that
Judge Roberts sentenced Mr. Wilson at the top of the applicable Guideline range for his drug
distribution convictions w i_d. at 12-13.

ln view of all of these circumstances the factors listed in Section 3553(a), and the
applicable Sentencing Commission policy statements the Court will grant Mr. Wilson’s motion '
for a sentence reduction and reduce his term of imprisonment from 188 months to 130 months
As to the nature and circumstances of the offense and the history and characteristics of the
defendant, Mr. Wilson’s active involvement in a violent drug distribution conspiracy over a
ten-year period weighs against a significant sentence reduction. His conduct while incarcerated,
however, weighs in favor of a sentence at the middle or low end of the revised Guideline range.
w, §§ United States v. Cook, 292 F. Supp. 2d at 4. Mr. Wilson has not received a single
disciplinary infraction in the seven years since he was sentenced, §§ Reply at 6. Furthermore,

in addition to obtaining his GED, Mr. Wilson has completed courses in leadership, parenting,

 

6 Mr. Wilson also argues that a sentence reduction is warranted based on the

prejudicial errors in his original trial. w Mot. at 5-7. The Court will not consider this factor at
this stage, as the merits of those issues are briefed in a separate motion to vacate now pending
before this Court. E Mr. Wilson’s Motion to Vacate Conviction Pursuant to 28 U.S.C. § 2255
[Dkt. No. 1637].

10

effective communication, and drug education while incarcerated B Mot. at 4-10. On balance,
and in view of the sentences imposed on Mr. Wilson’s co-defendants, the Court will modify Mr.

Wilson’s sentence under 18 U.S.C. § 3582(c)(2) and reduce his sentence to 130 months

lV. CONCLUSION
For the reasons set forth in this Opinion, the Court will grant Mr. Wilson’s motion
[Dkt. No. 1593] for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and impose a
sentence of 130 months on the narcotics-related offenses The sentences of 360 months for each
of the two murder convictions remain unchanged An Order effectuating that sentence will issue

this same day.

SO ORDERED.

OM Z/j:¢-~

PAUL L. FRIEDMAN
United States District Judge

DATE:_ ¢\-(\\‘l

ll

