United States of America v. Buffington

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 4/12/2017. Mailed notice (eaa, )

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CALVIN BUFFINGTON, Petitioner, Case No. 16 C 8632 v. Judge Harry D. Leinenweber UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Petitioner Calvin Buffington’s (“Buffington”) Motion for Relief under 18 U.S.C. § 3582(c)(2) [ECF No. 1] is denied. I. This case raises BACKGROUND the question of what to do when a defendant’s Presentence Investigation Report (“PSR”) adopted by the Court in sentencing turns out to be internally inconsistent. The answer matters for Buffington because, if one drug quantity from the PSR is used as the factual basis for his original sentence, then he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). But if another, irreconcilably different drug quantity from the same report is used, then his sentence must stand as is. To begin near the beginning, in 2011, this Court sentenced Buffington to a prison term of 238 months running a wholesale drug distribution ring. for his role in See, United States v. Buffington, No. 07-CR-00410, ECF No. 1006 (Judgment) (N.D. Ill. Mar. 18, 2011). Evidence before the Court established that Buffington was the leader of the enterprise and that his scheme sucked in the people closest to him, all of whom were charged and sentenced as participants in the organization. Buffington’s co-conspirators him siblings in included his difficult mother, who raised circumstances; his and brother, his whom Buffington knew to be a crack addict; his cousins; a girlfriend, a college buddy, individuals were and the various mothers others. of (Among Buffington’s the uncharged three children, whom the Government said Buffington used to funnel the illicit funds of his criminal enterprise.) The enterprise operation. quantities itself Buffington of drugs, lasted for years. was and no his running a “dime cohorts bags on dealt trafficking in a corner” wholesale organization that During the life of the enterprise, Buffington – and others at his direction – stored, packaged, processed, restocked, moved, sold, and otherwise distributed cocaine and heroin across state lines from Chicago to Detroit. The exact amount of drugs for which Buffington responsible is important for the present Motion. was During the sentencing hearing, however, the Court did not commit to any particular drug quantity. The closest the Court came to stating - 2 - a numerical value was when it said, right before imposing sentence, that “the nature and circumstances of the offense” were “very, very, very serious,” “involving perhaps up to 1,000 kilograms of cocaine.” See, Buffington, No. 07-CR-00410, ECF No. 1074 (S. Tr.) at 52:13-18. Earlier in the proceeding, the Court stated that it had received the PSR and asked the parties if they thought the report was accurate. Neither Buffington nor the Government disputed the drug quantities found in the report. Both agreed that based on the amounts involved, Buffington’s base offense level was 38. The PSR, however, contained three different sets of numbers as to the drug quantities. First, the report broke down in detail the amount of drugs that Buffington received from his known suppliers during the period stretching from 2003 to 2007. This summed up to 978 kilograms (kg) of cocaine and 3 kg of heroin. As converted to a common unit, 978 kg of cocaine and 3 kg of heroin equaled 198,600 kg of marijuana. See, 18 U.S.C. App. § 2D1.1, Drug Equivalency Tables (stipulating that 1 gram (g) cocaine = 200 g marijuana and 1 g heroin = 1 kg marijuana). Second, and irreconcilable with the first set of numbers, the PSR stated that Buffington’s offense level was 38 “because the amount of which the controlled defendant substances is involved accountable - 3 - is in the offense approximately for 364 kilograms of cocaine and 1,800 grams of heroin.” Buffington v. United States, 16-CV-08632, ECF Nos. 1 at 3-4 (Motion) & ECF No. 8 (Gov’t Resp.) at 3. controlled marijuana.” substances Id. But are Third, the PSR stated that “these equivalent neither pair to of 180,411 numbers mentioned computed to 180,411 kg of marijuana. kilograms that the of PSR As noted, 978 kg of cocaine and 3 kg of heroin were equivalent to 198,600 kg of marijuana. At the same conversion rate, 364 kg of cocaine and 1,800 g of heroin equaled 74,600 kg of marijuana. Despite the discrepancies, the parties made no objection to the drug quantities reported. This probably was due to the fact that under the then-prevailing Sentencing Guidelines, any amount of cocaine