United States District Court, D. New Mexico
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
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
MEMORANDUM OPINION AND ORDER
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
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.
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.
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.
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 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.
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.
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).
Defendant's Sentencing Memorandum.
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 § 4B1.1(a)'s
career offender definition,  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.
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.
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.
the nature and circumstances of the offense, Lewis noted that
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.
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”),
 correct that
disparity by exercising its discretion to assign him a lower
sentence than the Guidelines suggested. See Lewis
Memo. at 12.
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
Addendum at 1-2.
The United States' Sentencing
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.
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.
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.
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.
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 under the residual clause,
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. 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.
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.
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.
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.
The Sentencing Hearing.
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).
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
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).
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).
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).
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
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
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
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.
Tr. at 20:4-21:18 (Court).
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.
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.
¶ 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.
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
at 1. As a factual basis for his plea, Lewis provided the
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
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
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
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,
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.
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
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.
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.”).
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 ...