United States v. Pierre Stark

Filing

OPINION FILED - THE COURT: William Jay Riley, Diana E. Murphy and Lavenski R. Smith AUTHORING JUDGE:Diana E. Murphy (UNPUBLISHED) [4455613] [15-3760, 15-3844]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3760
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pierre Starks, also known as Pep
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 15-3844
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pierre Starks, also known as Pep
lllllllllllllllllllll Defendant - Appellant
____________
Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Appellate Case: 15-3760

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Date Filed: 10/05/2016 Entry ID: 4455613

Submitted: September 19, 2016
Filed: October 5, 2016
[Unpublished]
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Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.
Pierre Starks pled guilty in 2007 to conspiracy to distribute and possess with
intent to distribute powder cocaine, crack cocaine, ecstacy, and marijuana. The
district court1 sentenced him to 188 months imprisonment. In 2014 Starks moved for
a sentence reduction based upon amendment 782 to the sentencing guidelines which
had reduced base offense levels for crimes involving crack cocaine. The district court
denied the motion. Starks appeals, and we affirm.
I.
In 2006 a grand jury returned a four count indictment against Starks. Count I
charged him with conspiracy to distribute and possess with intent to distribute powder
cocaine, crack cocaine, ecstacy, and marijuana. Count II charged Starks with
distribution of more than 50 grams of crack cocaine. In 2007 Starks was charged in
a separate indictment with conspiracy to distribute and possess with intent to distribute
powder cocaine and marijuana.
Starks pled guilty in a consolidated plea agreement to Counts I and II of the
2006 indictment and to the distribution charge in the 2007 indictment. The plea also
contained a non binding sentencing recommendation under Fed. R. Crim. P.
1

