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United States v. Lewis

United States District Court, D. New Mexico

April 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JABSIE DWAYNE LEWIS, Defendant.

          John C. Anderson Paul H. Spiers Adam S. Rowley Attorneys for the Plaintiff

          Kari Converse Monnica Lynn Barreras Law Office of Monnica L. Barreras, LLC Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Emergency Motion to Reduce Sentence Pursuant to the First Step Act of 2018 Immediate Release Eligible, filed February 11, 2019 (Doc. 153)(“Motion”). The primary issues are: (i) whether, pursuant to section 404 of the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018)(“First Step Act”), Defendant Jabsie Dwayne Lewis is eligible for a sentence reduction; and (ii) whether, considering the 18 U.S.C. § 3553(a) factors, the Court should reduce Lewis' term of imprisonment from 188 months to 151 months, resulting in his immediate release. The Court concludes that (i) Lewis is eligible for a sentence reduction, because he meets the First Step Act's eligibility requirements, and (ii) considering the 18 U.S.C. § 3553(a) factors and Lewis' amended United States Sentencing Guidelines (“U.S.S.G.”) range pursuant to the First Step Act, the Court will not reduce Lewis' term of imprisonment from 188 months. The Court denies the Motion.

         FACTUAL BACKGROUND

         The Court takes the facts from the Presentence Investigation Report, filed April 10, 2019 (Doc. 169)(“PSR”). No. one has objected to the PSR's recitation of the facts or requested an evidentiary hearing to present more facts; the PSR's facts thus will serve as the Court's findings of fact for purposes of this sentencing.

         Lewis was born in Albuquerque, New Mexico, to Gregory Adolph and Jamesetta Lewis, whose relationship ended because of their mutual incarcerations. See PSR ¶ 70, at 32. Throughout Lewis' childhood, his parents struggled with drug and alcohol addiction, “and were in and out of prison, ” and consequently, Lewis' maternal and paternal grandmothers, both diabetic and mobile only with the assistance of walkers, primarily raised Lewis. PSR ¶ 71, at 32. Lewis has three siblings and five paternal half-siblings, but was not in contact with most of them at the time the PSR was written. See PSR ¶¶ 72-74, at 32-33. Lewis had nine children at the time the PSR was written, and some have lived with him for extended time periods. See PSR ¶¶ 77-84, at 34-36. During the presentence investigation, Lewis' grandmother “expressed her concern and support” for Lewis, “indicated he has always been good to her, ” and stated that he “has a good heart and is a good father.” PSR ¶ 75, at 34. Although Lewis has lived for most of his life in Albuquerque, he has lived for short periods in Dallas, Texas; Houston, Texas; Beaumont, Texas; and Atlanta, Georgia. See PSR ¶ 76, at 34.

         Regarding Lewis' physical condition, the PSR reports that he suffered multiple gunshot wounds, but was in good health at the time the PSR was written, although he suffered from seasonal allergies for which he was not prescribed any medication. See PSR ¶¶ 86-87, at 36. The PSR indicates that Lewis “may have contracted a sexually transmitted disease, ” and has previously reported a toothache and a pork allergy. See PSR ¶ 87, at 36-37. Lewis “denied any . . . mental health issues” at the time the PSR was written, but reported meeting with a prison psychologist during one of his periods of incarceration, and Lewis stated that his meetings with the psychologist “helped.” PSR ¶ 88, at 37. The PSR reports that, on December 19, 2007, Lewis “underwent a mental health evaluation and all results were normal.” PSR ¶ 88, at 37.

         Regarding Lewis' history with substance abuse, the PSR reports that Lewis first consumed alcohol at age 14 -- at the time the PSR was written, Lewis was 30 years old -- and last consumed alcohol “a few months prior to his arrest for the instant offense.” PSR ¶ 89, at 37. Lewis “first smoked marijuana at age 13 and by age 16, he was smoking marijuana on a daily basis, ” continuing “up until his arrest for the instant offense.” PSR ¶ 90, at 37. Lewis “first ingested powder cocaine in 1997, ” used it “every weekend until 2000, ” and “denied any recent powder cocaine use.” PSR ¶ 91, at 37. In 1998, the Second Judicial District Court in Albuquerque, New Mexico, referred Lewis to Drug Court, but after three months in the program, Lewis was terminated because of noncompliance. See PSR ¶ 95, at 38. Lewis “first used hallucinogenic mushrooms in 1998, ” explaining that “he was in drug court and was drug tested on a regular basis, ” so he used hallucinogenic mushrooms because he was never tested for them. PSR ¶ 92, at 37. Lewis first smoked cocaine base[1] in 2001 and continued “up until his arrest for the instant offense, ” reporting that, “if I had the money, I was getting high.” PSR ¶ 93, at 37. Lewis tried ecstasy for the first time in 2006, and used it “whenever he was able to get it, ” because he “was not tested for ecstasy while on state probation/parole.” PSR ¶ 94, at 38. Lewis “advised that while on state probation/parole, he was required to attend substance abuse counseling, ” but the United States Probation Office (“USPO”) could not locate records confirming whether he attended. PSR ¶ 95, at 38.

         Regarding education and vocational skills, the PSR reports that Lewis dropped out of high school in eleventh grade, at which time he had “earned 9.5 credits and his accumulative [sic] grade point average was 1.131. His class rank was 519 out of 616.” PSR ¶ 96, at 38. Lewis completed his General Educational Development (“GED”) in 2000, while incarcerated at the Penitentiary of New Mexico in Santa Fe, New Mexico. See PSR ¶ 97, at 38. Lewis reported no vocational skills or specialized training, but stated that, every time he gets out of jail, he works for Elite Auto Detail (formerly Details on Wheels) in Albuquerque. See PSR ¶¶ 97-99, at 38. The PSR also described other short-term or part-time jobs that Lewis has held, although the USPO could not locate employment records to corroborate that information. See PSR ¶¶ 100-02, at 39. Lewis reported no financial assets and only one liability, an unpaid telephone bill. See PSR ¶ 104, at 39.

