United States v. Wyche ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Case No. 89-CR-36-RCL-5
GARY WYCHE,
Defendant.
MEMORANDUM OPINION
In 1989, defendant Gary Wyche was sentenced to life in prison after a jury found him
guilty of drug trafficking and firearms offenses stemming from his participation in a large-scale
illegal drug operation operating in Washington, D.C. during the late 1980s. After serving
approximately thirty years in prison, Mr. Wyche moved for a reduction in his sentence based on
Section 404 of the First Step Act of2018 ("First Step Act"), Pub. L. 115-391, § 404, 132 Stat.
5194. Section 404 allows courts to impose a reduced sentence "as if' the reduced crack cocaine
penalties established by Sections 2 and 3 of the Fair Sentencing Act of 2010, Pub. L. 111-220,
124 Stat. 2372, had been in effect "at the time of the commission of the offense, not at the time
of the original sentencing," Concepcion v. United States, 142 S. Ct. 2389, 2402 (2022). The
government agrees with Mr. Wyche that he is eligible for relief under the First Step Act but
urges the Court to exercise its discretion not to reduce Mr. Wyche's sentence.
After considering the parties' briefing, the applicable law, and the record therein, the
Court will GRANT IN PART Mr. Wyche's motion. Mr. Wyche's sentence is reduced to 28
years' imprisonment. His motion is otherwise denied.
1
I. BACKGROUND
The factual and procedural background of this case has been described in detail in the
previous opinions from this Court and the Circuit. See United States v. Harris, 959 F.2d 246(D.C. Cir. 1992) (per curiam); United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014); United
States v. Wyche, No. 89-cr-0036 (RCL), 2022 WL 2643568, *1 (D.D.C. July 8, 2022). The Court
includes below an overview of the relevant facts and procedural history for consideration of Mr.
Wyche's motion.
In 1989, Mr. Wyche was arrested and charged with several narcotics and firearm offenses
for his involvement in a large drug conspiracy operating in Washington, D.C., which imported
cocaine base, also known as crack cocaine, from New York City and distributed it in northeast
Washington. See Wyche, 741 P.3d at 1287. Along with his co-conspirators, he was tried and
ultimately convicted on 6 counts: conspiracy to distribute and to possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a) & 846 (Count 1); conspiracy to
carry and use firearms during and in relation to drug trafficking offenses in violation of 18
U.S.C. §§ 371, 924(c) (Count 3); use of juveniles in drug trafficking in violation of 21 U.S.C.
§ 845b (Count 4); assault with a dangerous weapon in violation ofD.C. Code§ 22-502 (Count
13); use of a firearm in aid of drug trafficking in violation of 18 U.S.C. § 924(c) (Count 14); and
possession of a firearm by a felon in violation of 18 U .S.C. § 922(g) (Count 15). Id.
In preparation for sentencing, the United States Probation Office prepared a presentence
investigation report ("PSR"). Id. Relying on trial testimony, the PSR concluded that the
conspiracy began i~ January 1987 with Michael Palmer, Tony Flow, and Anthony Watson. See
PSR, ECP No. 461-2, ,r 9. According to the PSR, Mr. Wyche was Plow's right-hand man until
Plow's death, after which Mr. Wyche continued his participation in the conspiracy until his
2
arrest. Id. ,r,r 13-14. Every two to three days, the conspiracy sold two pounds of cocaine base and
transported around one pound of cocaine base into Washington. Id. ,r 17. The United States
Attorney's office reported that the operation distributed over 150 kilograms of cocaine base from
January 1987 to July 1988. Id.
At his sentencing hearing, the Court identified Mr. Wyche as a principal member of and
major participant in the conspiracy. See Wyche, 741 F.3d at 1288. Because the conspiracy
distributed over 500 grams of cocaine base, the Court calculated Mr. Wyche's United States
Sentencing Guidelines ("U.S.S.G.") base offense level as 36-the highest base offense level at
that time. Id. The Court then added a three-level enhancement for Mr. Wyche's managerial role
in the conspiracy, a two-level increase for the restraint of a victim, and a two-level enhancement
for the use of a firearm in aid of drug trafficking, raising his total offense level to 43. Id. With
Mr. Wyche's criminal history category ofV, the guideline sentence range for him was life
imprisonment. Id. The Court followed this guideline and sentenced Mr. Wyche to life in prison
plus a 5-year term for the unlawful use of a firearm in aid of drug trafficking, and 10 years of
supervised release. See J., ECF No. 461-1, at 3.