over 150 kg would put a defendant at an offense level of 38. See, 18 U.S.C. app. § 2D1.1, Drug Quantity Table (2011). Thus, the smaller reported amount of 364 kg of cocaine alone would make Buffington a level 38 offender, the base level at which he was sentenced. (To be precise, Buffington sentenced at a final-computed offense level of 39. because on a base level of 38, Buffington got a was This is four-level increase for being the leader in a criminal activity involving five or more persons and a three-level decrease for accepting responsibility. Because these adjustments are not relevant for the current motion, the Court focuses on the base level.) - 4 - In the Statement of Reasons issued after the sentencing hearing, the Court checked the box indicating that it adopted the PSR in full without change. Due to discrepancies matter. In a change in the 2014, to the Sentencing Guidelines, the in now drug quantities found the the Sentencing Commission PSR promulgated Amendment 782, since then made retroactively applicable, that served to lower the offense levels for certain drug crimes. amendment accomplished this by raising the threshold The drug quantity that an offender needs to be sentenced at a particular level. Now, a person must be responsible for at least 450 kg of cocaine to be a level 38 offender, whereas a person responsible for less than 450 kg of cocaine but more than 150 kg is a level 36 offender. See, 18 U.S.C. app. § 2D1.1, Drug Quantity Table. Buffington thus argues that, if sentenced today, he would be a level 36 offender, and not a level 38. On this basis alone, he presses for a 28-month reduction in his sentence. The argument, however, hinges on Buffington being “credited” with the lowest of the three drug quantities that the PSR reported. Only if this quantity (364 kg of cocaine and 1,800 g of heroin) is used would Buffington be a level 36 offender. Buffington’s base offense level would remain unchanged at 38 if either of the - 5 - two other quantities (978 kg of cocaine and 3 kg of heroin; or 180,411 kg of marijuana) is adopted instead. For the reasons detailed below, the Court finds that Amendment 782 had no effect in lowering Buffington’s guideline range. Accordingly, the Court Buffington a sentence reduction. is not authorized to grant Furthermore, even if it had the authority, the Court would exercise its discretion and deny Buffington the 28-month reduction in sentence he seeks. Succinctly put, Buffington has not supplied the Court with any reason to lessen his punishment since it first sentenced him. II. ANALYSIS The present Motion is brought under 18 U.S.C. § 3582(c)(2). This section of the penal code provides federal courts with limited authority to reduce a sentence of imprisonment after it has been imposed. See, 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 819 (2010). It states, [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . ., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The text of the statute makes clear that the Court may reduce the term of imprisonment only where - 6 - the original term was “based on a sentencing range that has subsequently been lowered” and where “such a reduction consistent with applicable policy statements.” Id. is Only after the Court determines that these threshold requirements have been met does it then consider whether “the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).” The procedure for Dillon, 560 U.S. at 826. the Court to follow in § 3582(c)(2) motion thus is a two-step inquiry. 560 U.S. at 825-26. the Court § 3553(a)’s then factors, defendant’s sentence. on a See, Dillon, In step one, the Court asks whether it has the authority to grant a sentence reduction. yes, ruling proceeds and to decides step If the answer is two, whether considers to the reduce the The Court performs this analysis step-by- step below. A. The Whether a Reduction in Setence Is Authorized Court finds that it Buffington a sentence reduction. lacks the authority to grant Recall that Buffington is here relying on Amendment 782 to argue for such a reduction. The applicable policy statement specifies that “[a] reduction in the defendant’s term of imprisonment is not . . . authorized under 18 U.S.C. § 3582(c)(2) if [Amendment 782] does not have the effect of lowering the defendant’s applicable guideline range.” - 7 - See, 18 U.S.C. app. § 1B1.10(a)(2) & (d). As explained above, Amendment 782 does not lower Buffington’s guideline range (from 38 to 36) unless the Court finds that a specific drug quantity from the PSR, internally inconsistent with other quantities reported, is