         Lewis had multiple arrests, which did not enter into his criminal history category calculation, for Simultaneous Possession of Drugs and Firearms, Possession of a Controlled Substance with Intent to Deliver, Possession of Drug Paraphernalia, Disorderly Conduct, Possession of Marijuana (less than 0.01 ounce), Eluding a Police Officer (vehicle), Distribution of a Controlled Substance (First Offense), Possession of a Controlled Substance, and Possession of a Firearm by Felon. See PSR ¶¶ 55-58, at 28-30. The PSR also details Lewis' other criminal conduct, not entered into his criminal history calculation:

Description of Event

Date Reported

Family fighting suspect

January 16, 1998

Vandalism suspect

August 14, 1998

Disturbance suspect

May 22, 1999

Vandalism suspect

September 19, 1999

Aggravated battery suspect

October 31, 1999

Family fighting suspect

November 3, 2005

Aggravated battery suspect

July 15, 2007

         See PSR ¶¶ 59-65, at 30. The PSR also states that:

66. Records from Bernalillo County Metropolitan Court in Albuquerque, New Mexico indicate that from 1997 to 2007, the defendant received 14 citations for various traffic related matters. The majority of the charges included No. Drivers License, No. Insurance, No. Registration, No. Seatbelt, Speeding, and Driving While License Suspended. On each occasion, the defendant was either fined and/or sentenced to time served. It is noted that in 11 of the cases, the defendant failed to appear in court and bench warrants were issued for his arrest.
67. The defendant reported prior involvement with the Kirk Town Piru gang. He advised he has not been affiliated with the gang since 2000.

PSR ¶¶ 66-67, at 31. The PSR detailed over twenty pages of Lewis' lengthy criminal history. See PSR ¶¶ 35-68, at 11-31. Lewis has several prior misdemeanor convictions, also not included in his criminal history calculation. See PSR ¶¶ 35-68, at 11-31. Lewis has multiple driving-related misdemeanor convictions -- for No. Headlights, No. Drivers [sic] License, Driving While License Suspended, and Reckless Driving. See PSR ¶¶ 43, 47, 50, at 19, 23, 25. Lewis has multiple prior misdemeanor convictions related to evading law enforcement and not complying with his terms of supervised release -- specifically, for Resist, Obstruct, or Evade Officer; Failure to Pay Fines (two convictions); Failure to Identify; Failure to Appear (four convictions); and Eluding or Evading a Police Officer (on foot). See PSR ¶¶ 37-38, 40, 43, 46, 48, 50-51, at 13-15, 19, 23-26. Lewis has one drug-related misdemeanor for Possession of Marijuana (less than one ounce). See PSR ¶ 44, at 20. Lewis' other reported misdemeanor convictions are for Battery Against Household Member, Negligent Use of a Deadly Weapon, Criminal Trespass, Criminal Damage to Property ($1000 or less), and Public Nuisance. See PSR ¶¶ 37, 39-40, 42, 44, at 13-15, 18, 20.

         Lewis has a prior fourth-degree felony drug conviction for Possession of a Controlled Substance. See PSR ¶ 36, at 11. Lewis' other fourth-degree felony convictions are for Shooting at a Dwelling or Occupied Building (No Injury), Conspiracy to Commit Shooting at a Dwelling or Occupied Building (No Injury), Aggravated Assault (Deadly Weapon), False Imprisonment, and Possession of a Firearm or Destructive Device by a Felon. See PSR ¶¶ 41-42, 45, 49, at 16, 18, 20, 24. Last, Lewis has a third-degree felony conviction for Robbery. See PSR ¶ 45, at 20. The PSR also details Lewis' history with supervised release -- other than the violations for which he was convicted. Some of the events in the table below may correspond to the same violation, which was reported multiple times without resolution:

Description of Event

Date Reported

Failure to appear (arraignment hearing)

July 10, 1998

Terminated from Drug Court program because of non-compliance

October 6, 1998

Failure to pay fines

November 2, 1998

Failure to pay fines

November 9, 1998

Failure to appear

December 3, 1998

Failure to pay fines

December 21, 1998

Failure to appear

January 28, 1999

Failure to pay fines

February 3, 1999

Probation revoked

February 10, 1999

Failure to appear

February 11, 1999

Failure to appear

March 3, 1999

Contempt of court

June 24, 1999

Failure to pay fines

September 10, 1999

Contempt of court

October 13, 1999

Failure to appear (sentencing)

October 22, 1999

Failure to appear

October 25, 1999

Failure to appear (sentencing)

November 4, 1999

Failure to appear (sentencing)

November 23, 1999

Failure to appear

May 21, 2001

Unspecified probation violation (no action)

January 16, 2004

Unspecified probation violation (no action)

January 21, 2004

Probation revoked

February 4, 2004

Unspecified probation violation (no action)

February 26, 2004

Parole revoked

July 21, 2004

Probation revoked

August 18, 2004

Unsatisfactory discharge from probation

September 24, 2005

Failure to pay fines

August 18, 2006

Failure to attend defensive driving school

August 28, 2006

Failure to pay fines (second notification)

September 28, 2006

Failure to attend defensive driving school (second notification)

October 2, 2006

Failure to attend defensive driving school (third notification)

December 27, 2006

Failure to appear

March 1, 2007

Failure to appear

May 24, 2007

Failure to attend defensive driving school (fourth notification)

June 4, 2007

Absconded from supervision

July 13, 2007

Parole and probation revoked

September 19, 2007

         See PSR ¶¶ 35-68, at 11-31. The PSR also reports that Lewis had a pending misdemeanor charge for Battery -- Domestic Violence, for which he was arrested on June 20, 2007, and for which he failed to appear on August 17, 2007, and on January 18, 2008. See PSR ¶ 68, at 31.