Mr. Wyche's convictions were affirmed by the Circuit. See Harris, 959 F.2d at 264. Still,
the case was remanded for resentencing in part to reassess the drug quantity for which Mr.
Wyche was responsible. See Wyche, 741 F.3d at 1288. On remand, a revised PSR concluded that,
during the period that Mr. Wyche was a member of the conspiracy, the drug operation received
at least 907.2 grams of cocaine base per week, or a total of approximately 31 kilograms. Id. at
1288-89. Based on this quantity, the Court again assigned Wyche a base offense level of 36,
added the appropriate three-level and two-level enhancements, and resentenced him to the same
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sentence-life plus 5 years, with 10 years of supervised release. 1 Id. at 1289. The D.C. Circuit
affirmed the sentence after Mr. Wyche's appeal. Id. Mr. Wyche has filed several collateral
attacks to his conviction in the intervening years, none of which have been successful. See Gov't
Opp'n to Def. 's 2d Suppl. Mot., ECF No. 532, at 4-6.
In 2019, Mr. Wyche filed a prose motion and supplement asking this Court to reduce his
sentence pursuant to Section 404 of the First Step Act. See Defs Mot., ECF. No. 476; Def.'s
Suppl. Mot., ECF No. 486. In early 2021, this Court appointed the Office of the Federal Public
Defender to represent the defendant in litigating his First Step Act motion. See Order (Jan. 14,
2021), ECF No. 524. Mr. Wyche, through counsel, filed another supplement to his pending First
Step Act motion. Def. 's 2d Suppl. Mot., ECF No. 528. Around the same time, Mr. Wyche,
through different counsel, filed a motion for compassionate release. See Def.' s Compassionate
Release Mot., ECF No. 517 [hereinafter "Def.'s CR Mot."]. Because of the overlapping nature of
the arguments and in analysis between Mr. Wyche's compassionate release and First Step Act
motions, Mr. Wyche incorporates the compassionate release motion and his corresponding reply
into this First Step Act submissions filed through counsel. See Def.' s 2d Suppl. Mot. at 1; Def.' s
CR Mot.; Def.'s Reply to Gov't Opp'n to Def.'s CR Mot., ECF No. 523.
Mr. Wyche asks this Court to reduce his sentence to 10 years, in order that the remaining
time he has spent incarcerated-more than 20 years-may be credited toward a consecutive 20-
year sentence to be served in Maryland upon his release from federal custody for a 1989 guilty
1
In the Circuit's most recent decision on Mr. Wyche's case, the Circuit stated that on remand the sentencing court
recalculated Mr. Wyche's total offense level to be 41. Id. atJ289. On direct appeal, Mr. Wyche had argued-and the
Circuit rejected-that the sentencing court improperly applied a two-level enhancement for restraint of a victim. See
Harris, 959 F.2d at 265. On his appeal after the remand, the Circuit stated that "even without the two-level
enhancement" at issue on Mr. Wyche's direct appeal, the removal of which would reduce his total offense level to
41, "the sentencing range governing [Mr. Wyche's] sentence would be the same-360 months to life." Thus,
"(b]ecause the district court imposed the maximum sentence on both occasions, it is clear that the same sentence
would be imposed under either offense level." United States v. Wyche, No. 93-3003, 1993 WL 478952, *1 (D.C. Cir.
Nov. 12, 1993) (per curiam).
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plea to possession with intent to distribute cocaine. See Def.' s 2d Suppl. Mot. at 2, n.1; Def s CR
Mot. at 38. In the alternative, Mr. Wyche asks this Court to reduce his sentence to 25 years'
incarceration, "thus creating [several] years of credit for time served such to effectuate parole
eligibility and the prospect of immediate release." Def.'s CR Mot. at 32 n.101. 2
The government opposed. See Gov't Opp'n to Def.'s 2d Suppl. Mot. The government
agrees that Mr. Wyche is eligible for a sentence reduction under the First Step Act but urges the
Court not to reduce his sentence due to Mr. Wyche's criminal history and post-sentencing
conduct, the need for deterrence, and other factors. Id. at 1. Like Mr. Wyche, the government
references its opposition to Mr. Wyche's compassionate release motion in its First Step
oppositions. See, e.g., Gov't Opp'n to Def.'s 2d Suppl. Mot. at 11 n.9 (citing Gov't Opp'n to
Def.'s CR Mot., ECF No. 521). Therefore, the Court will consider arguments raised in both
motions, as well as Mr. Wyche's replies, for the purpose of ruling on the instant motion. See
Tunica-Biloxi Tribe ofLa. v. United States, 577 F. Supp. 2d 382,426 n.22 (D.D.C. 2008).
