United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
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). 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.
Mr. Ward's 2001 Conviction
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. §
sentencing the court calculated Mr. Ward's sentencing
guideline range based on his career offender
status. 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
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.
Mr. Ward's Current Appeal
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.
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.
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).
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. 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.
Mr. Ward's Current Motions
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 ...