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United States v. Tracy

United States District Court, D. Maine

March 28, 2019




         After a defendant pleaded guilty, but before his sentencing, Congress passed the First Step Act which included various sentencing reforms. The defendant argues he is eligible under one of the First Step Act's sentencing reform provisions, namely the more lenient criteria for application of the safety valve reduction, and the Government agrees. Based on different applicability language in the First Step Act, however, the Court concludes that the new safety valve provisions do not apply to defendants like Eric Tracy who pleaded guilty before December 21, 2018 and are still awaiting the imposition of sentence.

         I. BACKGROUND

         A. Procedural Background

         On July 19, 2018, Eric Tracy appeared before the Court, waived his right to indictment and pleaded guilty to a single count information alleging that between January 1, 2016, and about February 1, 2017, he “knowingly and intentionally conspired together and with one another to distribute and possess with the intent to distribute, controlled substances including . . . heroin . . . [and] cocaine base . . . in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b)(1)(C).” Information (ECF No. 4); Waiver of Indictment (ECF No. 3); Min. Entry (ECF No. 12).

         Mr. Tracy had entered into a non-binding plea agreement with the Government, which was presented to the Court at the guilty plea. Plea Agreement (ECF No. 8). At the end of hearing held pursuant to Federal Rule of Criminal Procedure 11, the Court accepted his guilty plea as tendered and ordered the preparation of a Presentence Investigation Report (PSR). Min. Entry (ECF No. 12).

         After the completion of the PSR, the Court held a presentence conference of counsel on October 29, 2018 and scheduled a sentencing hearing for December 18, 2018. Min. Entry (ECF No. 21). On December 10, 2018, Mr. Tracy moved to continue the sentencing hearing, which the Court granted, and Court reset the sentencing hearing for January 10, 2019. Notice of Hr'g (ECF No. 25). The Court held a second presentence conference on January 10, 2019. Min. Entry (ECF No. 30). At the presentence conference, counsel presented an issue as to whether the new safety valve provisions of the First Step Act, which became law on December 21, 2018, applied to Mr. Tracy. The Court ordered the parties to file sentencing memoranda.

         On February 1, 2019, Mr. Tracy filed a sentencing memorandum arguing that he meets all the criteria for the First Step Act's expanded safety valve provisions and that the new provisions apply to him even though he pleaded guilty before its enactment. Mem. In Aid of Sentencing at 1-8 (ECF No. 32) (Def.'s Mem.). On February 8, 2019, the Government filed a sentencing memorandum agreeing with Mr. Tracy's conclusion in light “of the meaning of the phrase ‘conviction entered' and the purpose of the Act . . ..” Gov't's Mem. in Aid of Sentencing at 1 (ECF No. 33) (Gov't's Mem.)

         B. The Presentence Investigation Report

         The Probation Office (PO) prepared an initial and revised version of the PSR in the fall of 2018. However, after the safety valve issue arose, the PO revised the PSR on January 16, 2019. PSR at 1. The PO calculated the following total offense level under the Guidelines:

1) Base Offense Level: U.S.S.G. §§ 2D1.1(a)(5), 2D1.1(c)(5): 30
2) Acceptance of Responsibility: U.S.S.G. § 3E1.1: - 3
3) Total Offense Level: 27

Id. at 6-7. The PO calculated Mr. Tracy's criminal history to equal Category III. Id. at 9. For a total offense level of twenty-seven and a criminal history category of III, the PO calculated “the guideline range for imprisonment at 87 to 108 months, ” the fine range from $25, 000 to $1, 000, 000, the period of supervised release from three years to life, and the imposition of a $100 special assessment. Id. at 14-16.

         However, in the revised PSR, the PO observed that if the First Step Act were applicable to Mr. Tracy, he would qualify for safety valve treatment under U.S.S.G. § 2D1.1(c)(18) and § 5C1.2. Id. at 16. The PO wrote that, if the safety valve applied, it would reduce Mr. Tracy's guideline sentence range to seventy to eighty-seven months. Id.


         A. Eric Tracy's Memorandum

         Mr. Tracy observes that under his original PSR there was no indication he was eligible for a two-level reduction under the United States Sentencing Guideline's (U.S.S.G.) § 2D1.1(b)(18) pursuant to the Guideline's safety valve provision, U.S.S.G.§ 5C1.2(1), “presumably because [he] has more than one criminal history point.” Def.'s Mem. at 1 & n.1.[1] However, after the passing and signing of the First Step Act, Mr. Tracy points out that “Probation Office recommended . . . the Court impose a variant sentence, reducing Mr. Tracy's offense level by two levels to reflect the intent of the new law[, ]” because the First Step Act amended and eased the requirements of 18 U.S.C § 3553(f), which U.S.S.G. § 5C1.2(1) incorporates to determine whether a defendant is eligible under the Guideline's safety provision. Id. at 1-2. Mr. Tracy notes the First Step Act's section expanding the applicability of the safety valve, § 402, provides:

The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

Id. at 4 (citing Pub. L. No. 115-391 § 402(b)). Mr. Tracy explains the First Step Act does not define “conviction entered” and neither do the Sentencing Guidelines, and thus, “it is not clear if a person's conviction is entered upon his plea, or not until he is sentenced.” Id.

