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United States v. Ward

United States District Court, D. Kansas

April 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN D. WARD, Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

         This matter comes before the court on two motions seeking to reduce defendant John D. Ward's current prison sentence. First, Mr. Ward, proceeding pro se, filed a Motion for Sentence Reduction Under the Retroactive Application of the Fair Sentencing Act (Doc. 187). Then, on Mr. Ward's behalf, counsel from the Federal Public Defender for our district filed a Motion for Finding Re: Fed. R. App. P. 12.1 (Doc. 188).[1] These motions work together. That is, Mr. Ward recognizes that his current appeal has divested this court of jurisdiction, but Mr. Ward asks the court to indicate that it would grant the motion to reduce his sentence if it had jurisdiction to do so. The court grants Mr. Ward's request-this Order serves as the court's “indication that it would grant the motion.” Fed. R. App. P. 12.1(a). As the movant, Mr. Ward must notify the circuit clerk of this Order promptly. Id. The court explains its reasoning, below.

         I. Facts

         A. Mr. Ward's 2001 Conviction

         On June 5, 2001, the government charged Mr. Ward in a single-count indictment for conspiracy to distribute 50 grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. § 846. Doc. 8. A jury convicted Mr. Ward. Based on the quantity of cocaine base, Mr. Ward faced a statutory penalty of between 10 years and life in prison and no less than five years of supervised release. See 21 U.S.C. § 841(b)(1)(A).

         At sentencing the court calculated Mr. Ward's sentencing guideline range based on his career offender status.[2] The court had considered whether to set the guideline range based on the quantity of drugs attributable to Mr. Ward, which Mr. Ward had objected to in the Presentence Investigation Report (“PSR”). Although the court agreed with the government's position that it could attribute 2.1 kilograms of cocaine base to Mr. Ward, the court declined to rule on this objection. Instead, the court concluded that the drug quantity did “not affect the guideline range in this case because of defendant's status as a career offender.” Order at 2, United States v. Ward, No. 01-40050 (D. Kan. Feb. 15, 2002), ECF No. 106. Ultimately, the court relied on Mr. Ward's status as a career offender; in its Statement of Reasons, the court set Mr. Ward's total offense level at 37. A 37 coincided with the career offender guidelines, not the drug quantity guidelines. Statement of Reasons at 1, United States v. Ward, No. 01-40050 (D. Kan. Feb. 26, 2002); U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2001). And, the court elevated Mr. Ward's criminal history category from III to VI because of his career offender status. Mr. Ward's resulting guideline range was 360 months to life imprisonment. The court sentenced Mr. Ward to 360 months in prison.

         Mr. Ward appealed. The Tenth Circuit affirmed his conviction. United States v. Ward, 60 Fed.Appx. 716, 717 (10th Cir. 2003). Between 2004 and 2006, Mr. Ward filed, or sought to file, several Motions to Vacate under 28 U.S.C. § 2255. This court and the Tenth Circuit denied each one of his motions. Docs. 126-27, 132.

         B. Mr. Ward's Current Appeal

         In July 2016, the Tenth Circuit permitted Mr. Ward to file a successive § 2255 motion based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. 140. In Johnson, the Court found the residual clause of the Armed Career Criminal Act (“ACCA”) unconstitutionally vague, and thus violative of the Due Process Clause. Id.

         Mr. Ward had received a sentence enhancement under the career offender guideline. This enhancement applies when a defendant has “two prior qualifying felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). So, Mr. Ward sought to apply Johnson to the identically worded residual clause of U.S.S.G. § 4B1.2.

         Our court granted Mr. Ward's § 2255 motion in February 2017. Doc. 150. Then, the Supreme Court decided Beckles v. United States, 137 S.Ct. 886, 892 (2017). Beckles held that the advisory guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, were not subject to a vagueness challenge under the Due Process Clause. But, unlike the Beckles defendant, the court sentenced Mr. Ward before the Supreme Court decided United States v. Booker, which made the Guidelines “effectively advisory.” 543 U.S. 220, 245 (2005). In her Beckles concurrence, Justice Sotomayor considered it an open question “whether defendants sentenced to terms of imprisonment before [Booker]-that is, during the period in which the Guidelines did ‘fix the permissible range of sentences'-may mount vagueness attacks on their sentences.” 137 S.Ct. 886, 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted).

         In light of Beckles, our court requested more briefing from the parties. Concluding that the Supreme Court had not recognized Mr. Ward's asserted right-i.e., that his sentence imposed under the mandatory guidelines violated the Due Process Clause because it was based on an unconstitutionally vague residual clause-our court held that § 2255(f)(3) rendered Mr. Ward's motion untimely.[3] The court thus vacated its earlier Memorandum and Order granting Mr. Ward's § 2255 motion and denied his motion. Doc. 176 at 7. But, the court issued Mr. Ward a certificate of appealability. Id. And, Mr. Ward timely filed a notice of appeal. Doc. 178.

         C. Mr. Ward's Current Motions

         In January 2019, Mr. Ward filed a Motion for Sentence Reduction Under the Retroactive Application of the Fair Sentencing Act. Doc. 187. Mr. Ward contends he qualifies for a sentence reduction under the First Step Act of 2018. The First Step Act allows defendants convicted of certain offenses involving cocaine base to seek a sentence reduction based on the retroactive application of the Fair Sentencing Act of 2010. The Fair ...


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