In July 2022, this Court reserved ruling on Mr. Wyche's motion pending supplemental
briefing from the parties in light of the Supreme Court's decision in Concepcion. Order (July 8,
2022), ECF No. 540. Consistent with this Court's order, the parties submitted their supplemental
briefing. See Gov't's Concepcion Suppl. Br., ECF No. 546; Def.'s Concepcion Suppl. Br., ECF
No. 547. Mr. Wyche has served more than 33 and a half years in prison and is now incarcerated
at USP Lewisburg. 3
2
Under Maryland law, an inmate becomes eligible for parole once they have served 6 months and aggregate one-
fourth of their sentence for non-violent crimes. See Md. Code Ann., Corr. Serv. § 7-301(a)(l)(i)-{ii) (West 2022).
Mr. Wyche's Maryland conviction is not a crime of violence under Maryland law. See Md. Code Ann., Crim. L.
§ 14-l0l(a) (West 2022). Thus, because Mr. Wyche received a 20-year sentence in Maryland, he would be eligible
for parole after serving---or receiving overserved credit time for-5 years.
3
As of September 21, 2020, Mr. Wyche had served 31 years, 6 months, and 19 days in prison. See Bureau of
Prisons Sentence Computation Data, Ex. A to Gov't Opp'n to Def.'s CR Mot., ECF No. 521-1.
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II. LEGALSTANDARD
"For nearly 25 years, federal criminal law punished offenses involving crack cocaine far
more harshly than offenses involving powder cocaine." United States v. Lawrence, 1 F.4th 40, 42
(D.C. Cir. 2021). In 2010, "[a]fter two decades of criticism, Congress reduced, but did not
eliminate, the crack-to-powder disparity in the Fair Sentencing Act," by "reduc[ing] the disparity
between cocaine base and powder cocaine from 100-to-1 to 18-to-1," id. (internal citations
omitted). Specifically, Section 2 of the Act increased the threshold drug amounts required to
trigger mandatory minimum sentences for crack offenses. 124 Stat. at 2372 § 2. Before the Act,
possessing 50 grams of crack cocaine triggered a ten-year mandatory minimum. Id. The Act
increased that threshold to 280 grams. Id. Likewise, the 5-gram threshold that previously
triggered a five-year mandatory minimum was increased to 28 grams. Id. Those revisions
initially did not apply to defendants sentenced before August 3, 2010, the date of the Fair
Sentencing Act's enactment. See United States v. Swangin, 726 F.3d 205,208 (D.C. Cir. 2013).
Eight years later, Congress passed the First Step Act of 2018. 132 Stat. at 5194. Section 404 of
the First Step Act, which made retroactive the Fair Sentencing Act's modifications, "allows
district courts to consider intervening changes of law or fact in exercising their discretion to
reduce a sentence pursuant to the First Step Act," so long as they "explain their decisions and
demonstrate that they considered the parties' arguments." Concepcion, 142 S. Ct. at 2404.
In considering Mr. Wyche's motion, the Court follows the Circuit's instruction in United
States v. White, 984 F.3d 76 (D.C. Cir. 2020). See United States v. Palmer, 35 F.4th 841, 850
(D.C. Cir. 2022) ("White provides our Circuit's framework to evaluate First Step Act motions").
The two-step process for ruling on a First Step Act motion is the following:
First, under section 404(a), the court must determine whether a defendant is
eligible for relief-that is, whether the movant committed a "covered offense,"
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defined as "a violation of a Federal criminal statute, the statutory penalties for
which were modified by section 2 or 3 of the Fair Sentencing Act of2010 ... ,
that was committed before August 3, 2010." First Step Act§ 404(a), 132 Stat. at
5222 ....
Second, under section 404(b), a "court that imposed a sentence for a covered
offense may ... impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act ... were in effect at the time the covered offense was committed."
First Step Act § 404(b), 132 Stat. at 5222. Put simply, once a defendant is
considered eligible, the district court exercises its "broad discretion" to decide
"whether it should reduce the sentence." White, 984 F.3d at 88 (quoting United
States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020)); see also First Step Act
§ 404(c) ("Nothing in this section shall be construed to require a court to reduce
any sentence pursuant to this section."), 132 Stat. at 5222.
