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United States v. Cyrus

United States District Court, D. South Carolina, Florence Division

September 10, 2019

United States of America,
v.
Clarence Edward Cyrus, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This case comes before the court on Defendant's pro se Motion for Relief Under the First Step Act of 2018. ECF No. 190. The United States Probation Office filed a Sentence Reduction Report (“SRR”) indicating Defendant did not qualify for relief under the Act. ECF No. 193. Thereafter, Defendant filed “objections to the SRR” (ECF No. 201) and a pro se Reply[1] (ECF No. 205). The Government then filed a Response in opposition (ECF No. 208) and a Supplemental Response (ECF No. 209). The Probation Office has now filed an Amended SRR indicating Defendant appears to be eligible for consideration of a reduced sentence as his conviction on Count 2 is for a “covered offense” under the Act. ECF No. 210.

         The court has reviewed the above filings as well as the Second Superseding Indictment, the Plea Agreement, the Transcript of Rule 11 hearing (ECF No. 83) and PreSentence Report (“PSR”) (ECF No. 193-1), and agrees that Count 2 is a “covered offense” under the First Step Act.

         BACKGROUND

         Defendant entered into a Plea Agreement to plead guilty to Counts 1 and 2 of the Second Superseding Indictment, which charged (1) conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, also known as“crack” cocaine, and (2) possession with intent to distribute and distribution of 50 grams or more of cocaine base. ECF No. 83 at 39, 63-64.

         At the Rule 11 hearing, the court advised Defendant:

Now, in order for the government to prove the two charges there, count 1 and count 2, they would have to be able to prove what are called elements of each offense, and they would have to prove each of these elements beyond a reasonable doubt. …
Now, first of all the conspiracy charge, which is count 1, they would have to prove that this conspiracy that is described in count 1was willfully formed and was existing at or about the dates in the indictment, and that the purpose of this conspiracy was to possess with intent to distribute and to distribute drugs, that is of two kinds, powder cocaine and crack cocaine. That at some point during the existence of this conspiracy you knew, you yourself knew of the purpose of this agreement and you deliberately joined in. And then they would have to prove that at some point during the time of that conspiracy, that the amount of five kilograms or more of cocaine was intended to be or was in fact possessed with the intent to distribute, and that the amount of 50 grams or more of cocaine base was possessed or possessed with intent to distribute.
Now, the second charge is the actual charge of a distribution that occurred on August the 7th of 1998, and to prove that charge they would have to prove three essential elements. First of all, that on or about that date you knowingly and intentionally possessed and distributed the crack cocaine described in Count 2; secondly, that at the time of that distribution you knew that what you were distributing was a controlled substance, that is an illegal drug; and third, that you distributed this controlled substance yourself with the intention that it be distributed or passed to another person, whether for money or without money. And because of the amount alleged here they would have to prove that that was 50 grams or more of cocaine base, that is, crack cocaine.
So that's what they would have to prove in order to be entitled to a verdict at trial, they would have to prove all of those things beyond a reasonable doubt as to Count1 and Count 2. Do you understand that? The Defendant: Yes, ma'am.

Id. at 64-65.

         The Government summarized the evidence against Defendant, explaining Defendant supplied various individuals with powder cocaine. Defendant was identified by informants who recorded conversations with Defendant regarding purchasing and distributing drugs, and the Government made several controlled purchases from Defendant via informants. Id. at 67-68.

         Thereafter the court inquired of Defendant as follows:

The court: Let me ask it this way, do you admit that you sold two ounces of crack to ...

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