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United States v. Boswell

United States District Court, D. South Dakota, Southern Division

July 26, 2018

DANA E. BOSWELL, Defendant.


          Lawrence L. Piersol, United States District Judge.

         Pending before the Court are defendant Dana Boswell's pro se motions for a reduced sentence under 18 U.S.C. § 3582(c) and Amendment 782 or, in the alternative, under Federal Rule of Civil Procedure 60(b)(6). (Docs. 1258 and 1263.)[1] Boswell asserts that the Presentence Investigation Report ("PSR") incorrectly stated that he had a felony controlled substance offense and three convictions for felony crimes of violence that were predicate offenses for a career offender enhancement under the Sentencing Guidelines. He did not have access to his California state court documents until recently, and he relied on his lawyer at sentencing to determine if his prior California convictions were career offender predicates. Boswell notes that if he had not been sentenced as a career offender he would have been eligible for the two-level reductions under 18 U.S.C. § 3582(c)(2) when the sentencing commission later changed the guidelines for cocaine offenses.

         Boswell asks the Court to hold his motion for sentence reduction in abeyance until the Probation Office corrects his Presentence Investigation Report to reflect that his prior convictions are misdemeanors. (Doc. 1266.) He also asks the Court to appoint the Federal Public Defender as counsel to assist him with the motions for sentence reduction. (Doc. 1267.)

         The United States resisted the motions for sentence reduction on procedural grounds without addressing the merits of Boswell's argument that he was erroneously sentenced as a career offender. (Docs. 1260, 1265.)


         On April 20, 1999, a jury issued a guilty verdict against Boswell on five counts, including conspiracy to distribute cocaine base ("crack"), money laundering, and control of a residence used for unlawful drug activity.

         A probation officer compiled a PSR and, in calculating Boswell's guideline range, initially assigned him a base offense level of 34 based on the drug quantity table under USSG § 2D1.1(c)(3). However, the officer determined that Boswell had at least one prior felony conviction for a controlled substance offense and three prior felony convictions for crimes of violence, which qualified him as a career offender under USSG § 4B1.1[2]

         At the sentencing hearing on July 13, 1999, this Court ruled that Boswell was a career offender within the meaning of USSG § 4B1.1 of the sentencing guidelines. Because his offense level from the career offender table was higher than his level from the drug quantity table, the PSR applied the level from the career offender table, placing him at an offense level of 37. See USSG § 4B1.1. With a criminal history category of VI, Boswell's imprisonment range under the sentencing guidelines was 360 months to life.[3] Boswell was sentenced to 360 months of imprisonment. His conviction and sentence were affirmed on appeal. See United States v. Bradford, 246 F.3d 1107 (8th Cir. 2001).

         On April 10, 2002, Boswell filed a motion under 28 U.S.C. § 2255, arguing that his trial lawyer rendered ineffective assistance of counsel by failing to investigate and challenge Boswell's prior state convictions and by failing to honor Boswell's wish to enter into a plea agreement with the government. See CIV 02-4075, doc. 1. Finding no ineffective assistance of counsel, and no prejudice to Boswell, this Court denied the § 2255 motion. See CIV 02-4075, doc. 24. The Eighth Circuit denied a certificate of appealability and dismissed Boswell's appeal.

         On August 3, 2010, the Fair Sentencing Act ("FSA") was enacted, raising the amount of cocaine base required for imposition of a mandatory minimum sentence. The Sentencing Commission amended the Sentencing Guidelines in order to implement the FSA. Amendment 750 lowered the base offense level specified in USSG § 2D1.1 for crack cocaine offenses. The Commission voted to give retroactive effect to the new guideline which became effective on November 1, 2011.

         On February 23, 2012, Boswell filed a motion for a sentence reduction pursuant to 18 U.S .C. § 3582(c)(2) based on Amendment 750. (Docs. 1226 and 1228.) Because Boswell's base offense level was determined according to the career offender guidelines and not the drug quantity table, Amendment 750 did not have the effect of lowering his applicable guideline range. Accordingly, Boswell was not eligible for a sentence reduction. See United States v. Harris, 688 F.3d 950, 955 (8th Cir. 2012) (holding that career offender is not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 750 because his sentence was based on the career offender guidelines, not the drug quantity guidelines); USSG § IB 1.10, cmt. n. 1(A) ("Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (d) that lowers the applicable guideline range...."). Boswell's motion for a sentence reduction was denied by this Court in a Memorandum Opinion and Order issued on April 15, 2013. (Doc. 1236.)

         Subsequently, the Sentencing Commission adopted another amendment to the Sentencing Guidelines, Amendment 782, made retroactive by U.S.S.G. § IB 1.10, which calls for a two-level decrease in offense levels for sentences based on drug quantity. Boswell's pending motions are based in part on Amendment 782.

         Boswell's current motions for sentence reduction are brought pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782. In the alternative, Boswell argues that he is entitled to relief from his judgment of conviction under Federal Rule of Civil Procedure 60(b)(6). He argues that three of his prior crimes listed as felony crimes of violence in the PSR are actually misdemeanor convictions. In addition, Boswell claims that his prior state drug offense for possession of a controlled substance does not meet the definition of a "controlled substance offense" under USSG § 4B1.2(b) because it was for simple possession. Boswell contends that he was not aware of the relevant details of his convictions until recently when he was seeking relief in the California courts where the three crimes of violence set forth in his PSR took place. (Doc. 1264 at 1, 3.) Boswell says that, through the process of seeking relief in California, he discovered his prior crimes of violence are misdemeanors. (Id.)


         Documents submitted by Boswell indicate that at least three of the four convictions listed in his PSR and relied on for his sentence might not qualify as predicates for career offender status. As discussed below, briefing by the parties and further ...

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