United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
CATHERINE C. EAGLES, DISTRICT JUDGE.
1996 to early 2000, the defendant Kelby Benjamin was involved
in selling large amounts of crack and powder cocaine.
Pursuant to a bill of information, Doc. 1, he pled guilty to
one count of conspiracy to distribute cocaine hydrochloride
(powder) and in excess of 50 grams of cocaine base (crack).
The longer statutory penalty for the crack cocaine offense
applied, with a statutory minimum of ten years. The guideline
range was 360 months to life, and the Court sentenced Mr.
Benjamin to 360 months in prison.
then, Mr. Benjamin has been before the Court at least five
times: for sentencing after appeal; for resentencing
following the Supreme Court decision in United States v.
Booker, 543 U.S. 220 (2005), when the Court considered
the guidelines on an advisory basis and imposed the same
360-month sentence; on three unsuccessful § 3582(c)(2)
motions for a sentence reduction based on retroactive changes
to the sentencing guidelines; and once on a letter motion
asking that his conviction be evaluated in light of
United States v. Simmons, 649 F.3d 237 (4th Cir.
2011). The drug amount for which he was accountable has been
a centerpiece of all but one of these requests.
now are Mr. Benjamin's second § 2255 motion, Doc.
123, and his motion for a sentence reduction pursuant to the
First Step Act, Doc. 130, along with a couple of related
motions to amend. Docs. 125, Doc. 145. Both substantive
motions revolve around drug amounts.
§ 2255 motion will be denied. It is outside the statute
of limitations, and no exception applies.
Benjamin is eligible for a sentence reduction under the First
Step Act. The Court has considered the complete record and
the arguments of counsel. The Court will grant the motion and
reduce Mr. Benjamin's sentence to 312 months.
OF THE CASE AND CHANGES TO SENTENCING LAW
recap of the history of Mr. Benjamin's travels through
the federal court system would take many pages. A selective
chronology is appended to this opinion, with docket
citations, for reference. The most relevant history is
Guilty Plea and 2004 Sentencing
1996 to early 2000, Mr. Benjamin was involved in selling
large amounts of crack and powder cocaine in and around
Norwood, North Carolina. See Doc. 113 at ¶ 1.
Pursuant to a bill of information, Doc. 1, he pled guilty on
August 7, 2000, to one count of conspiracy, with two objects:
1) to distribute cocaine hydrochloride, commonly known as
“powder, ” and 2) to distribute in excess of 50
grams of cocaine base, commonly known as “crack,
” in violation of 21 U.S.C § 846 (conspiracy),
§ 841(a)(1) (distribution), and § 841(b)(1)(A)
(penalties with drug amounts). See Doc. 6.
offenses, then and now, carry mandatory minimum sentences
when certain amounts are proven beyond a reasonable doubt or
when a defendant pleads guilty to the amount. See
generally 21 U.S.C. § 841; United States v.
Hardnett, No. 3:03cr212, 2019 WL 5445887, at *4-11 (E.D.
Va. Oct. 24, 2019). At the time of Mr. Benjamin's
offense, a defendant convicted of conspiracy to distribute in
excess of 50 grams of crack cocaine faced a ten-year
mandatory minimum sentence, with a maximum sentence of life
in prison, upon conviction. 21 U.S.C. § 841(b)(1)(A)
(Feb. 18, 2000).
calculating the guideline range, the pre-sentence report
suggested that Mr. Benjamin was accountable for at least 2.66
kilograms of crack cocaine and 108 kilograms of powder
cocaine. Doc. 113 at ¶ 20. At the time, the Guidelines
said that a defendant who was accountable for more than 1.5
kilograms of crack cocaine was assessed a base offense level
of 38. U.S. Sentencing Guidelines Manual § 2D1.1(c)
(U.S. Sentencing Comm'n 1998). Larger amounts did not
increase the base offense level, and, consistent with this
guideline, the pre-sentence report suggested a base offense
level of 38. Doc. 113 at ¶ 20.
Benjamin objected to the drug amounts used to calculate his
guidelines. Doc. 46 at 48. At his sentencing hearing, the
Government offered testimony from a co-defendant. The
co-defendant testified that he and Mr. Benjamin bought powder
cocaine from a Mexican source, Doc. 46 at 54-55; that they
bought small amounts of 1-2 ounces every week for a year and
a half and cooked it all into crack, id. at 56-57;
that later, they began buying half kilograms of powder and
converting 10 ounces of each half kilogram (which is roughly
18 ounces) into crack, id. at 58-59; that they did
this every week from late 1998 through May 2000, id.
at 62-63; and that they sold the remaining powder cocaine in
its original powder form. Id. at 64-65.
Benjamin testified. He denied he had been involved in
converting any powder cocaine to crack, Doc. 46 at 86, but
admitted distributing some 38 kilograms of cocaine powder,
see Id. at 90-92, 100, a drug amount that would
result in a base level of 34. U.S.S.G. § 2D1.1(c) (Nov.
see United States v. Benjamin, 153 Fed.Appx. 905,
907 (4th Cir. 2005). He also admitted he obtained and sold a
gram of crack each week during the end of 1997 and early
1998, but he denied he sold crack thereafter. Doc. 46 at 88.
