USA v. Jenkins et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
) ORDER DENYING MOTION TO
Plaintiff, ) REDUCE SENTENCE, MOTION FOR
) TRANSCRIPTS, AND MOTION TO
vs. ) APPOINT COUNSEL
)
Brodrick Jamar Jenkins, ) Case No. 3:12-cr-00091-1
)
Defendant. )
Before the Court is Defendant Brodrick Jamar Jenkins’s motion to reduce sentence filed
on May 1, 2020. Doc. No. 965. On May 14, 2020, the Government responded in opposition to
the motion. Doc. No. 967. Jenkins seeks a reduction in his sentence based on Amendment 798 to
the United States Sentencing Guidelines (“Amendment 798”). He also notes his concerns about
the COVID-19 pandemic. In a separate document, Jenkins has also moved for transcripts of his
change of plea and sentencing hearings and for the appointment of counsel. Doc. Nos. 969 and
970. For the reasons below, Jenkins’s motions are denied.
I. BACKGROUND
On December 13, 2012, a grand jury returned a superseding indictment against 16
defendants, including Jenkins. Doc. No. 122. The superseding indictment charged Jenkins with
conspiracy to possess with intent to distribute and distribute in excess of 280 grams of a mixture
and substance containing a detectable amount of cocaine base (crack cocaine), a mixture and
substance containing a detectable amount of cocaine, and a mixture and substance containing a
detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Id. On April 10,
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2013, Jenkins entered an open plea of guilty before this Court1 to the sole count of the superseding
indictment. Doc. No. 279.
The presentence investigation report (“PSR”) determined Jenkins’s base offense level to
be 32 under USSG § 2D1.1(c)(4). Doc. No. 375, ¶ 25. The following upward adjustments applied:
two levels for possession of a dangerous weapon (USSG § 2D1.1(b)(1)); two levels for the use of
fear, impulse, friendship, affection, or some combination thereof to involve other individuals in
the transportation, storage, or distribution of controlled substances (USSG § 2D1.1(b)(14)); and
three levels for aggravating role (USSG § 3B1.1(b)). Id. ¶¶ 26–27, 29. Jenkins’s adjusted offense
level was therefore 39. Id. ¶ 31. Due to at least two of his prior convictions qualifying as crimes
of violence or controlled substance offenses, Jenkins met the career offender criteria under USSG
§ 4B1.1.2 Id. ¶ 32. However, because his adjusted offense level was greater than 37, the offense
level for a career offender facing a statutory maximum of life imprisonment, his career offender
status did not affect his offense level. Id. A three-level downward adjustment applied for
acceptance of responsibility and timely notification under USSG § 3E1.1, culminating in a total
offense level of 36. Id. ¶¶ 33–35. Jenkins’s status as a career offender resulted in a criminal
history category of VI. Id. ¶ 68. In addition, his criminal history score of 32 points would
1 The Honorable Ralph R. Erickson, then District Judge of the United States District Court for
the District of North Dakota, now Circuit Judge of the United States Court of Appeals for the
Eighth Circuit.
2 The PSR did not state which offenses qualified as predicate offenses for purposes of career
offender status; however, in a 2016 order, Judge Erickson wrote, “Jenkins qualified as a career
offender because he has at least two prior felony convictions that constitute crimes of violence. . . .
Jenkins has a first degree aggravated robbery conviction, a second degree burglary conviction, and
two separate convictions for domestic violence in which Jenkins hit and choked different victims.”
Doc. No. 792, pp. 1–2.
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independently have placed him in criminal history category VI. Id. ¶¶ 66–68. The guidelines
accordingly called for a sentence of 324 to 405 months’ imprisonment. Id. ¶ 113.
Jenkins appeared before this Court for sentencing on October 31, 2013. Doc. No. 518. The
Court adopted the PSR without changes and varied downward to a sentence of 252 months’
imprisonment based on the history and characteristics of the defendant, namely his tumultuous
upbringing. Doc. Nos. 521 and 522. Jenkins did not file a direct appeal, and he voluntarily
dismissed his sole 28 U.S.C. § 2255 motion. Doc. Nos. 852 and 854.
II. DISCUSSION
A. Amendment 798
Jenkins asserts that he is entitled to a sentence reduction because he would no longer
qualify as a career offender in light of Amendment 798’s changes to the career offender guideline
in USSG §§ 4B1.1 and 4B1.2. As relevant here, Amendment 798 removed burglary from the
“enumerated offenses clause” of the career offender guideline and struck the so-called “residual
clause.” USSG app. C supp., amend. 798 (2016). Amendment 798 also created a downward
departure provision applicable when offenses classified as misdemeanors under state law are used
as predicate offenses for career offender status. Id.