The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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11(c)(1)(B) which recommended a base offense level of 34 under USSG § 2D1.1(3)
(2006) because "the quantity of drugs for which the defendant is accountable with
respect to both cases, including relevant conduct, calculated in terms of cocaine is not
less than 15 kilograms and not more than 50 kilograms." The agreement went on to
recommend a two level enhancement under USSG § 2D1.1(b)(1) because Starks
possessed a gun as part of his drug trafficking offense and a three level reduction
under USSG § 3E1.1 for acceptance of responsibility, making a total recommended
offense level of 33.
The presentence report agreed with the parties' recommended total offense
level. The report noted that Starks' conduct relating to the 2006 indictment involved
"approximately six kilograms of cocaine, 216.29 grams of cocaine base, [and] 324.46
grams (1,077 pills) of Ecstacy." The report did not indicate the precise amounts of
narcotics attributable to Starks with respect to the 2007 indictment, but stated that he
had been involved in the distribution of "multi-kilogram quantities of cocaine and
marijuana." The district court adopted the presentence report's findings, determined
that Starks' total offense level was 33, decided that his criminal history category was
four, and then imposed a sentence at the very bottom of the guideline range of 188 to
235 months imprisonment.
In 2009 Starks moved for a sentence reduction under 18 U.S.C. § 3582(c)(2)
based in part upon amendment 706 to the sentencing guidelines. This amendment
provided a two level reduction in the base offense level for crack cocaine offenses.
The amendment also reduced the marijuana equivalency rate for crack cocaine, which
is used when multiple controlled substances are involved in an offense. USSG §
2D1.1 app. n.10 (2006). In such a case, courts are directed to "convert each of the
drugs to its marihuana equivalent, add the quantities, and look up the total in the Drug
Quantity Table to obtain the combined offense level." Id. The district court applied
amendment 706 to reduce Starks' base offense level to 32. After then applying a two
level firearm enhancement and a three level acceptance of responsibility reduction, the
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court found his total offense level to be 31 and resentenced him to the bottom end of
the 151 to 188 month guideline range.
In 2011 Starks filed another motion for a reduction pursuant to amendment 750.
Amendment 750 to the sentencing guidelines provided for another two level reduction
in the base offense level for crack cocaine offenses. The district court denied Starks'
motion after concluding that he was not eligible for a reduction because his "base
offense level under the guidelines was based on a quantity of cocaine rather than
cocaine base." Although the district court recognized that the reduction under
amendment 706 "was in error," his sentence remained at the reduced level of 151
months imprisonment. Starks did not appeal this order. The following year he moved
for another sentence reduction under amendment 750. The district court denied the
motion after again concluding that his "sentence was based on powder, not crack,
cocaine." Starks again did not appeal.
In 2014 Starks filed a fourth motion for a sentence reduction, this time arguing
that amendment 782 to the sentencing guidelines had reduced his base offense level.
Amendment 782 reduced base offense levels by two for crimes involving crack
cocaine, powder cocaine, and other controlled substances. The district court decided
that amendment 782 did apply to Starks because his sentence was based on powder
cocaine. Under amendment 782, the base offense level is 32 for offenses involving
15 to 50 kilograms of powder cocaine. With that base offense level, a two level
enhancement for possession of a firearm, and a three level acceptance of responsibility
reduction, Starks' total offense level was set at 31. This resulted in a guideline range
of 151 to 188 months. Since Starks' sentence had already been set at the bottom of
this guideline range due to an incorrect reduction under amendment 706, the district
court decided that no reduction was warranted under amendment 782.
Twenty days after the fourteen day deadline set by Fed. R. App. P.
4(b)(1)(A)(i), Starks appealed the denial of his motion for a sentence reduction based
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on amendment 782. His notice of appeal was filed within the extended filing deadline
set by Fed. R. App. P. 4(b)(4), however, which allows a district court to extend the
fourteen day notice of appeal deadline "[u]pon a finding of excusable neglect or good
cause." We thus remanded the question of whether Starks' late notice of appeal was
the result of excusable neglect or good cause. See United States v. Starks, – F.3d –,
2016 WL 4446112 (8th Cir. Aug. 24, 2016). On remand the district court found that
the delay was the result of excusable neglect or good cause.
II.
Starks argues that his base offense level should be 30 rather than 32 because the
district court erroneously found that his original sentence was based on powder
cocaine. Starks asserts that he was originally sentenced under the marijuana
equivalency tables based on the quantities of narcotics his presentence report
attributed to the 2006 indictment. The quantities listed in that report were six
kilograms of powder cocaine, 216.29 grams of crack cocaine, and 324.46 grams of
ecstasy. Under the marijuana equivalency tables for amendment 782, these drug
quantities would be equivalent to 2,134 kilograms of marijuana and a base offense
level of 30.
While ruling on Starks' motion for a sentence reduction under amendment 750,
the district court determined that his reduction under amendment 706 had been made
in error because "his base offense level under the guidelines was based on a quantity
of cocaine rather than cocaine base." In a subsequent order the district court again
noted that Starks' "sentence was based on powder" cocaine. Starks did not appeal
these orders. Since the district court has previously found that Starks' sentence was
premised on the quantity of powder cocaine attributable to him, not on the other
narcotics listed in his presentence report, he is precluded from relitigating this
question. See United States v. Adams, 104 F.3d 1028, 1030–31 (8th Cir. 1997). On
our de novo review we have concluded that we are precluded from considering Starks'
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argument. See United States v. Long, 757 F.3d 762, 763 (8th Cir. 2014) (standard of
review).
Under the revised drug quantity table for amendment 782, Starks has a base
offense level of 32 due to the 15 to 50 kilograms of powder cocaine that the
presentence report attributed to him. Taking into account the two level firearm
enhancement and the three level acceptance of responsibility reduction, his total
offense level is 31, resulting in a guideline range of 151 to 188 months. Since Starks'
current sentence of 151 months imprisonment is at the bottom of his applicable
amended guideline range, he is not entitled to a sentence reduction under amendment
782.
III.
For these reasons we affirm the district court's order.
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