         The PSR provides the following information regarding the offense conduct:

8. The following information was obtained through investigative materials prepared by the Albuquerque, New Mexico Police Department (APD) and the Bureau of Alcohol, Tobacco, and Firearms (ATF), as contained in the Assistant United States Attorney's discovery material.
9. On September 6, 2007, Tanya Swanson called the APD emergency dispatch (911) and reported her estranged husband, Jabsie Dwayne Lewis, was in her home and had an outstanding felony warrant for his arrest. Ms. Swanson also stated she and the defendant were in a domestic dispute on September 5, 2007. She advised the defendant was currently asleep in her living room and she was afraid that when she woke up, he would batter her again. Ms. Swanson also stated the defendant was possibly armed.
10. Four APD officers responded to Ms. Swanson's residence and were let inside by Cheryl Polnaszek, who was staying in the home. Ms. Polnaszek led officers into the living room and pointed out two male individuals, later identified as the defendant and Ahmad Williams. It is noted Williams is the defendant's cousin. The officers woke them up and based on the information the defendant could be armed, both the defendant and Williams were handcuffed for officer safety. An immediate search of the area near Williams resulted in no weapons or illegal contraband. However, during a personal search of Williams, a plastic bag containing suspected cocaine base (“crack cocaine”) was located in his pocket. The suspected cocaine base later field tested positive and weighed 5.5 gross grams. Williams was arrested and transported to the police station.
11. During an immediate search of the area near the defendant, officers observed the handle of a firearm sticking out from underneath the couch where the defendant had been sleeping. The firearm was within reach of the defendant. The firearm was secured and determined to be a fully loaded (six rounds of ammunition) Hermann Weihrauch .357 Revolver, Serial No. 105646. In addition, on top of the couch, directly underneath where the defendant had been sleeping, officers located a plastic bag containing suspected cocaine, a plastic bag containing suspected cocaine base, and a plastic bag containing suspected marijuana. The suspected substances located on the couch later field tested positive for cocaine, cocaine base, and marijuana. The cocaine weighed 3.5 gross grams; the cocaine base weighed 10.3 gross grams; and the marijuana weighed 3.1 gross grams. During a personal search of the defendant, a plastic bag containing suspected cocaine base was located in his pants pocket. The suspected cocaine base located in his pants pocket later field tested positive and weighed 23.2 gross grams. The defendant was arrested and transported to the police station. At the time of his arrest, it was determined the defendant had an outstanding felony arrest warrant for violating probation/parole out of Second Judicial District Court in Albuquerque, No. D-202-CR-200601339.
12. After both the defendant and Williams were arrested, the officers contacted an APD detective, who responded to the scene. At the residence, the detective interviewed the defendant's estranged wife, Tanya Swanson. According to Ms. Swanson, in September 2007, the defendant pulled her from her vehicle by her hair. He then took the 2007 Mercury Sports Utility Vehicle without her permission. Ms. Swanson stated she reported the incident to the police and was told to call back if the defendant returned. She informed the defendant does not live with her, but said later that evening, he and Williams returned to the house, as the keys to the house were on the key chain to her car. After the defendant and Williams fell asleep, Ms. Swanson called the police. Ms. Swanson verbally consented to a search of the vehicle, which revealed no illegal contraband.
13. At the police station, the detective met with the defendant. The defendant was read his Miranda rights and agreed to answer questions. He advised the .357 Revolver was not his, but noted he has a .45 handgun. He also stated his “DNA” (deoxyribonucleic acid) would be found on the firearm, as he “handled” it a “day or two ago.” The defendant further admitted that when he handled the .357 Revolver, he opened it, looked into the cylinder, and saw that it was loaded. He was unsure if the firearm was still loaded at the time of his arrest. When questioned about the illegal narcotics found on the couch, the defendant admitted they belonged to him. He advised the cocaine and marijuana were for “personal use, ” whereas, he sold the cocaine base to “make some money.”
14. The detective then met with Williams, who also agreed to answer questions. Williams admitted to being in possession of cocaine base. He also stated the .357 Revolver, which was located underneath the couch, was his. Williams stated he placed the firearm underneath the couch along with “crack cocaine.” However, when asked if his DNA would be located on the firearm, Williams stated he had never touched the firearm. Further, there was no cocaine base located underneath the couch. In addition, according to the responding officers, as the defendant and Williams were being placed in separate police cars, the defendant was observed “mouthing” to Williams, “tell them the gun is yours.” No. court records for Williams regarding this arrest could be located. Therefore, it appears he was never formally charged.
15. After the interviews, a record check of the defendant was completed and it was determined the defendant had several felony convictions, including three crimes of violence. On August 23, 1999, the defendant pled guilty to Count 1, Shooting at a Dwelling or Occupied Building (No Injury)(4th Degree Felony), and Count 2, Conspiracy to Commit Shooting at a Dwelling or Occupied Building (No Injury)(4th Degree Felony), in Second Judicial District Court, No. D-202-CR-9803778. On August 23, 1999, the defendant pled guilty to Aggravated Assault with a Deadly Weapon (4th Degree Felony) in Second Judicial District Court, No. D-202-CR-9902789. On August 23, 1999, the defendant pled guilty to False Imprisonment (4th Degree Felony) and Robbery (3rd Degree Felony) in the Second Judicial District Court, No. D-202-CR-9900633.
16. Due to his prior felony convictions, the defendant was prohibited from possessing any firearm. Based on this information, the APD detective contacted the ATF task force agent regarding the defendant's arrest and the agent initiated an investigation into the matter. After reviewing the evidence against the defendant and confirming he was a convicted felon, the case was accepted by the ATF for federal prosecution. On September 17, 2007, the ATF agent traveled to the APD Evidence Section and examined the Hermann Weihrauch .357 Revolver, Serial No. 105646, which appeared to be a functional firearm. An examination of the six rounds of ammunition located in the firearm was also conducted and they were identified as two rounds of Federal .357 magnum ammunition and four rounds of Remington-Peters .357 ammunition. On November 26, 2007, a trace of the firearm and ammunition was completed. It was determined the firearm and ammunition were manufactured outside of New Mexico and therefore were shipped and transported in interstate commerce. The firearm had not been reported stolen.
17. The cocaine and cocaine base were sent to the APD Metropolitan Forensic Science Center Crime Laboratory in Albuquerque, New Mexico for analysis. Due to the small amount of marijuana seized (3.1 gross grams), it was not sent to the laboratory. According to the laboratory report dated June 11, 2008, the cocaine weighed 2.40 net grams and the cocaine base weighed 25.06 net grams.
18. On September 27, 2007, a Criminal Complaint was filed in the United States District Court, District of New Mexico. It is noted the defendant has been in state custody in No. D-202-CR-200601339 since September 6, 2007. He was released from state custody on December 18, 2007, and subsequently transferred into federal custody.
19. In summary, on September 6, 2007, the defendant was found in possession of 3.1 grams of marijuana, 2.40 net grams of cocaine, and 25.06 net grams of cocaine base as well as a fully loaded (six rounds of ammunition) Hermann Weihrauch .357 Revolver, Serial No. 105646. Based on the information available, including the case agent's assessment, there is no evidence the defendant was working under the direction of another or directing others. As previously noted, the defendant committed the instant offense subsequent to three prior felony convictions for crimes of violence.

