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United States v. Richardson

United States District Court, D. South Carolina

July 10, 2019




         This matter is before the court on defendant's pro se motion and supplemental motion through counsel for a reduction of sentence in light the First Step Act of 2018[1] as it relates to crack cocaine offenses and retroactive application of the Fair Sentencing Act of 2010.[2]

         The First Step Act of 2018 was signed into law on December 21, 2018. One of the changes in the Act relates to the Fair Sentencing Act of 2010 which, among other things, reduced statutory penalties for cocaine base (“crack”) offenses.[3] Specifically, § 404 of the First Step Act retroactively applies the reduced penalties under the Fair Sentencing Act to “covered offenses” committed before August 3, 2010.

         The court that imposed a sentence for a covered offense may on its own or on a motion of the defendant, the Director of the Bureau of Prisons, or the attorney for the government, impose a reduced sentence as if the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed. A court may not entertain a motion to reduce a sentence if the sentence was previously imposed or reduced in accordance with the amendments made by the Fair Sentencing Act of 2010 or if a previous motion to reduce the sentence was denied after a complete review of the motion on the merits. Finally, nothing in the Act shall be construed to require a court to reduce any sentence based on the Act's retroactive application of the Fair Sentencing Act of 2010.

         On January 18, 2019, the Federal Public Defendant's Office filed a supplemental motion on behalf of the defendant. The United States Probation Office has prepared a Sentence Reduction Report (“SRR”) and concludes that the defendant qualifies for a reduced guideline sentence, as well as a reduction in his term of supervised release. The government, however, has responded in opposition to the defendant's motions.


         On October 25, 2007, the defendant pled guilty pursuant to a written plea agreement (ECF No. 723) to Count 1 of the Second Superceding Indictment. That document charged the defendant with being a member of a conspiracy to possess with intent to distribute and distribute “50 grams or more of cocaine base (commonly known as “crack”) and 5 kilograms or more of cocaine, both of which are Schedule II controlled substances, and a quantity of marijuana, a Schedule I controlled substance in violation of 21 U.S.C. §§ 844(a)(1), 841(b)(1)(A), and 841(b)(1)(D).” (ECF No. 473 at 1-2).

         At the time of the offense, 21 U.S.C. § 841(b)(1)(A) could be violated by a conspiracy to distribute either 5 kilograms of cocaine or 50 grams of crack cocaine. Although the Second Superseding Indictment specified the requisite threshold amount for both substances, at the time, a defendant could be convicted with proof of either substance in the quantity specified. The defendant was sentenced to the statutorily required 240 months, followed by ten years of supervised release. But for this statutorily required sentence, the defendant's guideline range would have been 188 to 235 months.

         The government argues that since the defendant pleaded guilty to Count 1-which contained references to the threshold amounts of both powder cocaine and crack cocaine-his sentence should not be disturbed. The court respectfully disagrees.

         At the Rule 11 colloquy proceeding to accept the defendant's plea, the defendant agreed to plead guilty to Count 1, but the Plea Agreement does not specify which prong of the § 841(b)(1(A) substances (cocaine or crack cocaine) the defendant was admitting to. It is clear that the parties knew how to make stipulations because there are other stipulations contained in the Plea Agreement.

         Also during the Rule 11 hearing, this court described the essential elements the government would have been required to prove in order to convict the defendant on Count 1. In doing so, the court stressed that the two threshold quantities could be considered in the alternative, and made it clear that the defendant could be convicted with proof of either of the required thresholds. The defendant indicated that he understood the essential elements of Count 1 that the government would be required to prove.

         Later in the proceeding, when the court asked the defendant to state in his own words what he did to commit the crime, the defendant stated: “I admit to knowing and possession and distribution of 50 grams or more of cocaine with others in connection with the 22 people in this case.” (ECF No. 971 at 36). This court followed up with a question: “You admit that you had that much in your possession at one time, 50 grams or more?” The defendant indicated in the affirmative.

         Then, when the government's FBI case agent, Rodney Crawford, was asked to summarize the evidence the government had collected in its investigation and would be prepared to go forward and prove at trial, Agent Crawford's recitation related only to crack cocaine. Specifically, Agent Crawford said:

Yes, sir. As to Mr. Hassan Richardson, the government would call at least seven witnesses that would testify that Mr. Richardson received crack cocaine from the same sources of supply as other individuals in this conspiracy. We would also show three substantive counts, one for January 19, 2007 that were conducted at the direction of the FBI using a cooperating witness, they were audio and/or video recorded, in which Mr. Richardson on January 19, 2007 distributed 7.87 grams of crack cocaine to a cooperating witness, and on January 22, 2007 ...

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