Free Motion for Modification of Sentence - District Court of Arizona - Arizona

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BLUMBERG & ASSOCIATES

Bruce E. Blumberg
BLUMBERG & ASSOCIATES
_____________________

45 West Jefferson, Suite 210 Phoenix, Arizona 85003
Office: (602) 277-6180 Fax: (602) 271- 4119

Attorney for Defendant Arizona State Bar Number 010779

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

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UNITED STATES OF AMERICA, Plaintiff, vs. MARVIN WILLIAMS, Defendant.

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Criminal Case No: 2:04-CR-00381-JAT-1 DEFENDANT'S MOTION FOR MODIFICATION OF TERM OF IMPRISONMENT, PURSUANT TO 18 U.S.C. § 3582(c)(2) AND USSG § 1B1.10 * ORAL ARGUMENT REQUESTED * (Honorable Judge James A. Teilborg)

COMES NOW the defendant, Marvin Williams, by and through undersigned counsel, Bruce E. Blumberg, and moves the Court to re-open this matter, and modify his previously imposed term of imprisonment, pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines ("USSG") § 1B1.10. The Court's authority and jurisdiction to reduce Mr. Williams's sentence has been triggered by recent actions taken by the United States Sentencing Commission ("the Commission"), and is supported by binding Supreme Court and Ninth Circuit precedent. This Motion is based upon the complete record in this matter, as well as the accompanying Memorandum of Points and Authorities. Mr. Williams asks that the Court hold a hearing to consider his Motion, as a full and fair consideration of the ultimately "reasonable" sentence will require him to present evidence to the

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Court in support of his arguments. Further, as discussed below, Mr. Williams asks the Court to reduce his sentence to a term that would allow him to be released from incarceration as early as June 2008, making time of the essence. As such, Mr. Williams asks the Court to set a hearing at the Court's earliest convenience to consider his request, and to allow him to present oral argument of the issues at the hearing. Further, given the time-sensitive nature of this matter, Mr. Williams asks the Court to direct the government to respond on an expedited basis, to avoid him being unduly incarcerated any longer than the time deemed "reasonable" by the Court, as discussed herein.

RESPECTFULLY SUBMITTED this 8th day of April, 2008. BLUMBERG & ASSOCIATES

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By:

__/s/ Bruce E. Blumberg /s/________ Bruce Blumberg, Esq. 45 West Jefferson, Suite 210 Phoenix, Arizona 85003 Attorney for Defendant Williams

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The gross disparity in punishment for crack versus powder cocaine1 has long been the subject of academic discussion within the federal criminal justice bar. This ongoing debate finally

culminated in what appears to be a first step toward greater fairness and equity in crack cocaine cases. However, the Commission has described the current amendment as only a "partial remedy."2

For instance, while a majority of crack users in the United States are white, 94 percent of those sentenced under the incomparably severe penalties for crack cocaine are black or Hispanic. See Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System at 30 (2000); United States Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics at 69. 2 Report to Congress: Cocaine and Federal Sentencing Policy at 10 (May 2007).

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The Commission has described the problem as an "unwarranted sentencing disparity" that must be "mitigated." The issue of disparity is especially crucial in the instant case. The disparity in effect at the time Mr. Williams was sentenced was as high as a 100:1 ratio. The Commission has recommended changes to get the ratio down to, at most, 20:1. As will be explained below, even the retroactive amendments here still put Mr. Williams at a 70:1 ratio! This falls far short of the Commission's stated target, and results in a severe and unwarranted sentencing disparity for Mr. Williams. This significant disparity (even more severe for Mr. Williams than if he had a greater amount of drugs) must be remedied, and the Court has been given the authority to do precisely that. The Commission initially amended the sentencing guidelines to reduce the assigned offense levels for "crack" cocaine (hereinafter "the amendment"), to take effect on November 1, 2007. However, the change was not yet retroactive. Then, on December 11, 2007, the Commission unanimously voted to give retroactive affect to the amendment and reduce the penalty for crack offenses in all cases where the judgment is "final." Retroactivity became effective March 3, 2008. II. STATEMENT OF FACT Marvin Williams and several co-defendants were charged in a three-count Indictment on or about April 15, 2005.3 Approximately one month later, Mr. Williams was released on his own recognizance, under the supervision of Pretrial Services.4 Mr. Williams remained fully compliant with his release conditions through the time of sentencing, and obtained and maintained gainful employment during that time.5 Thereafter, on June 16, 2005, Mr. Williams pleaded guilty to Count 2 of the Indictment, pursuant to Fed. R. Crim. P. 11(c)(1)(C). In the plea agreement, the parties stipulated to an

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applicable drug quantity for guidelines purposes, as well as other provisions. Mr. Williams came before the Court for sentencing on November 22, 2005. The drug quantity at issue in Mr. Williams' case was 122.1 grams, placing his base offense level at a level 32.

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Docket No. 1. See Presentence Report ("PSR") at ¶ 1.