PSR ¶¶ 8-19, at 6-8. In the Plea Agreement, Lewis agreed that the Court may rely on the PSR's facts to determine his sentence. See Plea Agreement ¶ 9, at 5, filed November 3, 2009 (Doc. 75).[2]

         1. The Defendant's Sentencing Memorandum.

         Lewis filed Defendant Jabsie Lewis' Sentencing Memorandum and Objections to the Presentence Report, filed April 5, 2010 (Doc. 90)(“Lewis Memo.”). In the Lewis Memo., Lewis requested that the Honorable C. LeRoy Hansen, then-Senior United States District Judge for the United States District Court of the District of New Mexico, impose a sentence of less than 57 months, permit him to serve his time at a minimum-security facility close to Beaumont, Texas, and to participate in drug treatment, namely, the Federal Bureau of Prisons (“BOP”)'s 500-hour drug treatment program. See Lewis Memo. at 1. Although Lewis acknowledged that his Plea Agreement precluded him from arguing for downward consideration, he presented facts to support his argument that he was not a career offender. See Lewis Memo. at 3. Lewis objected that, although he was eighteen years old at the time of the underlying offense, and the offense is a felony controlled-substance offense, thereby satisfying the first two elements of United States Sentencing Guidelines Manual (U.S. Sentencing Comm'n 2009)(“U.S.S.G.”)'s[3] § 4B1.1(a)'s career offender definition, [4] he did not satisfy the definition's third element. See Lewis Memo. at 3-4. Lewis contended that he did not satisfy the third element of the Guidelines' career offender definition, because he did not have two prior felonies, as U.S.S.G. § 4A1.2(a)(1) and (2) define prior felonies, of a crime of violence or a controlled substance offense. See Lewis Memo. at 4. Lewis argued the two prior sentences that the USPO uses in its Pre-Sentence Investigation Report -- Form 13 (“Form 13”) to qualify Lewis as a career offender did not satisfy U.S.S.G. § 4A.12(a)(2)'s prerequisites, because there is no evidence of an intervening arrest separating the two sentences, and the sentences were imposed on the same day. See Lewis Memo. at 5. Lewis requested, accordingly, that Judge Hansen reassess his criminal history and assign him an offense level of 21, minus 3 levels for acceptance of responsibility, resulting in an offense level of 18, with a criminal history of VI, corresponding to a Guidelines range of 57 to 71 months. See Lewis Memo. at 5-6. Lewis requested that Judge Hansen sentence him at the low end of the range for a total imprisonment of 57 months. See Lewis Memo. at 6.

         Lewis next addressed the 18 U.S.C. § 3553(a) factors in turn, beginning with his history and characteristics. See Lewis Memo. at 7. Lewis stated that he was born in Albuquerque, New Mexico, to Adolph and Lewis, “whose relationship ended due to their mutual incarcerations.” Lewis Memo. at 7. Lewis contended that throughout his childhood, his parents struggled with drug and alcohol addiction, “and were in and out of prison, ” and that, consequently, Lewis' maternal and paternal grandmothers, both diabetic and “mobile only with the assistance of walkers, ” “primarily” raised Lewis. Lewis Memo. at 7. Lewis reported that he had three siblings and five paternal half-siblings, but that he was not in contact with most of them. See Lewis Memo. at 7. Lewis reported that he had nine children and that some had lived with him for extended time periods. See Lewis Memo. at 7.

         Lewis argued that Judge Hansen should consider the circumstances surrounding the August 23, 1999, plea and disposition agreement into which he entered. See Lewis Memo. at 8. Lewis contended that he was nineteen years old when he entered into the plea, and that Mr. Drew Neal represented him. See Lewis Memo. at 8. Lewis contended that the Supreme Court of New Mexico later suspended Mr. Neal from the practice of law because of drug and alcohol abuse, and later disbarred Mr. Neal. See Lewis Memo. at 8 (citing In re Neal, 2001-NMSC-007, 20 P.3d 121; In re Neal, 2003-NMSC-032, 81 P.3d 47). Lewis contended that Mr. Neal provided ineffective assistance, because Mr. Neal was “rarely present for Mr. Lewis' appearances before various state district court judges, ” “never met with Mr. Lewis nor presented to him nor explained to him the state's consolidated plea offer, ” and what Mr. Neal explained “about the potential sentence was incorrect.” Lewis Memo. at 8. Lewis contended that, based on Mr. Neal's ineffective assistance, Lewis intended to apply in state court to have his 1999 plea vacated. See Lewis Memo. at 8. If he ultimately prevailed in state court, Lewis requested that Judge Hansen “consider reopening the sentencing of this case pursuant to 28 U.S.C.S. § 2255.” Lewis Memo. at 8. “In the meantime, Lewis respectfully request[ed] that [Judge Hansen] take both his upbringing and his 1999 experience with the legal counsel into consideration when contemplating his sentence.” Lewis Memo. at 8.

