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United States v. Lewis

United States District Court, D. New Mexico

May 21, 2019

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

          John C. Anderson United States Attorney Paul H. Spiers Adam S. Rowley Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Kari Converse Assistant Federal Public Defender Albuquerque, New Mexico and Monnica Lynn Barreras Law Office of Monnica L. Barreras, LLC Albuquerque, New Mexico 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. 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. Lewis had several other arrests that did not count for criminal history points, as well as multiple probation violations, as detailed in the PSR. See PSR ¶¶ 59-68, at 30-31. The PSR sets out the Plea Agreement's factual basis in paragraphs 8 through 19. See 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. 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 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 room and Ahmad Williams asleep on the floor of the living room.
b. Officers searched the immediate area around me and found the handle of a loaded Hermann Weinrauch .357 firearm underneath the couch where I had been sleeping. Officers also located a plastic bag containing cocaine, a plastic bag containing suspected cocaine base and a plastic bag containing suspected marijuana, on top of the couch, where I had been sleeping. The substances tested positive for cocaine, cocaine base, and marijuana, respectively. The cocaine weighed 3.5 gross grams, the cocaine base weighed 10.3 gross grams, and the marijuana weighed 3.1 gross grams. When the officers searched me, they found a bag containing suspected cocaine base in my pant pocket. The substance tested positive for cocaine base and weighed 23.2 gross grams.
c. After being advised of my Miranda Rights [sic], I told the officers the cocaine and marijuana belonged to me. I further admitted that I sold the cocaine base to “make some money.” d. Investigators sent the drugs to a lab for analysis. The lab confirmed the drugs were in fact cocaine and cocaine base, with a total equalling [sic] 5 or more grams of a mixture containing cocaine base.
e. At the time of the incident, I was a career offender pursuant to United States Sentencing Guidelines (U.S.S.G.) § 4b1.1(b). Specifically, I had the following prior felony convictions:
I. Aggravated Assault With A Deadly Weapon, a 4thDegree Felony, in the Second Judicial District Court, No. D-202-CR-9902789; and
II. False Imprisonment, a 4th Degree Felony, and Robbery, a 3rd Degree Felony, in the Second Judicial District Court, No. D-202-CR-9902789.
f. At the time of this incident, I also had a prior felony drug conviction of Possession of a Controlled Substance, a 4th Degree Felony, in the Second Judicial District Court, No. D-202-CR-9602246.
8. By signing this agreement, I, JABSIE DWAYNE LEWIS, the Defendant admits all the foregoing facts and admits that there is a factual basis for each element of the crime(s) to which I will plead guilty. Specifically, I agree that on or about September 6, 2007, in the District of New Mexico, I unlawfully and knowingly possessed with the intent to distribute more than five (5) grams of a mixture and substance containing a Cocaine base, and that at the time I had a prior felony drug conviction for Possession of a Controlled Substance, in the Second Judicial District Court, No. D-202-CR-9602246.
9. I recognize and accept responsibility for my criminal conduct. The Defendant agrees the Court may rely on any of these facts, as well as facts in the presentence report, to determine the Defendant's sentence, including, but not limited to, the advisory guideline offense level.

         Plea Agreement ¶¶ 7-9, at 3-5. See PSR ¶¶ 5(a)-(d), at 4. Pursuant to the Plea Agreement, the parties stipulated that “the offense level is 34, pursuant to U.S.S.G. § 4B1.1(b).” PSR ¶ 5(c), at 4. The Plea Agreement stipulates that Lewis will not seek a downward departure or any further reduction, departure, deviation, or variance from the applicable sentencing guideline range, “as determined by the Court after resolution of any objections by either party” to the PSR. PSR ¶ 6(a), at 4. In the Plea Agreement, Lewis “knowingly waives the right to appeal his conviction and any sentence at or under the maximum statutory penalty, ” and agrees to “waive any collateral attack to his convictions pursuant to 28 U.S.C. § 2255, except on the issue of ineffective assistance of counsel.” PSR ¶ 6(j), at 5. Pursuant to the non-binding Plea Agreement,

The defendant understands the stipulations are not binding on the Court and whether the Court accepts these stipulations is a matter solely within the discretion of the Court after it has reviewed the presentence report. Further, the defendant understands the Court may choose to vary from the advisory guideline range. The defendant understands that if the Court does not accept any one or more of the above stipulations and reaches an advisory guideline sentence different than expected by the defendant, or if the Court varies from the advisory guideline range, the defendant will not seek to withdraw the plea of guilty. In other words, regardless of any stipulations, the defendant's final sentence is solely within the discretion of the Court.

PSR ¶ 6(c), at 4-5.

         1. The Motion.

         On February 11, 2019, Lewis filed the Motion. The primary issues are: (i) whether, pursuant to the First Step Act, 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. See Motion at 1. Lewis argues that the First Step Act “establishes its remedy in two steps, and it clearly applies to Mr. Lewis at each step.” Motion at 3. First, Lewis argues that his drug offenses are “covered offenses” for the First Step Act's purposes, because he committed violations of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii), and he committed those offenses before August 3, 2010, as the First Step Act's definition of covered offenses requires. See Motion at 3 (citing First Step Act § 404(a)). Second, Lewis argues that the First Step Act applies to him, because Judge Hansen imposed a sentence on him for a covered offense. See Motion at 3 (citing First Step Act § 404(b)). Third, Lewis contends that the First Step Act provides only “two narrow limitations on this resentencing power” and that neither of the limitations applies to him, because his sentence was not previously imposed or reduced in accordance with the First Step Act or the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“Fair Sentencing Act”), and because no previous motion made on his behalf under either act has been denied after a complete review on the merits. See Motion at 4-5 (“Lewis has not previously moved for a reduced sentence under Section 404 of the First Step Act of 2018, and his sentence was not previously imposed or previously reduced in accordance with sections 2 and 3 of the 2010 FSA.”).

         Lewis argues that, under the Fair Sentencing Act, he “would be subject to no mandatory minimum, and his statutory maximum would be 20 years.” Motion at 5. Lewis contends that his career offender guideline changes, therefore, to a new offense level of 29, after a 3-level reduction for acceptance of responsibility -- compared to the previous adjusted offense level after acceptance of responsibility of 31. See Motion at 5 (citing U.S.S.G. § 4B1.1(b)(3)). Lewis contends that his Guidelines imprisonment range changes from 188 to 235 months, to a new advisory range of 151 to 188 months, and that he suggests a sentence of 151 months followed by five years of supervised release. See Motion at 5. Lewis also avers that the BOP used a good time calculation during Lewis' incarceration “that resulted in an inmate serving 87.14% of his sentence.” Motion at 6. Lewis argues that he is eligible for relief under ...


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