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After a three-level reduction for acceptance of responsibility, his total offense level was a 29. Combined with a criminal history category of IV, his guideline range came out at 121-151 months. However, upon the government's motion, the Court granted an additional seven-level downward departure, resulting in a total offense level of 22. Mr. Williams was sentenced to a term of 63 months incarceration ­ the low-end of a 63-79month range ­ with the Bureau of Prisons ("BOP"), to be followed by a five-year term of supervised release. Counts 1 and 3 were dismissed upon motion of the government. Judgment was entered on November 28, 2005, making his term of imprisonment "final" for purposes of the Commission's USSG amendments on that date. Mr. Williams is presently incarcerated at La Tuna Federal Correctional Institution in Anthony, Texas, and is currently projected by the BOP to be released from confinement on May 28, 2010.6 III. JURISDICTION The legal vehicle for a retroactive reduction in a sentence where judgment is final, is 18 U.S.C. § 3582(c)(2). U nder § 3582(c)(2), a sentencing court has authority to reopen and, if appropriate, reduce a sentence when it was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . ." This is precisely what happened with the Commission's recent amendment, and nothing more is required to trigger the Court's authority to re-sentence Mr. Williams under § 3582. Once the Court's authority to revisit a previously imposed, final sentence is triggered under § 3582(c)(2) ­ as it has been here ­ the Court must still ensure, as in all cases, that the sentence is consistent with the factors set forth in § 3553(a). IV. DISCUSSION The impact of the Commission's amendment is manifested in what amounts to, as previously noted, an across-the-board two-level downward adjustment in base offense levels assigned to crack

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Id. at ¶ 2. Per the "inmate locator" service at www.bop.gov.

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cocaine quantities in the drug quantity table, § 2D1.1. However, this amendment only partially addresses the issue. While, at a § 3582(c)(2) re-sentencing hearing, the Court begins its

consideration with the lower, amended base offense level, it does not end the analysis there. In a § 3582(c)(2) re-sentencing hearing is for the judge to determine what the guideline sentence would have been at that time of the original sentencing, if the amended guideline applied. Importantly, § 3582(c) also requires the re-sentencing judge to determine whether to exercise his discretion under "all relevant statutory sentencing factors" which exist at the time of resentencing, whether or not they existed at the original sentencing. Thus, the Court has the authority and discretion to re-visit this sentence in light of the legal developments that have occurred since the imposition of sentence ­ which are significant here ­ as applied to the facts of a particular case. A. Application to Mr. Williams' Case

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Both the USSG amendment by the Commission, and the intervening changes in Supreme Court case law since the time of the original sentencing in this case, have direct and significant bearing on Mr. Williams' case, and call for a reduction of that original term of imprisonment. 1. Step one ­ amended advisory guideline range.

As noted above, the base offense level (hereinafter "BOL") applied in the PSR was a 32, based upon the quantity of crack cocaine at issue (122.1 grams). Under the amended drug quantity table ­ § 2D1.1 ­ the same amount of drugs would now yield a BOL of 30, rather than 32. This would result in an offense level of 27, accounting for acceptance of responsibility. However, the Court's directive is to first determine the advisory guideline range that would have applied at the time of sentencing, had the amendment been in effect. This includes

consideration of the government's Motion for a seven-level reduction in Mr. Williams' offense level. This same seven-level reduction must still apply, as the basis for that Motion has not changed. With a seven-level reduction ­ to an offense level 20, and criminal history category IV ­ the amended advisory guideline range would be 51-63 months ­ a full year less than the sentence currently imposed. 2. Step two ­ "all relevant statutory sentencing factors."

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The next step is to argue all of the relevant statutory sentencing factors as they exist in the new framework born of Booker, Rita, and their progeny. It is under this analysis that the Court must consider the continuing, unwarranted, and significant disparity in punishment assigned by the USSG to Mr. Williams, in relation to offenders with more and less drugs than him. Even the amended guideline, as applied here, still results in an unjust and unreasonable 70:1 ratio for Mr. Williams. This falls short of the sentencing directives of § 3553(a) and further departure is not only justified, but also required to ensure equity and Booker "reasonableness." B. § 2D1.1 Disparity ­ the Problem is Far From Remedied

Specifically, a remarkable disparity exists in this case, not only between crack and powder cocaine generally, but also between Mr. Williams' specific BOL as compared to those of greater and lesser quantities for the same drug! Consider the following new ratios (recalling that the

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Commission's own stated goal is a 20:1 maximum ratio): NEW LEVEL (BOL) 38 36 34 32 RATIO 33:1 33:1 30:1 33:1

30 (*new BOL)
38 26 24 22 20 Lower

70:1
57:1 25:1 80:1 75:1 67:1 50:1

It is remarkable that the four BOLs above Mr. Williams and the two BOLs below his quantity would have yielded such a lower ratio. What is worse, the ratio is often more severe for low-level players than for bigger dealers.