Id.
III. DISCUSSION
A. Mr. Wyche Is Eligible for Resentencing Under the First Step Act
The parties agree that Mr. Wyche is eligible for resentencing under the First Step Act.
Mr. Wyche was sentenced to life in prison for his convictions of Count 1, conspiracy to
distribute and possess with the intent to distribute cocaine and cocaine base, in violation of 21
U.S.C. §§ 841(a) & 846, and Count 4, use of juveniles in drug trafficking in violation of21
U.S.C. § 845b. 4 See Wyche, 741 F.3d at 1289. At the time of his sentencing, violations of 21
U.S.C. § 841(a) & 846 involving 50 grams or more of cocaine base carried a mandatory
minimum sentence often years in prison and possibility oflife. See 21 U.S.C.
§ 841(b)(l)(A)(1989); White, 984 F.3d at 83. Section 2(a) of the Fair Sentencing Act increased
the threshold quantity in 21 U.S.C. § 841(b)(l)(A) necessary to trigger certain mandatory
minimum penalties. See 124 Stat. at 2372. With the retroactive application of the Fair Sentencing
Act through the First Step Act, 280 grams-rather than 50 grams--of cocaine base became the
4
21 U.S.C. § 845b has since been transferred to 21 U.S.C. § 861. See Crime Control Act of 1990, Pub. L. No. 101-
647, § 1002(c), 104 Stat. 4827; United States v. Brown, 16 F.3d 423,426 n.3 (D.C. Cir. 1994).
7
quantity necessary to trigger a mandatory minimum sentence often years' incarceration and a
maximum life sentence under 21 U.S.C. § 841(b)(l)(A). See 124 Stat. at 2372.
Because Mr. Wyche's statute of conviction was modified by the First Step Act, and his
offense occurred prior to August 3, 2010, he committed a covered offense and is thus eligible for
relief under Section 404.
B. This Court Will Exercise Its Discretion to Reduce Mr. Wyche's Sentence
A "district court may consider all relevant factors when determining whether an eligible
defendant merits relief under the First Step Act." Palmer, 35 F.4th at 851 (quoting White, 984
F.3d at 90). Some important factors to consider are: "new statutory minimum or maximum
penalties; current Guidelines; post-sentencing conduct; and other relevant information about a
defendant's history and conduct," to ensure that a sentence is "sufficient, but not greater than
necessary, to fulfill the purposes of [18 U.S.C.] § 3553(a)." Id. (quoting White, 984 F.3d at 90).
See also Concepcion, 142 S. Ct. at 2396 (affirming that courts "may consider other intervening
changes of law (such as changes to the Sentencing Guidelines) or changes of facts (such as
behavior in prison) in adjudicating a First Step Act motion" and are "obligated to consider
nonfrivolous arguments presented by the parties" but are "not compel[led] ... to exercise their
discretion to reduce any sentence based on those arguments").
The Court begins by addressing the new statutory minimum or maximum penalties and
current Guidelines, before applying the relevant sentencing factors listed in 18 U.S.C. § 3553(a).
1. New Statutory Minimum or Maximum Penalties
Even though the First Step Act modified Mr. Wyche's statute of conviction, the facts of
his case indicate that, were he to be sentenced today, he would still face the same minimum and
maximum penalties. As previously discussed, the Fair Sentencing Act's modification of Mr.
Wyche's original statute of conviction resulted in new statutory maximum and minimum
8
penalties for his conviction on Count 1. The Fair Sentencing Act raised the threshold quantity
required to trigger the same minimum (10 years' incarceration) and maximum (life
imprisonment) penalties for Mr. Wyche's statute of conviction. See 21 U.S.C. § 841(b)(l)(A). In
Mr. Wyche's case, the jury made no findings on quantity, but the PSR attributed approximately
31 kilograms to him. See Wyche, 741 F.3d at 1294. Thus, ifajury convicted Mr. Wyche of
conspiracy to possess with intent to distribute at least 280 grams today, he would face the same
statutory minimum and maximum sentences-ten years and life, respectively. Examination of
the new statutory minimum or maximum penalties, or lack thereof in Mr. Wyche's case, weighs
against reducing his sentence.
