Peterson v. United States of America

Filing 19

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by U.S. District Judge Karen E. Schreier on 5/17/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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AZIZIA PETERSON,
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CIV 12-4189
Movant,
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ORDER DENYING MOTION
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FOR REDUCED SENTENCE
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UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
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Respondent.
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Pending before the court is movant Azizia Peterson’s motion for a
reduced sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth
below, Peterson’s motion is denied.
On August 3, 2010, Congress passed the Fair Sentencing Act of 2010.
Among other things, the Fair Sentencing Act reduced the statutory penalties
for crack cocaine offenses, reducing the disparity in federal criminal penalties
between powder and crack cocaine offenses. On October 12, 2010, the Eighth
Circuit issued its first decision holding that the Fair Sentencing Act was not
retroactive. United States v. Brown, 2010 WL 3958760 (8th Cir. 2010)
(unpublished).

A jury convicted Peterson of conspiracy to distribute a mixture
containing cocaine base in a quantity of 50 grams or more. She was sentenced
on December 6, 2010. At sentencing, a total of 28.35 grams of crack cocaine
and 1,842 grams of powder cocaine were attributed to Peterson. In light of the
Eighth Circuit’s holding that the Fair Sentencing Act was not retroactive, the
court believed Peterson was subject to a mandatory minimum sentence of 120
months’ imprisonment. With a criminal history category of VI, Peterson’s
advisory guideline range was 140 to 175 months. The court used a 1:1 ratio
between crack and powder cocaine and determined Peterson’s advisory
guideline range to be 120 to 150 months. The court varied downward to avoid
unwarranted sentencing disparities among similarly situated defendants and
imposed a sentence of 120 months’ imprisonment.
On June 21, 2012, the United States Supreme Court held that the more
lenient penalties of the Fair Sentencing Act apply to those offenders whose
crimes occurred before the effective date of the Act, but who were sentenced
after that date. Dorsey v. United States, 132 S. Ct. 2321 (2012). The court
agrees with Peterson that the Fair Sentencing Act applies to her, and the court
finds that Peterson’s claim is cognizable under 28 U.S.C. § 2255. Under the
facts of the case, however, the court concludes that Peterson is not entitled to
the sentence reduction that she seeks.

2

Under the Fair Sentencing Act, Peterson’s statutory mandatory minimum
sentence is 60 months instead of 120 months, but Peterson’s sentence was not
based on a 120-month mandatory minimum. The court varied downward from
Peterson’s advisory guideline range in order to avoid unwarranted sentencing
disparities with other drug distribution conspirators with similar records who
had been sentenced by this court1. Under the revised sentencing guidelines in
effect today, Peterson’s advisory guideline range remains at 140 to 175 months,
which still exceeds her 120-month sentence. After considering all relevant
statutes and sentencing guidelines, including the factors set forth in 18 U.S.C.
§ 3553(a), this court would impose the same sentence of 120 months today.2
Thus, Peterson’s sentence is not unlawful, and she is not entitled to relief
under 28 U.S.C. § 2255. Accordingly,
IT IS ORDERED
1

Azizia Peterson compares her sentence to that of Milton Peterson, but
they are not similarly situated defendants. Milton Peterson pleaded guilty and
cooperated with the government. He received a reduction in his sentence for his
acceptance of responsibility. Disparities in sentences “generally are not
unwarranted where one defendant cooperates and one does not . . . .” United
States v. Crumley, 528 F.3d 1053, 1068 (8th Cir. 2008). In addition, Milton
Peterson’s much lower criminal history category of I allowed him to receive
safety valve reductions under the provisions of 18 U.S.C. § 3553(f) and USSG
§§ 2D1.1(b)(11) and 5C1.2.
2

The court rejects Peterson’s ineffective assistance of counsel claim
based on counsel’s failure to request application of the more lenient penalties
under the Fair Sentencing Act at sentencing. Peterson’s pre-Act and post-Act
advisory guideline ranges exceed both the pre-Act and post-Act mandatory
minimums, so her sentence is unaffected by the mandatory minimums, and
she has suffered no prejudice.
3

1.

That movant Azizia Peterson’s motion for a reduced sentence
pursuant to 28 U.S.C. § 2255 is denied.

2.

That a Certificate of Appealability will not issue on the claims
raised in the § 2255 motion.

Dated May 17, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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