         Nevertheless, Mr. Tracy points to Rule 11 of the Federal Rules of Criminal Procedure which “clearly distinguishes between pleas before sentencing which can be withdrawn for fair and just reasons, and pleas post-sentencing, which cannot be withdrawn for any reason[]” as indicating that a conviction is not entered until a person is sentenced. Id. at 5. While acknowledging some differences, Mr. Tracy says the Court of Appeals for the First Circuit's decision in United States v. Douglas, 644 F.3d 29 (1st Cir. 2011) is helpful because “Mr. Douglas was sentenced after that, and received the benefit of the Fair Sentencing Act even though he had pleaded guilty prior to the law going into effect.” Id.

         Since the First Step Act's amendments are statutory, and the Sentencing Commission has not yet made any corresponding changes to the Sentencing Guidelines to reflect the provisions of the Fair Sentencing Act, Mr. Tracy admits “as a matter of proper guideline application, the Court could not, at this time, award Mr. Tracy the two-level safety valve reduction at § 2D1.1 . . ..” Id. But he says, pursuant to § 3553(a), the Court could grant a variance from the guidelines. Id. at 6. As an alternative, Mr. Tracy asserts the Court could delay his sentencing and wait for the United States Sentencing Commission to alter to the guidelines to reflect the First Step Act's amendments. Id. at 6. Mr. Tracy concludes by requesting “the Court impose a variant sentence in this matter, reducing the offense level by two levels to reflect legislature's desire to reduce sentences for qualifying individuals.” Id. at 7.

         B. The Government's Memorandum

         The Government agrees that Mr. Tracy should receive a two-level downward variance. Gov't's Mem. at 1. Like Mr. Tracy, the Government acknowledges “[i]t is not clear from the text of Section 402 . . . whether a defendant found guilty before December 21, 2018 but whose judgment of conviction was or is entered on or after that date may benefit from the new safety valve rules.” Id. at 2. The Government asserts that while the First Step Act's legislative history fails to provide a clear answer, two Supreme Court cases, Deal v. United States, 508 U.S. 129 (1993) and Dorsey v. United States, 567 U.S. 260 (2012), provide “plausible interpretations.” Id. at 2-3. The Government says while neither Deal or Dorsey provides definite answers, because the intent of the First Step Act in part is to provide more lenient sentences to non-violent drug-trafficking defendants, “the phrase ‘conviction entered' is best interpreted as ‘judgment of conviction entered,' such that any defendant not yet sentenced on December 21, 2018, should benefit from the Act's amended safety-valve criteria.” Id. at 3 (citing Douglas, 644 F.3d at 45 (“Of course, if Congress intended the new, lower penalties to apply, the defendant not yet sentenced is ordinarily going to be entitled to their benefit”)).

         The Government argues that interpreting “conviction entered” to include defendants who have pleaded guilty, but have not yet been sentenced, is supported by significant practical and policy considerations. Id. The Government says if defendants in Mr. Tracy's situation were to seek to withdraw their guilty pleas under Federal Rule of Criminal Procedure 11(d), “the Government [could] insist that the Act precludes those defendants from benefitting from the expanded safety-valve provisions, [because] it likely would have to oppose these motions on the theory that permitting withdrawal for the purpose of obtaining a new ‘conviction' would undermine Congress's intent.” Id. at 3-4 (citations omitted).

         The Government asserts Mr. Tracy meets all the amended criteria of § 402 of the First Step Act. Id. at 4. The Government states § 402 only amended § 3553(f), and not U.S.S.G. § 5C1.2, and “there is no applicable statutory mandatory minimum term of imprisonment implicated in [Mr. Tracy's] case.” Id. Instead of delaying Mr. Tracy's sentencing to allow the Sentencing Commission to amend the guidelines, the Government says it “has no objection to Court varying downward two levels in this case to ensure that the defendant receives the benefit of the anticipated amendment[, ]” but asks, if the Court imposes the variance, that it instruct Mr. Tracy that he cannot request a further two-level reduction under the safety valve provision once the Sentencing Commission amends the Guidelines. Id. at 5.


         A. The Safety Valve ...

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