2. Current Sentencing Guidelines Range
Similarly, as the government notes, if Mr. Wyche were sentenced today, he would still
face a recommended sentence of life imprisonment under the Sentencing Guidelines. Gov't
Opp'n, to Def. 's 2d Suppl. Mot at 13. Because the conspiracy involved 31 kilograms, as
determined by the PSR and Circuit, see Wyche, 741 F.3d at 1294, Mr. Wyche's current base
offense level is 38. U.S.S.G., § 2Dl.l(c). With the applicable enhancements, his total offense
level would be 43. Gov't Opp'n to Def. 's 2d Suppl. Mot at 13. Under the current Guidelines,
with a criminal history ofV, Mr. Wyche's recommended Guidelines sentence would be life
imprisonment. See U.S.S.G. Manual, ch. 5, Part A (2021).
Because Mr. Wyche still faces a Guidelines recommendation of life, the government
argues that the Court should not reduce Mr. Wyche's sentence. According to the government, a
sentence reduction in this scenario would create a "windfall" for Mr. Wyche. Gov't Opp'n to
Def. 's 2d Suppl. Mot. at 12. The Court finds this argument unpersuasive, primarily because the
Supreme Court already dismissed it in Concepcion. 142 S. Ct at 2403 n.8 ("disparities are always
9
unavoidable when some, but not all, defendants are permitted to move for modifications of an
original sentence").
Perhaps anticipating the Court's reluctance to accept its argument, the government also
suggests that the Court cannot reduce Mr. Wyche's sentence below the Guidelines
recommendation of life because Mr. Wyche has not provided substantial assistance warranting
the significant downward departure. Gov't Opp'n to Def.'s 2d Suppl. Mot. at 14 (citing U.S.S.G.
§ 1B1.10). But this argument is belied by the government's own concession that "[Section] 404
of the First Step Act does not state any such limitation" on this Court's discretionary sentencing
power. Id. Moreover, as the government is well aware, "[fjrom the beginning of the Republic,
federal judges were entrusted with wide sentencing discretion" and "[t]hat discretion also carries
forward to later proceedings that may modify an original sentence." Concepcion, 142 S. Ct. at
2398. The consistent Guidelines recommendation oflife is another factor suggesting against a
sentence reduction, but not a determinative one.
3. Remaining 18 U.S.C. 3553(a) Factors
The Court will next address the relevant Section 3553(a) factors, including the nature and
circumstances of the offense, Mr. Wyche's history and characteristics, Mr. Wyche's post-
sentencing conduct, the need to avoid unwarranted sentencing disparities, and the need for the
sentence imposed. See 18 U.S.C. § 3553(a)(l)--{2), (6). As the Supreme Court recently reiterated,
in conducting a Section 3553(a) analysis, "a district court is [not] required to articulate anything
more than a brief statement ofreasons," Concepcion, 142 S. Ct. at 2404, and the First Step Act
does not "require a district court to make a point-by-point rebuttal of the parties' arguments," id.
at 2405. See Palmer, 35 F.4th at 853 ("there is no requirement that sentencing courts expressly
10
list or discuss every Section 3553(a) factor") (citing United States v. Knight, 824 F.3d 1105,
1110 (D.C. Cir. 2016)).
a. Nature and Circumstances of the Offense
As the sentencing judge recounted, Mr. Wyche was a "principal member of the
... conspiracy and a major participant in all the activities of the ... conspiracy." Wyche, 741
F.3d at 1294 (internal quotations and citation omitted). In his role, Mr. Wyche "controlled the
cocaine flow to several workers and collected money from drug sales" and in his position "he
himself made as much as $5,000 a day from the drug trade." Harris, 959 F.2d at 320. Some of
the individuals Mr. Wyche supervised in the drug trade were under the age of eighteen. Id. Not
only did the conspiracy traffic in illegal drugs, the organization "employ[ ed] firearms to
intimidate the competition and to protect the operation against the police," even going so far as
to restrain and beat a competitor for a week. Id. at 303,319.
Consistent with the Circuit's instruction that this Court "may consider both judge-found
and jury-found drug quantities as part of its exercise of discretion" under the First Step Act, this
Court will consider the quantity involved in Mr. Wyche's offense. White, 984 F.3d at 88. As
previously discussed, the PSR determined, and the sentencing judge considered, that during Mr.
Wyche's tenure as a member of the conspiracy, the drug operation handled a total of
approximately 31 kilograms of crack cocaine. Wyche, 741 F.3d at 1294. This quantity is more
than 100 times greater than the quantity of crack cocaine required to impose a life sentence after
the Fair Sentencing Act and First Step Act. See 21 U.S.C. 841(b)(l)(A).
