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United States v. Abdullah

United States District Court, D. Rhode Island

October 10, 2019

UNITED STATES OF AMERICA
v.
KARIM ABDULLAH, Defendant.

          SENTENCING MEMORANDUM

          WILLIAM E. SMITH, CHIEF JUDGE

         Defendant Karim Abdullah moved for a reduced sentence pursuant to § 404 of the First Step Act of 2018 (“FSA” or “the Act”). Pub. L. No. 115-391, 132 Stat. 5194; Def.'s Mot. to Reduce Sent. (“Def.'s Mot.”), ECF No. 47. Section 404 of the Act provides that a district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220, 124 Stat. 2372) were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, 132 Stat. 5194 § 404(b).[1] The Government opposed Abdullah's motion, arguing that Abdullah is ineligible for relief and should be denied a reduction. See Gov't Resp. in Opp'n, ECF No. 48. The Court held hearings on June 20 and July 10, 2019 at which the parties presented argument and evidentiary support. The Court granted Defendant's motion and imposed a reduced sentence of 160 months, with 24 months on his supervised release violation, to be served consecutively in addition to a 3-year term of supervised release.[2] This sentencing memorandum explains the Court's reasoning.

         I. BACKGROUND

         On February 21, 2008, after Defendant Karim Abdullah waived his right to be indicted by a grand jury, the Government filed an information charging Abdullah with being a felon in possession of a firearm and possession with intent to distribute 5 grams or more of cocaine base. Abdullah pled guilty to the two-count information on March 6, 2008, and the Court sentenced him to 200 months' imprisonment and 5 years' supervised release as to Count I and 120 months' imprisonment and 3 years' supervised release as to Count II, to be served concurrently. The Court further sentenced Abdullah to 24 months' imprisonment for a supervised release violation (see Cr. No. 95-75-07ML) to be served consecutively to the 200 months.

         At the time Abdullah was sentenced, in March 2008, he was subject to a mandatory minimum of 5 years and a mandatory maximum of 40 years' imprisonment under Count I.[3] The Sentencing Guidelines prescribed a range of 188 months to 235 months. The Court's sentence of 200 months was a 6% increase over the low end of the Guideline range. See Probation Mem. 2, ECF No. 46.

         In his plea agreement, Abdullah stipulated to distributing 33.47 grams of cocaine base. ECF No. 14. (He was charged in the indictment with 61.11 grams of cocaine base - 33.10 grams of cocaine base and $1, 170 of cash converted to cocaine base - but he pled only to 33.47 grams of cocaine base.) If Defendant were to be resentenced today, after the passage of the Fair Sentencing Act, his Guidelines range would be 151-188 months' imprisonment, to be followed by 3 years' supervised release. He would further face a statutory maximum of twenty years' imprisonment. See Probation Mem. 2, ECF No. 46.

         II. DISCUSSION

         A. Eligibility

         Defendant Abdullah was sentenced in this Court upon conviction of a “covered offense, ” as defined in § 404(a) of the First Step Act, and accordingly, he is eligible for a sentence reduction, subject to this Court's discretion. See generally United States v. Pierre, 372 F.Supp.3d 17 (D.R.I. 2019).

         B. Scope of Consideration

         The parties agree that nothing in § 404 “shall be construed to require a court to reduce any sentence” and that courts have discretion to grant defendants relief so long as they are eligible. Pub. L. No. 115-391, 132 Stat. 5194 § 404(b), (c). Where the parties disagree is the scope of the resentencing under the FSA.

         The Government argues that the FSA, read in conjunction with 18 U.S.C. § 3582, does not authorize a plenary or de novo resentencing. See Gov't Resp. in Opp'n 11, ECF No. 48. The Government further contends that because a plenary resentencing is not authorized under the FSA, Defendant may not contest Guidelines issues already ruled upon at his original sentencing, including Defendant's career offender status. Id. at 10. Defendant counters that he does not seek a plenary or de novo resentencing. See Mem. in Resp. to Gov't Opp'n 6, ECF No. 52. Instead, Defendant asks that the Court, in exercising its discretion, take account of the fact that, were he sentenced today, Abdullah would not have been sentenced as a career offender. See Mot. for Sent. Reduction 8, ECF No. 47 (citing Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (holding that the residual clause of the Armed Career Criminal Act is unconstitutional); United States v. Rose, 896 F.3d 104 (1st Cir. 2018) (holding that Rhode Island assault and battery with a dangerous weapon does not qualify as a violent felony under the Armed Career Criminal Act)).

         This Court agrees with several other courts that have held “§ 3582(c)(1)(B) [is] the appropriate [procedural] vehicle for relief” under the FSA and that “[w]hen a defendant obtains relief under § 3582(c)(1)(B), [it] does not affect the finality of the original underlying sentence.” United States v. Sampson, 360 F.Supp.3d 168, 171 (W.D.N.Y. 2019); see also United States v. Shelton, Cr No. 3:07-329, 2019 WL 1598921, at *3 (D. S.C. Apr. 15, 2019) (“Section 404 must be read together with other existing statutes - including § 3582(c)”); United States v. Potts, No. 2:98-cr-14010, 2019 WL 1059837, at *3 (S.D. Fla. March 6, 2019) (holding that “all other determinations made at the time of [Defendant's original] sentencing must remain unchanged”). Section 3582(c)(1)(B) authorizes a sentence modification only “to the extent otherwise expressly permitted by statute.” § 3582(c)(1)(B). The pertinent statute here does not permit a full plenary resentencing or reconsideration of original sentencing determinations; the FSA merely permits a court to “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” Pub. L. No. 115-391, 132 Stat. 5194 § 404(b); see also Potts, 2019 WL 1059837 at *2; Sampson, 360 F.Supp.3d 168, 171 (“[A] full resentencing is neither required nor called for.”); accord United States v. Davis, No. 07-CR-245S (1), 2019 WL 1054554, at *2 (W.D.N.Y. Mar. 6, 2019). In other words, the Court cannot revisit Defendant's status as a career offender because such a consideration would go beyond a simple “recalculation of a defendant's Guidelines numbers . . . and a possible sentencing reduction therewith” as required by the FSA. United States v. McKinney, No. 06-20078-01, 2019 WL 2053998, at *2, (D. Kan. May 5, 2019) (quoting Davis, 2019 WL 1054554, at *2).

         In addition to the consensus that a court should not engage in a plenary or de novo resentencing under § 404, most courts agree that a re-sentencing court should consider the new statutory range along with the sentencing factors set forth in 18 U.S.C. § 3553(a), including post-sentence conduct. See, e.g., United States v. Newton, No. 5:02-CR-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); United States v. Powell, 360 F.Supp.3d 134 (N.D.N.Y. 2019); United States v. Martinez, No. 04-CR-48-20, WL 2433660, at *3 (S.D.N.Y. June 11, 2019). But see United States v. Martin, No. 03-CR-795(BMC), 2019 WL 2289850, at *3-4 (E.D.N.Y. May 29, 2019) (declining to consider post-sentence conduct and § 3553 factors and instead looking to what sentence the original sentencing judge would have imposed). The FSA makes no mention of § 3553 factors, however “it is appropriate to use that familiar framework to guide the exercise of discretion.” United States v. Rose, 379 F.Supp.3d 223, 234-35 (S.D.N.Y. 2019). The ...


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