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United States v. Barber

United States District Court, D. South Carolina, Rock Hill Division

June 19, 2019

United States of America,
v.
Davinda Tonnellis Barber, Defendant.

          OPINION AND ORDER

          Cameron McGowan Currie, Senior United States District Judge.

         This case comes before the court on Defendant's Motion for Relief under the First Step Act of 2018. ECF No. 436.[1] The United States Probation Office has filed a Sentence Reduction Report (“SRR”), indicating Defendant is eligible for relief as his statutory penalty changed, but the retroactive application of the Fair Sentencing Act had no impact on the applicable guideline range. ECF No. 434. Defendant's statutory sentencing range has changed from 20 years to Life to 10 years to Life, and his supervised release exposure is eight years instead of 10 years. Defendant's advisory Guideline range remains 262-327 months. The Government agrees Defendant is eligible for relief but requests the court deny relief because a reduction in sentence “would not further the goals of sentencing outlined in 18 U.S.C. § 3553(a).” ECF No. 440 at 1. Defendant has not filed a reply.

         The court will consider the new statutory range, the advisory guideline range, factors in 18 U.S.C. § 3553(a), and any evidence of post-sentencing mitigation in deciding whether to impose a reduced sentence of incarceration. Therefore, the parties shall file, on or before July 15, 2019, any further submissions relevant to these matters.

         Background

         Defendant was charged in a multi-count indictment with conspiracy to distribute cocaine and cocaine base and felon in possession of a firearm. ECF No. 125. On June 12, 2009, he entered a guilty plea to conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. ECF No. 249 at 43. Prior to the change of plea, the Government filed an Information under 21 U.S.C. § 851 noting Defendant had one prior felony drug conviction, subjecting him to an increased mandatory minimum sentence of 20 years. ECF No. 121.

         At the Rule 11 hearing, the court advised Defendant:

So the way this plea agreement reads then, you will plead guilty to count 1. As I understand it, you are prepared to admit that you were involved in a conspiracy to possess with intent to distribute at least 50 grams of crack. The government would have to be able to prove that conspiracy; it was willfully and knowingly formed and was in existence during the time period; that you at some point joined in this conspiracy with knowledge of the purpose of it; and that during the time you were a member of the conspiracy you either personally distributed 50 grams or more of crack, or agreed to assist others in doing that, or at least it was reasonably foreseeable to you that that would be what was occurring. Because you have an 851 information, you will face a mandatory minimum term of 20 years, to a maximum of life, without parole, a maximum fine of $8 million, a term of supervised release of at least 10 years, in addition to the term of imprisonment, and a special assessment of $100. Do you understand those penalties you face? The Defendant: Yes, ma'am.

ECF No. 272 at 20-21.

The Government summarized the evidence against Defendant, explaining Defendant was involved in four controlled purchases of crack cocaine, totaling 2.09 grams of crack. . . . Mr. Barber did not have enough so Mr. Barber went to Mr. Dixon and Mr. Dixon then provided Mr. Barber with the drugs to sell to the CI. Mr. Dixon would also then testify that this pooling happened on more than one occasion . . . on a few occasions Mr. Barber and Mr. Dixon would pool their money in order to purchase crack. The evidence would show with the controlled buys and the historical witnesses that it would be in excess of 50 grams of crack cocaine.

         Id. at 27-28.

         Thereafter the court inquired of Defendant as follows:

The court: All right. Mr. Barber, were you involved with at least one other person in an agreement under which the purpose was to distribute crack cocaine?
The Defendant: Yes - yes, ma'am.
The court: All right. And did you know that this was ...

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