the amount of controlled substances for which he was responsible. To determine whether this is the amount of drugs that properly should be attributed to Buffington, the Court first asks if it has already made such a finding at his sentencing. If the Court previously found Buffington to be responsible for exactly 364 kg of cocaine and 1,800 g of heroin, then it may not now make any other finding inconsistent with that quantity. See, United States v. Dewayne Hall, 600 F.3d 872, 876 (7th Cir. 2010) (“[I]n deciding a sentence-reduction motion pursuant to § 3582(c), the district court may not make factual findings that are inconsistent sentencing.”). with those made during the original After combing the record, the Court concludes that it did not make a finding as to the exact amount of drugs that Buffington distributed. Instead, the Court found that Buffington was responsible for an amount of drugs qualifying him to an offense level of 38 under the Guidelines applicable at the time of his sentencing. During the sentencing hearing, the Court stated that the offense - 8 - level was 38 without mentioning See, S. Tr. 7:2-9 (“The Court: any specific The Court: agrees that it’s 38? only numerical figure Ms. Winslow: All right. Ms. Reynolds: to quantity. The base offense level is 38. Ms. Winslow, does defense agree with that? not disputing it. drug issue We’re And the government That’s correct.”). from the Court The was that Buffington’s offense involved “perhaps up to 1,000 kilograms of cocaine.” It is true that the PSR, unlike the Court, committed to specific drug amounts. In particular, the PSR stated that Buffington’s “Base Offense Level is 38, because the amount of controlled substances involved in the offenses for which the Defendant is accountable is approximately cocaine and 1,800 grams of heroin.” 364 kilograms ECF No. 1 at 3-4. of It is also true that the Court adopted the PSR in its Statement of Reasons. However, the Court adopted the PSR in its entirety, and the PSR included not only the quantities on which Buffington now relies but also the higher quantities of 978 kg of cocaine and 3 kg of heroin, as well as the 180,411 kg of marijuana figure. Even assuming for the moment that one of the numbers from the PSR should be treated as the exact amount of drugs the Court deemed Buffington to have distributed, - 9 - the Court is not convinced as to why this number should be the lowest quantity of 364 kg of cocaine and 1,800 g of heroin. drug Buffington asserts that the Court cannot deviate from these figures because to correct the numbers to anything else would be a substantive correction outside Procedure 36. the scope of Federal Rule of Criminal But his argument assumes that these numbers are the substantive quantities, while the other numerical values are either incorrect mathematical conversions – to be corrected in Buffington’s favor – or things to be ignored. It may be just as sensible, however, to treat the 364 kg of cocaine and 1,800 g of heroin numbers as scrivener’s errors and the 978 kg of cocaine and 3 kg of heroin as the original, “true” figures that the scrivener poorly transcribed. These higher quantities are factually supported as the sum of the drug transactions that Buffington criminal had with enterprise his was dealers active. during The 364 the kg time of when his cocaine and 1,800 g of heroin numbers, on the other hand, seem to have no support. Put differently, the case at hand is distinguishable from those that Buffington cites. In the cited cases, the disputes revolved around a presentence report or criminal judgment that contained an error as revealed by comparisons to other, external sources, e.g., the judge’s intention in imposing a sentence or - 10 - the probation officer’s knowledge in preparing the PSR. See, United States v. Williams, 777 F.3d 909, 910 (7th Cir. 2015) (stating that the petitioner’s sentence “accurately carries out the district judge’s decision” and that the presentence report does not contain a clerical error as “whether the author of the report accurately understood the nature of one of Williams’s older convictions (which affects whether he is a career offender) is a substantive matter”); United States v. Johnson, 571 F.3d 716, 718 (7th Cir. 2009) (finding no correctable error when “the PSR’s preparer noted that she would use a conservative estimate of the drug amount range for the relevant drug period; ultimately, a higher reported amount was used”). Rule 36 does not allow for the substitution of information from these outside sources when substantive and those not substitutions clerical. concern See, e.g., matters United deemed States v. Lawrence, 535 F.3d 631, 636 (7th Cir. 2008) overruled on other grounds by United States v. Taylor, 778 F.3d 667, 671 (7th Cir. 2015) (“Here, the district court modified the sentence by substituting the words ‘is less than’ for the word ‘exceeds.’ The corrected sentence reflected the parties’ and the court’s intent. However, . . . [t]he error cannot be deemed a clerical error under Rule 36. . . .”). - 11 - Here, in contrast, the dispute is over a single document that contains internally inconsistent pieces of information. The question is then which piece of information (if any) should be deemed operative. be left as is. The PSR contradicts itself and so cannot Instead, if the Court thinks that the report contained an exact drug amount that was adopted at sentencing, then it must say which drug amount this is and so strike out the other two quantities, which it also (and equally) adopted in its Statement of Reasons. On the strength of the record, however, the Court does not think it adopted a particular numerical value from the PSR as a factual None finding of these hearing. make a as to numbers the precise were even amount of mentioned at drugs the involved. sentencing This matters because if “the district court did not factual original finding sentencing as to hearing, quantity the court at was [the defendant’s] required [and so free] to make such a finding in adjudicating his § 3582(c)(2) motion.” United States v. Davis, 682 F.3d 596, 615 (7th Cir. 2012), overruled on other grounds by Taylor, 778 F.3d at 671, (emphasis added). § 3582(c)(2) motion Moreover, is “a new appropriate factual so long finding as it is on a not inconsistent with the district court’s findings at the original sentencing hearing.” Id. (emphasis added). - 12 - Accordingly, the Court now makes a finding as to the drug quantity so that it can determine what level would be under the new Guidelines. Buffington’s offense See, Dewayne Hall, 600 F.3d at 876 (“[N]ew findings may be necessary where, as here, the retroactive amendment to the guidelines altered the relevant drug-quantity thresholds for determining the defendant’s base offense level.”); United States v. Mark Hall, 582 F.3d 816, 81819 (7th Cir. 2009) (similar). the record as a whole. In so doing, the Court considers See, Dewayne Hall, 600 F.3d at 876 (“[I]n ruling on a § 3582(c)(2) motion, the district court may consider the record as a whole. . . .”); United States v. Woods, 581 F.3d 531, 538-39 (7th Cir. 2009), overruled on other grounds by Taylor, 778 F.3d at 671, (noting with approval the fact that the district court “examined the record as a whole, considered the defendants’ motions, the government’s responses, and the addenda to the PSRs”). Based holding on what Buffington the Court said accountable at for the sentencing “perhaps up hearing to 1,000 kilograms of cocaine,” the details in the PSR supporting the drug quantities as being 978 kg of cocaine and 3 kg of heroin, and the proceeding Government’s that the consistent quantity of position throughout cocaine attributable the to Buffington was “more than 1,000 kilograms of cocaine,” the Court - 13 - now finds that Buffington was responsible for at least 450 kg of cocaine. that This is consistent with the Court’s previous finding Buffington was a level 38 offender under the old Guidelines, meaning that he was responsible for no less than 150 kg of cocaine. See, e.g., United States v. Russell, 562 F. App’x 529, 531 (7th Cir. 2014) (“[A] district court may make new factual findings if they are consistent with its previous Ergo, Buffington’s offense level remains at 38. The 782 findings.”) (citing Davis, 682 F.3d at 612). Amendment thus had no effect in lowering his sentencing range, and the Court is not at liberty to grant him any relief under § 3582(c)(2). See, e.g., Richardson v. United States, No. 94- CR-187-1, 2016 U.S. Dist. LEXIS 93544, at *3 (N.D. Ill. July 19, 2016) (“[B]ecause the sentencing range upon which Petitioner was originally sentenced is not modification of Petitioner’s pursuant 18 U.S.C. to § lowered imposed 3582(c)(2) by term is Amendment of not 782, imprisonment authorized.”). Buffington’s motion for relief “begins and ends with step one.” United States v. Koglin, 822 F.3d 984, 986 (7th Cir. 2016). B. Whether a Reduction in Sentence Is Warranted Alternatively, authority reduction, to it the consider should Court finds that Buffington’s decline to - 14 - even request grant any if for such it had the a sentence reduction. Buffington has not given the Court a reason consonant with