United States District Court, M.D. Georgia, Albany Division
W. LOUIS SANDS, Chief District Judge.
Before the Court is Defendant Darren Cantrell Miller's Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, Miller's motion is DENIED.
I. Procedural Background
Darren Cantrell Miller is serving a 272-month prison sentence for possession with intent to distribute more than five grams of cocaine base, aggravated assault with a deadly weapon against a federal officer, and brandishing a firearm in furtherance of a crime of violence. He moves for a sentence reduction under 18 U.S.C. § 3582(c) based on the Fair Sentencing Act of 2010 (FSA) and related amendments to the United States Sentencing Guidelines. The Parties agree that Miller is eligible for a sentence reduction. They disagree on whether a reduction is justified under 18 U.S.C. § 3553(a).
As background, Miller pleaded guilty on June 1, 2006, to a three-count superseding information. Count One charged Miller with possessing with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Count Two charged him with assaulting a federal officer in violation of 18 U.S.C. §§ 111(1) and (b). Count Three charged him with possessing a firearm in furtherance of a crime of violence-namely, the crime charged in Count Two-in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (ii), and 18 U.S.C. § 2.
As part of a plea agreement, Miller stipulated to the following facts: On June 10, 2005, agents of the Sumter County Drug Task Force obtained information from a confidential informant that Miller and others were packaging and selling illegal drugs. Based on this information, agents executed a search warrant at the identified residence, where they found eight tablets of ecstasy, 34.39 grams of crack cocaine, 12.9 grams of cocaine hydrochloride powder, and 211.3 grams of marijuana. Police also found a handgun. When the agents arrived at the residence, Miller was outside and fled on foot. He was soon captured. Miller stipulated he possessed these substances.
On July 14, 2005, agents executed a warrant for Miller, who had been released on bond but could not be located. The agents visited a residence in Plains, Georgia, identified as Miller's hideout. A lessee informed the agents that Miller had in fact been staying there. A consensual search of the residence revealed 14.7 grams of crack cocaine. Miller also stipulated to possessing these drugs.
On September 6, 2005, law enforcement agents received information that Miller was in Montezuma, Georgia, in a trailer home. Agents knocked on the door to the trailer and announced their presence. Deputy United States Marshal Reggie Hurst, a white male, shouted, "Police. Come out with your hands up!" Miller did not respond. Agent Hurst then entered the trailer and "saw [Miller] peeking around the corner pointing a gun at him" as if attempting to get a good shot. Miller fired his weapon, and the agent fired back. Miller fired the gun several times while aiming toward Agent Hurst. Neither Hurst nor Miller was shot. Agents arrested Miller and found his gun had misfired. On the way to the jail, Miller tried to talk to a local deputy, who told Miller he didn't want to talk to him because he (Miller) had tried to kill him. In response, Miller said he wasn't trying to shoot the deputy; he "was trying to shoot the white guy." After Miller entered a guilty plea, the United States Probation Department prepared a presentence investigation report (PSR). The Court adopted the PSR during sentencing. Using the marijuana equivalency tables, the PSR held Miller accountable for 987.59 kilograms of marijuana, resulting in a base offense level of 30. The PSR increased his offense level by two for use of a dangerous weapon. The probation department calculated an offense level of 31 for count two. Using the greater of the two offense levels and adding two levels under U.S.S.G. § 3D1.4, the PSR calculated Miller's offense level at 34, reduced to 31 for acceptance of responsibility. An offense level of 31, with Miller's criminal history category of IV, resulted in a guideline range of 151 to 188 months for Counts One and Two.
At sentencing, the Court sentenced Miller to 188 months in prison for Counts One and Two, followed by 84 months to run consecutive for Count Three. In sentencing Miller to the high end of his guideline range, the Court considered his history and the circumstances of the crime. The Court explained that "[i]t would have been a serious situation for you if one of those officers had gotten killed at the scene when you were surrounded by officers, announcing who they were, and you were in a trailer, there was nowhere for you to go, but you still sat there with a pistol that fortunately misfired." The Court also noted that Miller had a "tendency to take off whenever the police want[ed] to stop" him.
Before sentencing Miller, the Court heard argument from counsel on whether it should upward depart. The Court declined to upward depart, reasoning that the Court "has an adequate basis on which to sentence the defendant without the necessity of doing so.... But, for the record, the Court is agreeing that it could justify it if the Court would so determine that it needed to do so, but [th]e Court doesn't believe it needs to do so in light of the range that's available to the Court."
Miller appealed his conviction, and the Eleventh Circuit affirmed.
On August 3, 2010, President Barack Obama signed into law the FSA, which amended the penalty provisions of 21 U.S.C. § 841 by increasing the total amount of crack cocaine necessary to trigger mandatory five-year sentences from five to twenty-eight grams or more, 21 U.S.C. § 841(b)(1)(B)(iii), and ten-year sentences from fifty to two-hundred-eighty grams or more, § 841(b)(1)(A)(iii). FSA of 2010, Pub. L. No. 111-220, § 2(a)(1)-(2), 124 Stat. 2372, 2372 (codified as amended at 21 U.S.C. § 841(b)(1)(B)(iii) (2010)). This amendment, in effect, reduced the crack cocaine-powder cocaine sentencing ratio from 100-to-1 to 18-to-1. United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010).
In conformity with the FSA's mandate to the U.S. Sentencing Commission (hereinafter "U.S.S.C." or "Commission") to "promulgate... as soon as practicable... conforming amendments to the Federal sentencing guidelines... [that are] necessary to achieve consistency with other guideline provisions and applicable law, " FSA, Pub. L. No. 111-220, § 8(1)-(2), 124 Stat. 2372, 2374, the U.S.S.C. issued emergency temporary, then permanent, amended guidelines, effective November 1, 2010, that reduced the base offense levels for various quantities of crack cocaine, Temporary Emergency Amendment to Sentencing Guidelines and Commentary, 75 Fed. Reg. 66, 188-02, 66, 189-02 (2010); see also U.S.S.G. app. C, amend. 750. These amendments became permanently retroactive on November 1, 2011. Submission to Congress of Amendments to the Sentencing Guidelines Effective November 1, 2011, 76 FR 24960-01, 24963-01 (2011).
Of the amendments, Amendment 750 to the Sentencing Guidelines allows a defendant to seek, and a court to grant, under 18 U.S.C. § 3582, a reduction in his sentence if the sentence was based on the § 2D1.1 offense levels for crack cocaine offenses, which the Commission lowered in conformity with the FSA. See U.S.S.G. § 2D1.1. With the assistance of counsel, Miller moved for a sentence reduction under the FSA and Amendment 750. The United States opposes a reduction on the ground that "Miller's conduct at the time of his arrest, ...