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It must be emphasized to the Court that had Mr. Williams possessed a GREATER quantity of drugs, he would receive a fairer sentence (proportionally). This is an unacceptable disparity. It is not rationally based, and is not reasonable. Mr. Williams submits that the Court should not assign a ratio any higher than 25:1 (the lowest of the group). To this end, he asks the Court to make an independent assessment under § 3553(a) and Booker/Rita, that an advisory USSG range based on a higher ratio amounts to "unsound judgment" on the part of the Commission, and should not be followed. In Rita, the Supreme Court specifically held that a district court may conclude that the guideline sentence fails to reflect § 3553(a) considerations, reflect an unsound judgment, does not treat defendant characteristics in the proper way or that a different sentence is appropriate, "regardless."7 C. § 1B1.10 Limitations Inapplicable Here

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Mr. Williams acknowledges that § 3582 proceedings does "not constitute a full resentencing of the defendant,"8 and he is not requesting such. Mr. Williams' requests that the Court herein deal only with the application of USSG § 2D1.1, and not reconsider other issues. In anticipation of a potential argument by the government that USSG § 1B1.10 somehow limits the Court's discretion to impose the requested lesser term, Defendant offers the following. The Commission's attempt to impose a percentage-based limitation on re-sentencing, or prevent any reduction in cases of a § 3553(a)/Booker sentence ­ i.e., USSG § 1B1.10(b)(2)(B) ­ is flatly unacceptable and flies in the face, not only of those binding authorities, but also of the clear line of cases being promulgated recently by the Supreme Court. The Commission's commentary in USSG § 1B1.10 should not be followed for three primary reasons: 1) it limits the sentencing court's ability to consider the all-important § 3553(a) factors in

See Rita, 127 S.Ct. 2465, 2468 (2007) (the presumption is not binding, does not place any burden of persuasion or proof on either party, and does not reflect greater deference to the Commission's factfinding than to that of the district court, but merely "reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case," which is a "double determination."). 8 USSG § 1B1.10(a)(3).

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imposing a new sentence, which violates the court's duty under § 3582(c)(2); 2) it instructs the courts to treat § 1B1.10 as mandatory ­ which, in turn, makes § 2D1.1 mandatory in the context of a § 3582(c)(2) re-sentencing ­ in direct violation of Booker and Kimbrough; and 3) it violates the Commission's own statutory obligations under its enabling statutes ­ 28 U.S.C. §§ 991 and 994. Because Defendant is unaware of what argument may be advanced by the government in response to his Motion, he reserves the right to further respond to these issues. D. The "Reasonable" Sentence for Mr. Williams

Mr. Williams submits that ­ considering the USSG amendment and the statutory factors set forth at 18 U.S.C. § 3553(a) ­ the "reasonable" sentence that should be imposed in this matter under § 3582 is 37 months. This request encompasses what amounts to an additional three-level reduction in the BOL to account for the striking and unjustified disparity between the BOL assigned to Mr. Williams' drug quantity, as compared to those above and below his. A three-level reduction would bring his ratios on par with other quantities, and closer to the Commission's stated goal. Such a reduction would result in a total offense level of 17 that, combined with a criminal history category of IV, yields an advisory guideline range of 37-46 months. Mr. Williams asks that the Court impose the low-end of that range. By Mr. Williams' calculation, and accounting for "good time" credit from BOP, this reduction would call for him to be released in June of 2008, which is quickly approaching. As such, he asks the Court to consider his request and direct the government to respond on an expedited basis to avoid him serving a term any longer than is "reasonable." 1. Other factors weigh in favor of Mr. Williams early release.

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Application Note 1 to USSG § 1B1.10 directs the Court is to consider whether a defendant poses a threat to the community. To that end, Mr. Williams submits (as attachments hereto)

numerous letters from members of his community and family that attest to his good and peaceful character. He further provides verification that he has already secured employment upon his release. Application Note 1 further directs that the Court "may consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment in determining" whether a reduction should be imposed, and the extent of that reduction. Mr. Williams attaches

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hereto, a signed statement by a representative the BOP at FCI La Tuna to verify that, during his incarceration there, he has completed a 40-hour drug abuse program, an anger management program, and has been outstanding in other programs offered there. These achievements echo the statements in his character letters, that Mr. Williams is dedicated and hard-working. He has put his past behind him, and has made a commitment to moving forward as a responsible and law-abiding citizen, a path that he embarked upon even prior to his incarceration. During his pretrial release in this case, he was fully compliant with the terms of his release, and sought and maintained steady and gainful employment. Mr. Williams is fully ready and able to resume his place in society, and will be fully compliant with the terms of his supervised release. V. CONCLUSION Based upon the foregoing, Mr. Williams respectfully moves the Court to reduce his previously imposed term of imprisonment, pursuant to 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10. Mr. Williams requests a sentence of 37 months, and asks that the Court hold an evidentiary hearing for him to offer evidence and oral argument to support his request. Mr. Williams further requests that the Court direct the government to respond on an expedited basis, given his potential for release from incarceration as early as June 2008.

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RESPECTFULLY SUBMITTED this 8th day of April, 2008. BLUMBERG & ASSOCIATES

By: __/s/ Bruce E. Blumberg /s/______ Bruce E. Blumberg, Esq. 45 West Jefferson, Suite 210 Phoenix, Arizona 85003 Attorney for Defendant Williams

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Motion and Memorandum was delivered electronically this 8th day of April, 2008 to: Assistant U.S. Attorney 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 ____/s/ Bruce E. Blumberg /s/________ Bruce E. Blumberg

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