United States v. Anderson

          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. 880. The United States Probation Office has filed a Sentence Reduction Report (“SRR”), indicating Count 1 is a covered offense, but noting the reduced statutory penalties on Count 1 had no impact on the guideline range and Defendant is only entitled to a reduced term of supervised release. ECF No. 870. The Government filed a response agreeing with Probation. ECF No. 883. Thereafter, the court directed the Government to address whether Defendant's conviction on Count 7 should impact the court's decision. The Government then filed a Supplemental Response (ECF No. 885) and Defendant filed a Supplemental Motion for Relief (ECF No. 886).

         Background

         Defendant was charged in a Second Superseding Indictment with the following counts: conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base and 500 grams or more of cocaine (Count 1); intentional killing of an individual while engaging in conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base and 500 grams of more of cocaine, in violation of 21 U.S.C. § 848(e)(1)(A) (Count 3); knowing use and carrying of a firearm during and in relation to a drug trafficking crime and a crime of violence, which caused the death of a person through the use of the firearm, such killing being a murder, in violation of 18 U.S.C. § 924(j)(1) (Count 4); felon in possession of a firearm (Count 6); and possession with intent to distribute a quantity of cocaine base (Count 7). ECF No. 138. The Government filed an Information under 21 U.S.C. § 851 noting Defendant had three prior felony drug convictions, subjecting him to a mandatory Life Sentence. ECF No. 73.

         On September 6, 2005, Defendant entered a guilty plea pursuant to an Amended Plea Agreement to Count 1, conspiracy to possess with intent to distribute 500 grams or more of cocaine and 50 grams or more of cocaine base, and Count 7, possession with intent to distribute a quantity of cocaine base. ECF No. 284.^[1] The Plea Agreement included a stipulation by Defendant that he had one prior felony drug conviction which was noticed pursuant to § 851 and subjected him to a mandatory minimum term of twenty years imprisonment. Id. at ¶ 5. The parties stipulated that the quantity of cocaine base Defendant was responsible for as relevant conduct was at least 50 grams, that there was insufficient evidence for a role enhancement or obstruction of justice, that the murder cross-reference at U.S.S.G. § 2D1.1(d)(1) was applicable, and that a three-level reduction for acceptance of responsibility was applicable if Defendant complied with his Plea Agreement. Id. at ¶ 13.

         At the Rule 11 hearing, the court advised Defendant:

All right, the particular charge in count 1 is that beginning at a time unknown to the grand jury, but at least early 2000, and continuing thereafter up to and including the date of the second superseding indictment, that you, along with Mr. Reid and Mr. Simpson, knowingly and intentionally did conspire and agree with each other and with others, knowingly, intentionally, and unlawfully to possess with intent to distribute 50 grams or more of crack cocaine, and 500 grams or more of cocaine, these both being Schedule II controlled substances, in violation of the federal drug laws. …

As to count 1, in order for the Government to prove that, they would have to be able to prove that this conspiracy that is described in count 1 to distribute the charged amount of controlled substance here, 50 grams or more of crack cocaine, was willfully formed and was existing at or about the time alleged. That at some point in time you willfully became a member of this conspiracy, and that you possessed with intent to distribute or distributed a quantity of controlled substance equal to or in excess of the amount charged in count 1, that is, 50 grams or more. That you either agreed to assist in the distribution of that quantity or you assisted actually in the distribution of that quantity or an amount in excess of that quantity, or at least it was reasonably foreseeable to you, and it was within the scope of your agreement and understanding that this amount of drugs was to be distributed. …

Now, do you understand what the Government would have to prove and what the charges are that you are proposing to plead guilty to? The Defendant: Yes, ma'am.

ECF No. 443 at 26-28.

         The Government summarized the evidence against Defendant, explaining

the evidence would show that Kenny Reid was a longtime distributor of cocaine and crack cocaine in the Ft. Mill and Rock Hill areas. …

[A]t some point, probably around late 2002 or early 2003, Mr. Anderson, who was a former friend of Mr. Reid's from Orangeburg, moved into the Rock Hill - the Ft. Mill, excuse me, residence of Mr. Reid's mother, Mr. Reid's sister, and several other family members. And at that point, Mr. Anderson began selling quantities of crack cocaine on almost a daily basis that he received from Mr. Reid.

And the government has a number of witnesses who would testify that Mr. Anderson sold crack cocaine, that they saw him sell crack cocaine. The government has at least two witnesses who were regular customers of Mr. Anderson, who would testify that Mr. Anderson sold them crack cocaine on a daily basis, or almost daily basis.

And one of those witnesses was a lady named Rosa Bruce, who was asked to get a cell phone for Mr. Anderson in her name because he did not have good credit. And she got a cell phone for Mr. Anderson and a cell phone for his then girlfriend LaSharon Fort, who is a sister of Mr. Reid.

The government's evidence would show that Mr. Anderson sometimes frequented a trailer at Red River Road in Rock Hill where Mr. Reid had ounce quantities of crack cocaine there, displayed, weighed out. Mr. ...