United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART MOTION FOR
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Terry Ezell's
Motion for Resentencing. Dkt. #148. Mr. Ezell requests a new
sentencing hearing pursuant to the First Step Act of 2018.
Id. The government opposes this request. Dkt. #155.
indictment in this case charged Mr. Ezell with possession of
5 grams or more of cocaine base with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii); carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. §
924(c); and possessing a firearm as an Armed Career Criminal,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Dkt. #79. On March 10, 2008, following a bench trial, this
Court acquitted Mr. Ezell of Count 2, but convicted him of
Counts 1 and 3. Dkt. #108. At trial, Mr. Ezell signed a
stipulation admitting that the drugs found in his car's
center console included 42.4 grams of cocaine base in the
form of crack cocaine. Dkt. #104.
on the amount of crack cocaine found, Mr. Ezell faced a
five-year mandatory minimum and forty-year maximum prison
term for Count 1. 21 U.S.C. § 841(b)(1)(B)(iii) (2005).
Because the Government alleged he had three or more
convictions constituting “violent felonies” as
defined in 18 U.S.C. § 924(e)(2)(B), Mr. Ezell also
faced a mandatory minimum fifteen-year and maximum life term
of imprisonment as an Armed Career Criminal on Count 3. 18
U.S.C. § 924(e)(1). At sentencing, this Court determined
that the prior second-degree assault and burglary convictions
were “violent felonies” for purposes of the ACCA,
and that the assaults and second-degree burglary involving a
residence were also “crimes of violence” for
purposes of the Career Offender Guideline, USSG § 4B1.1.
Dkt. #130 at 28-33. Applying the Career Offender Guideline,
this Court then found Mr. Ezell's total offense level to
be 34, his Criminal History Category VI, with a resulting
advisory Guidelines range of 262-327 months. Dkt. #130 at 33.
This Court sentenced Mr. Ezell to serve two concurrent
262-month prison terms, one for each count. Dkt. #123.
time, the Anti-Drug Abuse Act of 1986 provided for a
sentencing range of up to 20 years if the offense involved
less than 5g or an unspecified amount of crack cocaine, and 5
to 40 years if the offense involved 5 grams to 50 grams of
crack cocaine. 21 U.S.C. § 841(b) (1996). On August 3,
2010, Congress enacted the Fair Sentencing Act. Section 2
altered the penalty structure for cocaine base offenses. For
offenses involving less than 28g or an unspecified amount of
cocaine base, the sentencing range is now up to 20 years. 21
U.S.C. § 841(b). On December 21, 2018, Congress enacted
the First Step Act of 2018. Section 404 made retroactive the
portions of the Fair Sentencing Act that lowered the
statutory penalties applicable to certain offenses involving
cocaine base. First Step Act, § 404(b).
Ezell has now filed this Motion for reduction in sentence
based on Section 404 of the First Step Act. He is housed at
the Federal Correction Institution at Sheridan, Oregon, and
has a projected release date of April 2, 2024.
Eligibility for Sentencing Reduction
404 states that the provisions of the First Step Act apply to
“Covered Offenses, ” defined as a
“violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act of 2010... that was committed before
August 3, 2010.” First Step Act, § 404(a).
However, “[c]ourts retain discretion to deny motions of
otherwise eligible offenders, and the First Step Act does not
‘require a court to reduce any sentence.'”
United States v. Mason, No. 2:04-CR-00209-RHW-1,
2019 U.S. Dist. LEXIS 95657, 2019 WL 2396568, at *2 (E.D.
Wash. June 6, 2019) (quoting First Step Act, § 404(c)).
Government first argues that Mr. Ezell is not eligible for
sentencing reduction because the amount of cocaine in
question places this case outside those where the sentencing
range was modified by the First Step Act. Mr. Ezell committed
the offense of Possession of Cocaine Base in the Form of
Crack Cocaine with Intent to Distribute before August 3,
2010. He was charged in the indictment with possessing five
grams or more. See Dkt. #79. Section 2 of the Fair
Sentencing Act modified the statutory penalties for that
offense, reducing the sentencing range from 5 to 40 years to
imprisonment for up to 20 years. Although the government
points to the fact that Mr. Ezell stipulated to possessing
42.4 grams, Mr. Ezell is correct that “[t]here is no
express language in the four corners of § 404 of the
First Step Act which limits eligibility based on
stipulations, admissions, findings or determinations
regarding the amount of crack cocaine in the underlying
offense.” Dkt. #148 at 10. Mr. Ezell argues that under
the principles set forth in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99 (2013), “the statutory minimum and maximum
penalties must be based on the specific offense charged in
the indictment and proven beyond a reasonable doubt at trial,
and not based on underlying facts established by some other
means, such as at sentencing.” Dkt. #148 at 12.
Accordingly, although Mr. Ezell may have stipulated to
possessing an amount of cocaine that would lead to a sentence
not modified by the First Step Act, he was only charged in
the indictment with an amount that would lead to a sentence
that was so modified. The Court has reviewed the law cited by
both parties and determined that, given the facts of this
case, the Court has the authority to impose a reduced
sentence for Count One under the First Step Act. See,
e.g., United States v. Smith, 379 F.Supp.3d 543, 546-47
(W.D. Va. May 13, 2019); United States v. Dodd, 372
F.Supp.3d 795, 797 (S.D. Iowa 2019); United States v.
Pierre, 372 F.Supp.3d 17, 20-22 (D.R.I. 2019); see
also Dkt #157 at 3-4 (citing cases).
Government suggests Mr. Ezell's second concurrent
sentence for possession of a firearm renders moot a
resentencing on the first count alone. However, “[w]hen
a defendant is sentenced on multiple counts and one of them
is later vacated on appeal, the sentencing package comes
‘unbundled.'” United States v.
Davis, 854 F.3d 601, 606 (9th Cir. 2017) (citing
United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184
(9th Cir. 2000)). Under these circumstances, vacating the
sentence is required in order to allow the district court
“to put together a new package reflecting its
considered judgment as to the punishment the defendant
deserve[s] for the crimes of which he . . . [remains] . . .
convicted.” Id. “When a district court
imposes multiple sentences on a defendant, the degree to
which each offense contributes to the total sentence is
usually affected by the other offenses of conviction. Thus,
remand of all sentences is often warranted, ” even when
only one conviction is vacated. United States v.
Jayavarman, 871 F.3d 1050, 1066 (9th Cir. 2017) (quoting
United States v. Evans-Martinez, 611 F.3d 635, 645
(9th Cir. 2010)).
Court finds that Mr. Ezell is eligible for resentencing in
this case. Having reviewed the relevant briefing and the
remainder of the record, the Court hereby finds and ORDERS
that Defendant Terry Ezell's Motion for Resentencing
(Dkt. #148) is GRANTED IN PART as stated above. The Court
DIRECTS the parties to submit briefing on the remaining
question of whether, and to what extent, Mr. Ezell's
sentence should be reduced. This briefing is due no later
than twenty-one ...