         Regarding the nature and circumstances of the offense, Lewis noted that he

pled guilty to Possession with Intent to Distribute More Than Five Grams of a Mixture and Substance Containing Cocaine Base, contrary to 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(iii), which is a Class B Felony and carries up to ten (10) years of imprisonment, according to the plea agreement.

         Lewis Memo. at 9. Lewis contended that he provided the United States with information, but that he “has subsequently been informed” that he will receive no consideration for his cooperation. Lewis Memo. at 9. Lewis requested that Judge Hansen nevertheless take his willingness to cooperate and his cooperation into consideration at sentencing. See Lewis Memo. at 9. Regarding the need for the sentence imposed, Lewis argued that his is a situation that the Sentencing Commission did not consider in formulating the Guidelines, because the Career Offender Table in U.S.S.G. § 4B1.1(c)(3) counseled that, without a reduction, he faced a sentencing range between 360 months and life, and with a 3-level reduction, he faced a range between 262 and 327 months. See Lewis Memo. at 10. Lewis argued that, instead, Judge Hansen should sentence him at 57 months, “less than one third of the career offender calculation.” Lewis Memo. at 10. Last, Lewis requested that Judge Hansen consider the crack/cocaine sentencing disparity and, based on Kimbrough v. United States, 552 U.S. 85 (2007)(“Kimbrough”), [5] correct that disparity by exercising its discretion to assign him a lower sentence than the Guidelines suggested. See Lewis Memo. at 12.

         2. The Addendum.

         The USPO prepared an Addendum to the Presentence Report (dated April 7, 2010), filed April 10, 2019 (Doc. 170)(“Addendum”). In the Addendum, the USPO responded to the objection Lewis raised in the Lewis Memo. regarding his qualification as a career offender. See Addendum at 1-2. The USPO responded:

The United States Probation Office maintains its position the defendant qualifies as a Career Offender, pursuant to U.S.S.G. § 4B1.1, as the defendant was at least 18 years old at the time of the instant offense, the instant offense is a qualifying felony offense, and he has at least two prior qualifying felony convictions as detailed below.
(1) On August 23, 1999, the defendant pled guilty to Aggravated Assault with a Deadly Weapon (4th Degree Felony) in the Second Judicial District Court in Albuquerque, New Mexico, No. D-202-CR-9902789. Court records indicate the defendant committed the offense on December 12, 1998 and records from the National Crime Information Center indicate he was arrested for the offense on that same date at the New Mexico Corrections Department, Probation/Parole Division, Region Two Office in Albuquerque.
(2) On August 23, 1999, the defendant pled guilty to Count 2, False Imprisonment (4th Degree Felony), and Count 3, Robbery (3rd Degree Felony) in the Second Judicial District Court, No. D-202-CR-9900633. Court records indicate the defendant committed the offense on December 30, 1998 and Albuquerque Police Department records indicate he was arrested for the offense on February 23, 1999.
Further, it is noted the defendant has a third qualifying felony crime of violence conviction. On August 23, 1999, the defendant pled guilty to Shooting at a Dwelling or Occupied Building (No Injury)(4th Degree Felony) and Conspiracy to Commit Shooting at a Dwelling or Occupied Building (No Injury)(4th Degree Felony) in Second Judicial District Court, No. D-202-CR-9803778. Court records indicate the defendant committed the offense on September 17, 1998 and Albuquerque Police Department records indicate he was arrested for the offense on October 13, 1998.
Based on the above listed information, it appears the defendant qualifies as a career offender and therefore, based on a total offense level of 31 and a criminal history category of VI, the guideline imprisonment range is 188 to 235 months.

         Addendum at 1-2.

         3. The United States' Sentencing Memorandum.

         The United States asserted that Lewis filed the Lewis Memo. despite his plea agreement, which precluded him from seeking a downward variance. See United States' Sealed Sentencing Memorandum and Response to Defendant's Objections to the Presentence Report, filed April 9, 2010 (Doc. 91)(“United States Memo.”). The United States recommended, pursuant to the plea agreement and considering Lewis' status as a career offender, that the court impose a sentence at the low end of Lewis' applicable Guidelines range of 188 months imprisonment, followed by three years of supervised release and a $100.00 special penalty assessment. See United States Memo. at 4.

         The United States next argued that Lewis is a career offender, because of his “multiple prior convictions of crimes of violence or controlled substances.” United States Memo. at 4. The United States averred that the USPO confirmed Lewis' criminal history in the process of preparing the Form 13 and that, at the time of the offense for which Lewis was sentenced, he had the following prior convictions:

1. Shooting at a Dwelling or Occupied Building (No Injury), a 4th Degree Felony, in the Second Judicial District Court, Cause No. D-202-CR-9802246;
2. Aggravated Assault With a Deadly Weapon, a 4th Degree Felony, in the Second Judicial District Court, No. D-202-CR-9902789;
3. False Imprisonment, a 4th Degree Felony, and Robbery, a 3rd Degree Felony, in the Second Judicial District Court, No. D-202-CR-9902789; and
4. Possession of a Controlled Substance, a 4th Degree Felony, in the Second Judicial District Court, No. D-202-CR-9602246.