the factors in 18 U.S.C. § 3553(a) to grant him relief. have forgotten that “a section 3582(c)(2) He seems to modification is discretionary, even for a defendant whose Guideline range has been retroactively lowered.” United States v. Cunningham, 554 F.3d 703, 707 (7th Cir. 2009); see also, United States v. Young, 555 F.3d 611, 614-15 (7th Cir. 2009). While § 3553(a)’s factors are numerous, the Court considered them when it imposed the sentence that Buffington now seeks to change. It specifically found that a 238-month sentence was appropriate because of the “very, very, serious” nature and circumstances of the offense, which made it “one of the most egregious cases” before the Court. See, S. Tr. 49:13- 14 (“This is one of the most egregious cases from a number of standpoints.”); 50:17-21 (“[T]his is a very, very, very serious crime.”); 52:13-22 (“[T]he nature and circumstances offense [are] very, very serious. . . .”). of the Of course, one of the things that was so egregious about Buffington’s conduct was the “literal size” of his drug operation. 51:2-9. See, S. Tr. 49:13-14; But even if the Court now holds Buffington responsible only for the lesser amount of 364 kg of cocaine and 1,800 g of heroin, this still does not change its conclusion that he was “a part of a very, very bad business, which . . . feeds the drug - 15 - habits and creates drug habits among some of our young people and not-so-young people.” See, S. Tr. 49:19-22 (“Well, a lot of people’s drugs, children are on and a lot of them probably because of this particular drug conspiracy, because you put so much of this poison out of the street.”); 51:5-15 (“[Y]ou’re a part of a very, very bad business, which the net result is that it feeds the drug habits and creates drug habits among some of our young people and not-so-young people. And it’s really – it’s hard for me to find much good about it.”). Moreover, the Court imposed the sentence it did for reasons other than the size of Buffington’s drug operation. The Court took note of the fact that Buffington “had skills,” “w[as] able to win basketball scholarships to . . . more than one school,” was “able to get into college,” and “could have made something for [himself].” sell drugs. See, S. Tr. 51:24-52:8. Instead, he chose to Further, he involved his brother, an addict, and his mother, a woman who “worked hard to take care of [him],” in the illegal enterprise. See, S. Tr. 49:23-24; 51:24-25. The Court characterized Buffington’s involvement of his mother, whom the Court then had to sentence, as “the worst thing” Buffington did. See, S. Tr. 50:4-7, 15-18 (“Some of the – the worst thing is to get your own mother involved. mother. I had to sentence your And that was painful, I will tell you.”). - 16 - None of these facts sentence have changed. that anything is sentenced him. prison, what supporting the Court’s original Indeed, Buffington made no effort to say different today than when the Court first He does not mention how he has spent his time in he has been able to accomplish within that environment, or even if he has managed to stay out of trouble. See, 18 U.S.C. app. § 1B1.10 n.1(B)(iii) (listing a defendant’s post-sentencing conduct as a factor that may be considered in determining imprisonment whether is a reduction warranted). in the defendant’s Buffington only term of generically asserted that “[a] 28-month reduction is warranted under the moral and legal principles encompassed in § 3553.” at 3-4. As ECF No. 17 He does not say why that is. far as the Court Buffington is now older. can tell, only time has passed. But he was 44, not a young man, when the Court first sentenced him, and the Court already took into account his age when it imposed the term of imprisonment. S. Tr. 53:2-10 (“The Court: 45? Buffington: person.”). Yes. See, Now, you’re, what, 44 years of age, The Court: So you’re not a young Furthermore, the Court knew that Buffington would one day be an old man in prison when it announced the sentence. For the Court to change its mind now because the inevitable has arrived would only be time-inconsistency at play. - 17 - In sum, Buffington has not given the Court any reason to exercise its discretion and grant him the relief he seeks. As such, either as a matter of course under step one, or as a matter of choice under step two, the Court orders that Buffington’s sentence stand. III. CONCLUSION For the reasons stated herein, Buffington’s § 3582(c)(2) Petition [ECF No. 1] is denied. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated:4/12/2017 - 18 -

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