The Court recognizes the severity of Mr. Wyche's crimes and the severity of Mr.
Wyche's sentence. The nature and circumstances of Mr. Wyche's convictions weigh against a
11
sentence reduction. However, on balance, the other Section 3553(a) factors convince this Court
that a sentence reduction is appropriate in this circumstance.
b. History and Characteristics of the Defendant
The government argues that this Court should not reduce Mr. Wyche's sentence because
his criminal history indicates that he still poses a danger to society. Gov't Opp'n to Def. 's CR
Mot. at 19. The offenses for which Mr. Wyche was convicted in this Court were not his first
brush with the law. In fact, Mr. Wyche committed his crimes in Washington, D.C. while he was
on parole for a 1978 robbery and weapons case in New York. Gov't Opp'n to Def.'s Suppl. Mot.
at 11 (citing PSR ,r 48). And Mr. Wyche still faces a 20-year sentence in Maryland for a related
drug crime.
While his criminal record is certainly troubling, Mr. Wyche's age and poor health offer
significant counterpoints to the government's assertions that releasing him would endanger the
community. At nearly seventy years old, Mr. Wyche is a cancer survivor and suffers from
numerous health conditions, including obesity, asthma, hypertension, and prediabetes. Def. 's CR
Mot. at 6. Those factors standing alone would not be sufficient without the additional evidence
presented here demonstrating that Mr. Wyche's condition is deteriorating: just this year, he
suffered a pulmonary embolism, becomes out of breath while resting, and was diagnosed with
heart failure. Def. 's Concepcion Suppl. Br. at 4-5. Additionally, statistical evidence from the
United States Sentencing Commission indicates that formerly incarcerated people released at an
age similar to Mr. Wyche exhibit the lowest rates of rearrest, reconviction, and reincarceration,
even without similar health complications. See Def.'s CR Mot. at 35 (citing U.S. SENTENCING
COMM'N, THE EFFECTS OF AGING ON RECIDIVISM AMONG FEDERAL OFFENDERS (2017)). Mr.
12
Wyche' s age and failing health, alongside the statistics, do much to assuage this Court of the
government's public safety concerns.
The Court previously determined that neither Mr. Wyche's age nor health conditions
established an extraordinary or compelling reason warranting release in the context of a motion
for compassionate release. See Wyche, 2022 WL 2643568, at *3 (denying compassionate
release). However, determining what is an extraordinary or compelling reason warranting
compassionate release and determining what is an appropriate sentence under the Section
3553(a) factors are entirely different inquiries. Sentencing judges routinely consider a host of
characteristics that are not at all extraordinary-including old age and failing health-when
imposing a sentence in the first instance. There is no reason the same should not be true for
purposes of a First Step Act motion. Moreover, Mr. Wyche's condition has further deteriorated
since the time of his compassionate release motion. See De£ 's Concepcion Suppl. Br. at 4. Here,
Mr. Wyche' s age and health conditions inform who Mr. Wyche is today and his diminished
danger to the community, which are primary purposes of the 18 U.S.C. § 3553(a)(l) inquiry.
Given the circumstances here, this factor favors a sentence reduction.
c. Defendant's Post-Sentencing Conduct
As the Supreme Court has instructed, "in deciding whether to grant First Step Act
motions and in deciding how much to reduce sentences," district courts may "look[ ] to
postsentencing evidence of violence or prison infractions as probative." Concepcion, 142 S. Ct.
at 2403; see also Pepper v. United States, 562 U.S. 476,491 (2011) ("[E]vidence of
postsentencing rehabilitation may be highly relevant to several of the§ 3553(a) factors that
Congress has expressly instructed district courts to consider at sentencing."). In fact, in this
District, post-sentencing conduct "is given substantial weight." See United States v. White, No.
13
93-cr-97 (BAH), 2022 WL 3646614, *22 (D.D.C. Aug. 24, 2022). In evaluating a defendant's
post-sentencing conduct, the Court considers the defendant as he appears today, "not on the date
of his offense or the date of his conviction." Concepcion, 142 S. Ct. at 2396.
