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United States v. Benjamin

United States District Court, M.D. North Carolina

November 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KELBY DEVONTA BENJAMIN, Defendant.

          MEMORANDUM OPINION AND ORDER

          CATHERINE C. EAGLES, DISTRICT JUDGE.

         From 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.

         Since 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.

         Pending 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.

         His § 2255 motion will be denied. It is outside the statute of limitations, and no exception applies.

         Mr. 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.

         HISTORY OF THE CASE AND CHANGES TO SENTENCING LAW

         A full 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 recited here.

         The Guilty Plea and 2004 Sentencing

         From 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.

         Drug 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).

         In 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.

         Mr. 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.

         Mr. 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. 1, 1998)[1]; 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.

         After 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.

         The 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 ¶ 30.

         Based 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.

         The First Appeal

         As a 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 908.[2]

         The 2006 Resentencing

         During 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. at 10-11.

         The 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 stated:

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.

         Doc. 69 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.

         The 2007 Retroactive Amendments

         In 2007, the Sentencing Commission changed the drug amount guideline provisions to reduce the disparity in the way crack and powder cocaine are treated, [3] 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.

         The 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. Id.

         Therefore, 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 reduction.[4] 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.

         The Fair Sentencing Act

         In 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).

         The 2011 ...


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