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United States v. Brown

United States District Court, D. Minnesota

October 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LEVARGES LENARD BROWN, Defendant.

          Michael L. Cheever, Assistant United States Attorney, for plaintiff.

          Robert H. Meyers, Assistant Federal Defender, for defendant

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO REDUCE SENTENCE

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant Levarges Lenard Brown is serving a 262-month sentence after pleading guilty to a crack offense in 2002. Brown's sentence was determined under sentencing guidelines, effectively mandatory at the time, which contained a large disparity between crack and powder cocaine. Brown brings this motion seeking a sentence reduction pursuant to Section 404 of the First Step Act. Because Brown has already served more than 210 months of his sentence, and because the Court finds that this period of time constitutes a sufficient sentence for his crime, the Court will grant Brown's motion. The Court will reduce Brown's sentence to time served and will reduce Brown's term of supervised release to four years. The Court will require up to four months in a residential reentry center as a condition of Brown's supervised release.

         BACKGROUND

         In 2002, Brown pleaded guilty to one count of possession with the intent to distribute approximately 108 grams of crack in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). (Docket No. 40.) The Court determined that Brown qualified as a career offender, and that his sentencing guidelines base offense level was 37. (Docket No. 43.) The Court then applied a three-level decrease for acceptance of responsibility, bringing the total offense level to 34. (Id.) The Court found that Brown had a criminal history category of VI, and as a result, found that the applicable guideline range was 262-327 months. (Docket No. 44.) The guidelines were effectively mandatory at the time of Brown's 2003 sentencing, and the Court determined that it could not make the necessary findings to grant a departure. (Docket Nos. 43-44.) The Court sentenced Brown to a term of 262 months, the bottom of the guidelines range, and 5 years of supervised release. (Id.) Brown appealed the denial of the downward departure to the Eighth Circuit, which affirmed his sentence. United States v. Brown, 94 Fed.Appx. 435 (8th Cir. 2004).

         Brown has moved several times for sentence reductions. In 2005 and 2006, Brown filed motions to vacate his sentence based on ineffective assistance of counsel, alleging variously that counsel failed to take into account Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005) for Brown's sentencing and appeals. (Docket Nos. 58, 68.) The Court denied these motions. (Docket Nos. 59, 70.) The Court and the Eighth Circuit similarly denied Brown's requests for a certificate of appealability. (Docket Nos. 64, 67, 69.)

         Brown also moved twice for a sentence reduction based on amendments to the guidelines. (Docket Nos. 72, 79, 88.) In each case, the Court found that Brown was not eligible for a sentence reduction due to his career offender status. (Docket Nos. 82, 93.) The Eighth Circuit affirmed. (Docket Nos. 86, 97.) The Eighth Circuit also denied Brown's 2016 petition to file a successive § 2255 motion challenging his career offender status. (Docket No. 97.)

         Brown now moves for a reduction in sentence under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). The government supports the motion in part and opposes it in part.

         DISCUSSION

         I. FAIR SENTENCING ACT AND FIRST STEP ACT

         After Brown was sentenced, Congress enacted the Fair Sentencing Act of 2010, which increased the amount of crack cocaine needed to trigger certain statutory mandatory minimums. See 124 Stat. 2372 (codified at 21 U.S.C. § 841(b)(1)). A 10-year mandatory minimum sentence for offenses involving crack cocaine is now triggered by 280 grams, not 50 grams. See Id. (amending 21 U.S.C. § 841(b)(1)(A)(iii)). However, the Fair Sentencing Act was not retroactive to sentences imposed before its enactment. See United States v. Orr, 636 F.3d 944, 958 (8th Cir. 2011).

         In 2018, Congress enacted the First Step Act, which allows a sentencing court the discretion to “impose a reduced sentence” on a defendant who committed a “covered offense” as if the Fair Sentencing Act “were in effect at the time the covered offense was committed.” See First Step Act of 2018, Pub. L. No. 115-391, §404, 132 Stat 5194, 5222 (2018). A “covered offense” is defined by the First Step Act as an offense (1) whose penalty was modified by the Fair Sentencing Act and (2) that was committed before passage of the Fair Sentencing Act. Id.

         Under 18 U.S.C. § 3582(c), a “court may not modify a term of imprisonment once it has been imposed, ” with some exceptions. One such exception is when a sentence modification is “expressly permitted by statute.” 18 U.S.C. § 3582(c)(1)(B). As such, the Court may modify Brown's term of imprisonment under 18 U.S.C. § 3582(c) because it is expressly permitted by the First Step Act.[1] A sentencing reduction under 18 U.S.C. § 3582(c) requires the Court to consider the factors set out in 18 U.S.C. § 3553(a), including the relevant guideline range, the Sentencing ...


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