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United States v. Maxwell

United States District Court, E.D. Kentucky, Northern Division

March 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LAZELLE MAXWELL, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         The Clerk of the Court has filed a letter from Defendant Lazelle Maxwell requesting the appointment of counsel to assist in seeking relief pursuant to the First Step Act of 2018 (“2018 Act”). [Record No. 354] The Court will treat the letter as a motion to appoint counsel and a request for review of his case under the 2018 Act. [Id.] Having reviewed the history of this case and the letter provided by Maxwell, the Court has determined that a sentence reduction is not appropriate and the appointment of counsel is not necessary.

         I.

         It is important to review the history of Maxwell's conviction and sentences in determining whether a sentence reduction is appropriate. Following a jury trial, Maxwell was convicted of conspiring to knowingly and intentionally distribute and to possess with the intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of cocaine base (crack cocaine), a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846 (“Count One”). [Record No. 144] Maxwell also was convicted of conspiring to knowingly and intentionally distribute and to possess with the intent to distribute a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846 (“Count Two”). [Id.]

         Maxwell was initially sentenced to a term of imprisonment of 240 months on Count One and 120 months on Count Two followed by a total term of supervised release of 10 years. [Record No. 208] This sentence was based on the 2009 version of the United States Sentencing Guidelines. The defendant subsequently appealed, and the United States Court of Appeals for the Sixth Circuit affirmed Maxwell's conviction and sentence. [Record No. 233] Maxwell then filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255. [Record No. 244] The motion to vacate was referred to a Magistrate Judge who issued a recommended disposition. [Record No. 264] The undersigned adopted and incorporated the Magistrate Judge's Recommended Disposition, denied the motion to vacate, and issued a Certificate of Appealability regarding the issue of “whether Maxwell's trial counsel erred under Strickland v. Washington, 466 U.S. 668 (1984), by failing to challenge the charges against Maxwell in Counts One and Two of the Superseding Indictment as multiplicitous.” [Record No. 269] Maxwell appealed this issue, and the Sixth Circuit determined that Counts One and Two were multiplicitous. [Record Nos. 271, 282]

         The Sixth Circuit remanded the Court's opinion denying Maxwell's § 2255 motion and instructed the Court “to vacate his conviction on one of the two counts, vacate the special assessment for the vacated count, and resentence him on the remaining count.” [Record No. 282] Following remand, the Court used the 2009 United States Sentencing Guidelines to recalculate Maxwell's sentence. [Record No. 302');">302]

         Maxwell was assigned a base offense level of 34 based upon the quantity of drugs attributed to him under U.S.S.G. § 2D1.1(c)(3). [Record No. 302');">302] A four level increase was assigned due to his leadership role in the offense pursuant to U.S.S.G. § 3B1.1(a). [Id.] Therefore, Maxwell was determined to have a total offense level of 38 pursuant to U.S.S.G. §§ 2D1.1 and 3B1.1. [Id.] Additionally, Maxwell's previous criminal convictions resulted in a subtotal criminal history score of 7, but the instant offense was committed less than two years following the defendant's release from custody, so two points were added pursuant to U.S.S.G. §4A1.1(e) leading to a total criminal history score of 9. [Id.]

         At sentencing, the Court determined that Maxwell's previous conviction of misrepresenting identity should not be considered, and the Court removed one point from the criminal history score for a total criminal history score of 8, putting him in criminal history Category IV. [Id. at p. 13] Therefore, his total offense level and criminal history provided a guideline range of 324 months - 405 months. However, it was determined that Maxwell was a career offender within the meaning of U.S.S.G. §4B1.1, so his criminal history category was Category VI. [Id.] Maxwell's total offense level calculated pursuant to U.S.S.G. §§ 2D1.1 and 3B1.1 was higher than his offense level as a career offender under U.S.S.G. § 4B1.1, so the Court used his total offense level of 38 to calculate the appropriate guidelines range. See U.S.S.G. § 4B1.1. Accordingly, his total offense level and criminal history category provided a guidelines range of 360 months - life. Based upon these calculations, the Court determined that a 360-month term of imprisonment on Count One was appropriate. [Record No. 293]

         II.

         In evaluating requests for sentencing reductions under the 2018 Act, the Court looks to the provisions of 18 U.S.C. § 3582(c)(2), in determining: (i) the substantive factors to be considered and (ii) whether counsel should be appointed in connection with reduction requests. Once a district court imposes a sentence, it has limited authority to modify that sentence. However, a sentence may be modified “to the extent… expressly permitted by statute…” and “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the [United States] Sentencing Commission.” 18 U.S.C. § 3582(c).

         The Fair Sentencing Act of 2010 (“FSA”) was enacted to “restore fairness to Federal cocaine sentencing” and reduce the disparity between defendants convicted of crimes involving cocaine base versus powder cocaine. Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The FSA amended 21 U.S.C. § 841 by increasing the amount of cocaine base necessary to trigger the mandatory minimum sentences provided in the statute. Id. Prior to the FSA, a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) was triggered by violations involving 50 grams or more of a mixture or substance containing cocaine base. The FSA increased the amount of cocaine base needed to trigger that mandatory minimum to 280 grams or more of a mixture or substance containing cocaine base. 21 U.S.C. § 841(b)(1)(A) (Effective: Aug. 3, 2010). The FSA also increased the amount of cocaine base needed to trigger the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B) from 5 grams of cocaine base to 28 grams of cocaine base. 21 U.S.C. § 841(b)(1)(B) (Effective: Aug. 3, 2010).

         After the enactment of the FSA, any violation involving more than 28 grams but less than 280 grams of a mixture or substance containing cocaine base results in a mandatory minimum sentence of five years, or a mandatory minimum of ten years if the violation occurred following a conviction for another drug felony. 21 U.S.C. § 841(b)(1)(B). However, the FSA did not previously apply retroactively to defendants who were sentenced prior to the enactment of the FSA. United States v. Tillman, 511 Fed.Appx. 519, 521 (6th Cir. 2013) (citing Dorsey v. United States, 567 U.S. 260 (2012)).

         The 2018 Act recently made the FSA retroactive. See Pub. L. No. 115-391. As relevant to the present case, Section 404 of the 2018 Act states: “[a] court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.” Id. Therefore, the Court must first determine whether a defendant is eligible under the 2018 Act, and then may, but is not required, to reduce the sentence of defendants who are eligible for relief.

         i. Eligibility ...


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