         United States Memo. at 5. The United States averred that Lewis' attorney confirmed his criminal history and, pursuant to the plea agreement, Lewis admitted his career offender status, acknowledging his prior convictions for Aggravated Assault With a Deadly Weapon, False Imprisonment, and Possession of a Controlled Substance. See United States Memo. at 5. The United States contended that none of the prior offenses in the list above were related, because intervening arrests separated them. See United States Memo. at 6.

According to the presentence report and the addendum to the presentence report, the Defendant was arrested for Possession of Controlled Substances on October 20, 1997, Shooting at A Dwelling on October 13, 1998, Aggravated Assault (Deadly Weapon) on December 12, 1998 and False Imprisonment on February 23, 1999. The dates of each arrests [sic] suggests these prior offenses are not related because the offense was separated by an intervening arrest.

         United States Memo. at 5-6 (citing U.S.S.G. § 4A1.2(a)(2)). The United States averred that the Aggravated Assault (Deadly Weapon) and Shooting at a Dwelling offenses qualified as crimes of violence[6] under the residual clause, [7] the Aggravated Assault (Deadly Weapon) qualified as a crime of violence also because it had as an element the use of force, and the False Imprisonment conviction qualified as a crime of violence under the residual clause.[8] See United States Memo. at 6 n.2 (citing United States v. Zamora, 222 F.3d 756, 763-65 (10th Cir. 2000)). The United States acknowledged that, although the Second Judicial District Court sentenced Lewis for all four prior convictions on the same date, August 23, 1999, “each conviction at issue retained a separate district court case number which suggests unrelated sentences.” United States Memo. at 6.

         The United States next addressed the 18 U.S.C. § 3553(a) factors in turn, beginning with the need to reflect the offense's seriousness, promote respect for the law, and provide just punishment for the offense. See United States Memo. at 7. The United States averred that Lewis possessed multiple cocaine bundles, “well beyond 5 grams, ” which he intended to sell to make money, that Lewis had a long history of drug use and several prior violent crime offenses, that Lewis had a gun “available to use for protection in committing this crime, ” and that the federal offense, Possession With Intent to Distribute More than 5 Grams of A Mixture and Substance Containing Cocaine, was a serious offense deserving of harsh consequences. See United States Memo. at 7-8. The United States contended that the offense demanded a serious sentence to “attempt to deter this Defendant.” United States Memo. at 8.

         The United States next addressed Lewis' history and characteristics, the offense's nature, and the need to protect the public. See United States Memo. at 8. The United States argued that, “[d]espite repeated and ongoing efforts to deter Defendant's substance abuse problems and criminal actions, such deterrence has proved unsuccessful.” United States Memo. at 8. The United States contended that Lewis continued to commit “egregious” criminal acts and that, accordingly, “the United States submits Defendant is a danger.” United States Memo. at 8.

         Regarding Lewis' stated desire to receive drug addiction treatment, the United States argues that the Bureau of Prisons is “equipped to provide appropriate services” and that supervised release is an inadequate solution, where Lewis has not previously complied with probationary conditions designed to address his drug problem. United States Memo. at 9. The United States argued that the Guidelines range applicable to Lewis was appropriate, reasonable, and justified. See United States Memo. at 10. The United States also averred that, with a sentence of 188 months of imprisonment, Lewis would receive “the same length of sentence as others, with a similar criminal history, who commit Possession With Intent to Distribute More than 5 Grams of A Mixture and Substance Containing Cocaine.” United States Memo. at 11. The United States next asked that Judge Hansen “order the Defendant to reimburse for previous appointed attorneys' services in this case, ” because, although Lewis “claimed he lacked the financial resources to pay for a lawyer, ” he now had, “after two years of incarceration, . . . located the appropriate funds to hire a private lawyer to assist in his defense.” United States Memo. at 11-12.

         4. The Sentencing Hearing.

         Judge Hansen sentenced Lewis. See Transcript of Sentence Hearing (taken April 13, 2010), filed August 16, 2010 (Doc. 110)(“Sentencing Tr.”). Judge Hansen began by asking whether Lewis wished to address the objections he raised in the Lewis Memo. See Sentencing Tr. at 2:10-11 (Court). Lewis objected to the United States' assertion that his prior convictions are separate offenses because they have different case numbers and stated that the records associated with his prior offenses are so old that the reports are destroyed and that “it's impossible to determine whether or not there is [sic] intervening arrests in this case.” Sentencing Tr. at 2:24-3:11 (Kennedy). Lewis indicated that the USPO submitted something to Judge Hansen “that said [Albuquerque Police Department (“APD”)] records indicate that he was arrested on each of these cases, ” but that a report no longer exists, and there were no intervening arrests. Sentencing Tr. at 3:12-17 (Kennedy). The United States responded that it relied upon the addendum to the Form 13, the separate arrest dates, and the separate case numbers, to show that Lewis' prior convictions constitute separate offenses “so as to qualify for a career offender” designation. Sentencing Tr. at 3:20-25 (Rees). The United States averred, furthermore, that Lewis admitted in his plea agreement that he is a career offender. See Sentencing Tr. 4:4-6 (Rees).

         Judge Hansen examined the addendum to the Form 13 and concluded that, based on the separate offense dates and case numbers for Lewis' prior convictions, he qualifies as a career offender. See Sentencing Tr. at 4:9-25 (Court). Lewis responded that, although the addendum to the Form 13 includes dates, Lewis could find no information to verify those dates independently before receiving the addendum to the Form 13. See Sentencing Tr. at 5:2-4 (Rees). Judge Hansen overruled Lewis' objection regarding his career offender designation. See Sentencing Tr. at 5:8-9 (Court).