His testimony was inconsistent with his guilty plea to
conspiracy to distribute in excess of 50 grams of crack and
inconsistent with statements Mr. Benjamin made to law
enforcement during debriefing. Doc. 46 at 92-93.
hearing the evidence at the sentencing hearing, the Court
found that based on the credible testimony of a co-defendant,
Mr. Benjamin was accountable for “in excess of 1.5
kilograms of cocaine base, crack, ” Doc. 46 at 110,
115, and found a base offense level of 38. The Court made no
explicit findings during the hearing as to the total specific
amount of crack cocaine for which Mr. Benjamin was
accountable nor as to whether Mr. Benjamin was accountable
for any amount of powder cocaine, apparently because any
additional amount of crack or powder would not have increased
the base offense level, see U.S.S.G. §§
2D1.1(c), 2D1.1(a)(2) (Nov. 1, 1998) (establishing highest
base offense level for drug crimes as 38, absent other facts
not present here). The Statement of Reasons indicates that
the pre-sentence report was adopted with no change relevant
to the drug amount or base offense level. Doc. 159.
sentencing court also decided that two enhancements were
appropriate. Doc. 46 at 111, 113; see Doc. 113 at
¶¶ 26, 27 (adding two levels for being the
“organizer, leader, manager, or supervisor of a
criminal activity” and two levels “for
obstructing or impeding the administration of justice”
by absconding and failing to appear for sentencing). The
Court rejected the proposed two-level enhancement for
possession of a firearm in connection with the charged
offense. Doc. 46 at 110; see Doc. 113 at ¶ 24.
Finally, the Court agreed with the pre-sentence report that
Mr. Benjamin was not entitled to a reduction for acceptance
of responsibility, as he had absconded while awaiting
sentencing. Doc. 46 at 111-12; see Doc. 113 at
on the base offense level of 38 and with the two
enhancements, the Court found that Mr. Benjamin's total
offense level was 42, his criminal history was Level III, and
his guideline range was 360 months to life. Doc. 46 at 113.
The guidelines were mandatory at the time, and the Court
sentenced Mr. Benjamin at the bottom of that guideline range
to a term of imprisonment of 360 months. Id.; Doc.
41 at 2.
result of the decision in United States v. Booker,
Mr. Benjamin's sentence was vacated on appeal. See
Benjamin, 153 Fed.Appx. at 906. The Fourth Circuit also
noted a concern about the drug amount calculation and found
it should be recalculated on remand. Id. at
the resentencing hearing, defense counsel specifically
addressed how the drug amount was calculated. Doc. 69 at 6,
10-11. He also addressed the powder/crack discrepancy in the
guidelines as part of a request for a variance. Id.
resentencing court made the same guideline calculation, and
it again adopted the pre-sentence report with no change as to
drug amount or base offense level. Doc. 110. The Court
With respect to the quantity determination, the Court as well
had sufficient facts before it at the time of the original
sentence in this case to determine that the defendant should
have attributed to him more than 1.5 kilograms of cocaine
base, crack, based upon the defendant's own admission of
the level at which he himself was dealing in cocaine or
cocaine base, crack, and other evidence presented by the
Government at the time. The Court will renew and adopt its
previous findings with respect to the quantity and find the
Defendant did, in fact, have responsibility for more than 1.5
kilograms of cocaine base, crack.
at 20. The Court found the same base offense level of 38,
added the same two enhancements for a total offense level of
42, found the same guideline range, and, after hearing from
counsel, determined in its discretion that a
bottom-of-the-guideline sentence of 360 months was
appropriate. See Doc. 69 at 20-21, 28. The Fourth
Circuit affirmed on appeal. Doc. 71.
2007 Retroactive Amendments
2007, the Sentencing Commission changed the drug amount
guideline provisions to reduce the disparity in the way crack
and powder cocaine are treated,  and it made those changes
retroactive. United States v. Dunphy, 551 F.3d 247,
249 (4th Cir. 2009). Amendments 706 and 711 “raised the
minimum crack cocaine quantity necessary to justify a base
offense level of 38 from 1.5 to 4.5 kilograms.”
United States v. Mann, 709 F.3d 301, 304 (4th Cir.
2013). In 2010, Mr. Benjamin sought a sentence reduction
based on the 2007 Amendments, pursuant to 18 U.S.C. §
3582(c)(2). Doc. 73.
Government and appointed counsel acknowledged that Mr.
Benjamin's advisory guideline range did not change as a
result of the 2007 Amendments. Docs. 76, 77. The Court
agreed. Doc. 79. The Court used a base offense level of 36,
Doc. 79, which was appropriate under Amendment 706 for more
than 1.5 kilograms but less than 4.5 kilograms of crack.
See U.S.S.G. supp. to app. C, amend. 706, 713 (Nov.
1, 2008); United States v. Fenwick, No. CRIM. PJM
03-0484, 2011 WL 1630281, at *1 n.2 (D. Md. Apr. 29, 2011).
With enhancements, he had a total offense level of 40. Doc.
79. His Criminal History level did not change from level III.
Id. His guideline range remained 360 months to life.
the Court denied Mr. Benjamin's motion to reduce his
sentence, since the retroactive amendments did “not
have the effect of lowering the guideline range, ” and
Mr. Benjamin therefore was not eligible for a sentence
Doc. 79. Mr. Benjamin appealed, Doc. 80, but his
appeal was dismissed by the Fourth Circuit for failure to
prosecute. Order of dismissal, United States v.
Benjamin, No. 11-630 (1:00-cr-200-JAB-1), Doc. 9 (4th
Cir. July 6, 2011); Doc. 85.
Fair Sentencing Act
2010, Congress passed the Fair Sentencing Act. Pub. L. No.
111-220, 124 Stat. 2372. Among other things, the Act reduced
the mandatory minimum sentence for conspiracy to possess 50
grams or more of cocaine base (crack) from ten years to five
years. See Id. at sec. 2(a); 21 U.S.C. §§
841, 846. The Act applied only to crimes committed on or
after its effective date, and this statutory change did not
affect Mr. Benjamin. See United States v. Bullard,
645 F.3d 237, 249 (4th Cir. 2011).