Because sentences are final judgments, a court ordinarily “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). As one narrow exception to that
rule, a court may reduce a term of imprisonment “in 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 pursuant to 28 U.S.C. 994(o).” 18 U.S.C. § 3582(c)(2). A reduction must
also be consistent with the sentencing factors of 18 U.S.C. § 3553(a) and any “applicable policy
statements issued by the Sentencing Commission.” Id.
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Because Jenkins was sentenced prior to the effective date of Amendment 798 (August 1,
2016), a sentence reduction pursuant to the amendment is only available if the amendment may be
applied retroactively. See USSG §§ 1B1.10(a)(1) (“As required by 18 U.S.C. § 3582(c)(2), any
such reduction in the defendant’s term of imprisonment shall be consistent with this policy
statement.”) and 1B1.10(a)(2)(A) (“A reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2)
if . . . none of the amendments listed in subsection (d) is applicable to the defendant.”). A reduction
is foreclosed in this case because USSG § 1B1.10(d) does not include Amendment 798 in its list
of retroactively applicable amendments. See United States v. Strevig, 663 Fed. Appx. 908, 912
(11th Cir. 2016) (per curiam); Mathis v. United States, No. 1:17CV00023 SNLJ, 2017 WL
4280679, at *3–4 (E.D. Mo. Sept. 27, 2017).
Even if Amendment 798 were retroactive, however, Jenkins’s guideline range would
remain unchanged. Jenkins’s total offense level was unaffected by the career offender
enhancement because his adjusted offense level (39) was higher than the applicable offense level
for a career offender (37). Doc. No. 375, ¶ 32. Jenkins’s criminal history category also would
remain the same because he independently had enough criminal history points to place him in
criminal history category VI. Id. ¶ 68. Accordingly, Jenkins is not entitled to any relief under
Amendment 798.3
3 To the extent that Jenkins challenges whether his prior convictions would qualify as crimes of
violence under the pre-Amendment 798 version of the career offender guideline and the categorical
or modified categorical approach, § 3582(c)(2) is not the proper avenue for relief. Such a claim
falls instead under the ambit of 28 U.S.C. § 2255 and would likely be time-barred.
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B. COVID-19
In his motion to reduce sentence, Jenkins also briefly raises concerns about his risk of
contracting COVID-19 while incarcerated. He states as follows:
Defendant Jenkins intends to bring an emergency motion to this Honorable District
Court due to the current public health crisis because defendant has serious
[underlying significant] verifiable physical health (high blood pressure,
hypertension, obesity, high creatinine level, high hemoglobin A1C - borderline
diabetic), and mental health conditions (depression, PTSD, high anxiety). Which
subjects the defendant to an [increased] potential risk to contract and spread Covid-
19.
Doc. No. 965, p. 4.
It is unclear whether Jenkins is hereby making a compassionate release motion pursuant to
18 U.S.C. § 3582(c)(1)(A) or merely expressing his future intent to do so; however, because the
title of the document is “Memorandum of Law Based Upon Clarifying Amendment 798” and
Jenkins provides no information about any attempts to meet § 3582(c)(1)(A)’s exhaustion
requirement, the Court will not consider compassionate release at this time. If Jenkins desires to
bring a compassionate release motion after fulfilling § 3582(c)(1)(A)’s exhaustion requirement,
he may do so. See 18 U.S.C. § 3582(c)(1)(A) (stating that the sentencing court may reduce a
defendant’s term of imprisonment “upon motion of the defendant after the defendant has fully
exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden
of the defendant’s facility, whichever is earlier”).
C. Request for Transcripts and Counsel
Lastly, Jenkins requests transcripts of his change of plea and sentencing hearings and the
appointment of counsel to assist with his motion to reduce under Amendment 798. Because the
PSR shows that Jenkins was deemed a career offender and his arguments under Amendment 798
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are meritless, Jenkins has not adequately demonstrated a particularized need for the transcripts he
requests. Jenkins’s request for the appointment of counsel is also denied, as “[t]he Eighth Circuit
Court of Appeals has held that a defendant has neither a constitutional nor a statutory right to
counsel in a sentence modification proceeding under 18 U.S.C. § 3582(c)(2).” United States v.
Jones, No. 4:05-CR-039, 2012 WL 1067396, at *2 (D.N.D. Mar. 28, 2012) (citing United States
v. Harris, 568 F.3d 666, 669 (8th Cir. 2009)).
III. CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
For the reasons above, Jenkins’s motion to reduce sentence (Doc. No. 965), motion for transcripts
(Doc. No. 969), and motion to appoint counsel (Doc. No. 970) are DENIED.
IT IS SO ORDERED.
Dated this 16th day of June, 2020.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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