         Next, Lewis drew Judge Hansen's attention to Mr. Neal's ineffective assistance at the time of Lewis' plea agreement for the prior convictions, and that, based on the ineffective assistance which Lewis received, he has requested, in state court, that his sentences for the prior crimes be reopened and reviewed. See Sentencing Tr. at 5:15-6 (Kennedy); id. at 6:10-12 (Court, Kennedy). Lewis requested that Judge Hansen, pursuant to 28 U.S.C. § 2255, reopen Lewis' sentencing in state court. See Sentencing Tr. at 6:16-19 (Kennedy). The United States responded that “the time to attack the state convictions has already run, and that he cannot collaterally attack those prior state convictions in federal court.” Sentencing Tr. at 7:4-7 (Rees). Judge Hansen clarified that Lewis has already served his state sentences. See Sentencing Tr. at 7:8-9 (Court). Lewis acknowledged that he served his state sentences but contended that he could still appeal in state court, and Judge Hansen responded that he was unsure that Lewis could appeal in state court. See Sentencing Tr. at 7:10-16 (Kennedy, Court). Lewis proposed that Judge Hansen continue the sentencing until it could consider the issue of reopening the prior state court sentencing, and Judge Hansen declined, noting that Lewis has already been through four attorneys, and that the case opened three years prior. See Sentencing Tr. at 7:13-25 (Kennedy, Court). Judge Hansen stated that he did not see a means by which he could grant state court sentencing relief, and Lewis responded that, at the end of the hearing, he wished to discuss with Judge Hansen his ability to appeal Judge Hansen's rulings. See Sentencing Tr. at 9:1-7 (Court, Kennedy).

         Judge Hansen asked whether there is a plea agreement, and Lewis stated that there is an agreement, and confirmed that, if he withdrew from the plea, he would be exposed to a greater potential sentence. See Sentencing Tr. at 9:8-15 (Court, Kennedy). The United States then asked Judge Hansen to sentence Lewis immediately and stated that the plea agreement “encompasses not arguing for a downward departure or variance, ” “waiving all appeal rights, ” and is “frankly . . . favorable” to Lewis. Sentencing Tr. at 9:17-25 (Rees). Lewis indicated to Judge Hansen that he was inclined to withdraw his plea if Judge Hansen would not allow him to appeal, and Judge Hansen responded that he would not delay the disposition of the case, given its long history, and that he accepted the plea agreement and Lewis' guilty plea. See Sentencing Tr. at 10:4-21 (Kennedy, Court). Judge Hansen then asked whether the parties wished to address sentencing issues. See Sentencing Tr. at 10:22 (Court). Lewis stated that the United States did not honor its cooperation agreement with Lewis, and Judge Hansen dictated that, according to the briefing and Lewis' prior counsel's affidavit, Judge Hansen did not believe he saw anything “which would change the result in this case.” Sentencing Tr. at 11:5-14 (Kennedy, Court).

         Lewis next argued that, pursuant to 18 U.S.C. § 3553(b), Judge Hansen could depart from the advisory Guidelines range, because of “issues not adequately taken into consideration by the Sentencing Commission.” Sentencing Tr. at 11:15-18 (Kennedy). First, Lewis argued that his Guidelines sentencing range was 92 to 115 months, but that his career offender designation elevated that range to 188 to 234 months, more than doubling his sentence, and warranting a departure. See Sentencing Tr. at 12:4-10 (Kennedy). Lewis also argued that his offense level of 26, before the career offender designation is applied, is disproportionately high, because of the unwarranted disparity between sentencing for cocaine base and cocaine. See Sentencing Tr. at 12:12-14 (Kennedy). Judge Hansen stated that Lewis was sentenced under the career offender provision, not the crack cocaine provision, so the Kimbrough crack/cocaine disparity argument is inapposite. See Sentencing Tr. at 13:1-3 (Court). Lewis argued that Judge Hansen should nevertheless consider the disparity, because Lewis' offense involved so little cocaine base that his case would not be a federal one but for a firearm that was incorrectly associated with him. See Sentencing Tr. at 13:4-9 (Kennedy). Judge Hansen remarked that state courts do not give sentences of the same length for the same crime as federal courts do. See Sentencing Tr. at 13:17-20 (Court). Judge Hansen remarked that, although he is aware federal courts may depart from the Guidelines for many reasons, he has not “seen anything out of the ordinary in this case which leads [him] to that conclusion.” Sentencing Tr. at 14:5-7 (Court).

         Judge Hansen noted that he reviewed the Form 13's factual findings and considered the Guidelines applications, as well as the 18 U.S.C. § 3553(a) factors, including the USPO's finding that Lewis is a career offender. See Sentencing Tr. at 19:8-12 (Court). Judge Hansen stated that Lewis' offense level is 31, his criminal history category is VI, and his Guidelines imprisonment range is 188 to 235 months. See Sentencing Tr. at 19:13-14 (Court). Judge Hansen noted that Lewis, “a convicted felon, possessed 3.1 grams of marijuana, 2.4 net grams of cocaine, 25.06 net grams of cocaine base, as well as a fully loaded revolver.” Sentencing Tr. at 19:15-18 (Court). Judge Hansen sentenced Lewis to a term of 188 months incarceration, recommended that he participate in the BOP's 500-hour drug and alcohol treatment program, and that he participate in additional educational or vocational programs while incarcerated, and sentenced Lewis to eight years of supervised release following his term of incarceration. See Sentencing Tr. At 19:20-20:3 (Court). Judge Hansen imposed a series of conditions, stating as follows:

The defendant must comply with the standard conditions of supervised release and the following mandatory conditions: The defendant will submit to DNA collection in compliance with statutory requirements while incarcerated in the Bureau of Prisons or at the direction of the United States Probation Office.
The defendant shall not possess, have under his control, or have access to, any firearm, ammunition, explosive device, or other dangerous weapons as defined by federal, state, or local law.
The following special conditions will also be imposed:
The defendant must participate in and successfully complete a substance abuse treatment program which may include drug testing, outpatient counseling, or residential placement. The defendant is prohibited from obstructing or attempting to obstruct or tamper in any fashion with the collection, efficiency and accuracy of any substance testing device or procedure. The defendant may be required to pay a portion of the cost of treatment and/or drug testing as determined by the probation office.
The defendant must refrain from the use and possession of alcohol and other forms of intoxicants. He must not frequent places where alcohol is the primary item for sale.
The defendant must participate in an educational or vocational program as approved by the probation office.
The defendant must submit to a search of his person, property, or automobile under his control to be conducted in a reasonable manner and at a reasonable time for the purpose of detecting firearms, narcotics, or other contraband at the direction of the probation officer. He must inform any residents that the premises musts be subject to a search.
The defendant must participate in and successfully complete a mental health treatment program which may include outpatient counseling, residential placement, or prescribed medication as approved by the probation officer. The defendant may be required to pay a portion of the cost of this treatment as determined by the probation office.
The defendant shall reside at and complete a program at a community corrections center for a period of six months as approved by the probation office.

Sentencing Tr. at 20:4-21:18 (Court).

         Judge Hansen did not impose a fine, because of Lewis' lack of financial resources. See Sentencing Tr. at 21:19-20 (Court). Judge Hansen ordered Lewis to pay a special assessment of $100.00, due immediately. See Sentencing Tr. at 22:4-6 (Court). Judge Hansen noted that, pursuant to Lewis' plea agreement, “the defendant waives the right to appeal the final sentence imposed by this court under 18 U.S.C. § 3742(a).” Sentencing Tr. at 22:4-6 (Court). Last, Judge Hansen recommended that the BOP assign Lewis for incarceration at or near Beaumont, Texas. See Sentencing Tr. at 22:13-14 (Court). Following the sentencing hearing, Judge Hansen entered the Judgment, filed April 16, 2010 (Doc. 93), imposing Lewis' sentence. See Judgment at 1.

         PROCEDURAL BACKGROUND

         At the time of Lewis' original sentencing, the PSR stated Lewis' advisory Guidelines base offense level as 26, pursuant to U.S.S.G. § 2D1.1. See PSR ¶ 25, at 9. The PSR concluded that, because Lewis possessed a dangerous weapon (including a firearm), his base offense level enhanced to 28. See PSR ¶ 26, at 10. The PSR also concluded that Lewis was a career offender, because he “was at least 18 years old at the time of the instant offense, the instant offense is a qualifying felony offense, and [Lewis] has at least two prior qualifying felony convictions . . . .” PSR ¶ 32, at 11. Regarding a 21 U.S.C. § 851 enhancement, the PSR stated:

According to the Assistant United States Attorney in this case, an Information charging 21 U.S.C. § 851, Information Charging Prior Conviction, will not be filed, as the Information to which the defendant pled guilty indicates he committed the instant offense subsequent to a felony drug conviction and is therefore subject to enhanced penalties.

PSR ¶ 4, at 3. The USPO concluded that Lewis' offense level was 37, because his offense statutory maximum, after applying the 21 U.S.C. § 851 enhancement, was life imprisonment. See PSR ¶ 32, at 11. The PSR stated that, “according to the plea agreement, the parties have stipulated the offense level is 34, pursuant to U.S.S.G. § 4B1.1(b)(B).” PSR ¶ 32, at 11. Applying a three-level reduction for acceptance of responsibility, the USPO concluded that Lewis' total offense level was 31. See PSR ¶¶ 33-34, at 11. Based on Lewis' criminal history, the USPO calculated his criminal history points as 21, and his criminal history category as VI, even without a career offender designation. See PSR ¶ 54, at 28. The USPO noted that Lewis “does not appear to have any circumstances that would take him away from the heartland of cases of similarly situated defendants.” PSR ¶ 126, at 43. The USPO concluded, therefore, that there were no factors in Lewis' case warranting departure from the Guidelines range for an offense level of 31 and a criminal history category of VI, of 188 to 235 months. See PSR ¶ 126, at 43; U.S.S.G. Sentencing Table. The USPO also noted that an eight-year term of supervised release is statutorily required for Lewis' statute of conviction when a term of imprisonment is imposed. See PSR ¶ 110, at 40.

         At the Plea Hearing, held before the Honorable Lorenzo F. Garcia, then-United States Magistrate Judge for the District of New Mexico, Lewis pled guilty to the Information. See Information at 1, filed November 3, 2009 (Doc. 72); PSR ¶ 4, at 3. See also Plea Minute Sheet at 1, filed November 3, 2009 (Doc. 76); Plea Agreement at 2. The Information charges that Lewis

having been previously convicted of a felony drug offense of Possession of a Controlled Substance, in the Second Judicial District Court, No. D-202-CR-9802236, did unlawfully and knowingly possess with intent to distribute more than 5 grams of a mixture and substance containing a detectable amount of cocaine base, a Schedule II controlled substance. In violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).

         Information at 1. As a factual basis for his plea, Lewis provided the following:

7. By my signature on this plea agreement, I, JABSIE DWAYNE LEWIS, am acknowledging that I am pleading guilty because I am in fact guilty of the offenses to which I am pleading guilty. I recognize and accept responsibility for my criminal conduct. Moreover, in pleading guilty, I acknowledge that if I chose to go to trial instead of entering this plea, the United States could prove facts sufficient to establish my guilt to the charges to which I am pleading guilty beyond a reasonable doubt. I admit the following facts related to the charges against me, and declare under penalty of perjury that all facts are true and correct:
a. On or about September 6, 2007, Albuquerque Police Officers responded to domestic dispute complaint [sic] at the residence of 6331 Duero NW, Albuquerque, Bernalillo County, New Mexico. Upon arrival, officers found me asleep on the couch in the living ...

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