The letters submitted on behalf of Mr. Wyche demonstrate his strong work ethic and trust
that the prison has placed in him. According to his work supervisor, USP Lewisburg Cook
Supervisor Melissa Shilo, Mr. Wyche "exemplifie[s] extraordinary work ethic" and has become
"instrumental in the day to day operations of food service." Shilo Letter., Ex. G to Def.'s CR
Mot., ECF No. 517-2, at 61-62. Mr. Wyche's demonstrated track record of consistency and
dependability in food service resulted in his promotion to employment in the officer's mess hall,
which Mr. Wyche's former fellow inmate Mr. Timothy Whaley describes as "one of the most
prestigious jobs to work in prison." Whaley Letter, Ex. 0 to Def. 's CR Mot., ECF No. 517-2, at
132-33. Mr. Wyche has held his position in the officer's mess hall for more than a decade. Id.
Furthermore, Mr. Wyche earned the respect of Bureau of Prisons officials, such that his
recommendations hold influence with prison's allocation of work assignments; as Mr. Whaley
recounts, he was added to the staff for the officer's mess hall upon Mr. Wyche's
recommendation. Id. The Bureau of Prisons concludes that inmates with a work history such as
Mr. Wyche's have extremely low recidivism rates. See WILLIAM G. SAYLOR & GERALD G. GAES,
U.S. FED. BUREAU OF PRISONS, PREP: TRAINING INMATES THROUGH INDUSTRIAL WORK
PARTICIPATION, AND VOCATIONAL AND APPRENTICESHIP INSTRUCTION (1996), at 9-10.
Along with Mr. Wyche's diligence in his work assignments, he has engaged in a number
of educational programming opportunities during his incarceration. Mr. Wyche received his
GED, enrolled in college classes, and participated in programming on diverse topics such as
parenting, psychology, music, screenplay, and Spanish. Inmate Skills Dev. Plan (2020), Ex. F to
14
Def.'s CR Mot., ECF No. 517-2, at 50-60. The government argues that Mr. Wyche's
programming activities "show little effort with respect to rehabilitation" especially since he
enrolled in only a handful of vocational courses. Gov't Opp'n to Def.'s 2d Suppl. Mot. at 15-16.
But as Mr. Wyche correctly points out, the government does not offer specific programming
opportunities in which Mr. Wyche could or should have participated, especially considering his
age, physical limitations, and the curtailment of programming as a result of the COVID-19
pandemic. Def.'s Reply to Gov't Opp'n to Def.'s 2d Suppl. Mot. at 3. Regardless, the activities
that Mr. Wyche did participate in-namely his work in food service and his achievement of the
ServSafe certification-greatly increase his likelihood of securing employment upon release. See
Ex. F to Def.' s CR Mot.
Mr. Wyche's disciplinary record has been spotless for the last two decades. See Def. 's
CR Mot. at 27; Inmate Skills Dev. Plan (2015), Ex. L to Def. 's CR Mot., ECF No. 517-2, at 106
(noting that his last disciplinary infraction was in 1999). The government looks to Mr. Wyche's
six earlier disciplinary infractions during his incarceration and argues that these infractions
weigh against his release. See Gov't Opp'n to Def.'s 2d Suppl. Mot. at 15. Mr. Wyche's
disciplinary history includes the following: three Level 100 infractions-possessing a dangerous
weapon (in 1993), use of drugs/alcohol (in 1998), and introduction of drugs/alcohol (in 1999)-
one Level 200 infraction-fighting with another person (in 1995)-and two Level 100
infractions-refusing to obey an order and being insolent to a staff member (both in 1994). Ex. L
to Def. 's CR Mot. It is troubling that half of Mr. Wyche's offenses, and the three most recent,
were classified by the Bureau of Prisons as Level 100, or the "greatest severity." Nevertheless,
the Court is satisfied that Mr. Wyche's track record of more than two decades without a
disciplinary infraction, of any level, is more compelling evidence of his changed character.
15
Mr. Wyche has also maintained positive relationships with others. Mr. Whaley describes
Mr. Wyche as his "mentor," saying that Mr. Wyche "made it paramount that I understand the
importance of changing my life for the better" and that Mr. Wyche is "a model inmate who has
constantly been an influence for younger men in prison that promotes self awareness,
accountability, and productivity at most." Whaley Letter. Mr. Wyche still has close relationships
with his goddaughters, see Def.' s CR Mot. at 26, and his romantic partner, Ms. Diane Webb, id.
at 29. In addition to maintaining close bonds with family members and building relationships
with fellow inmates, Mr. Wyche forged relationships with members of the public. See, e.g., Amir
Letter, Ex. N to Def.'s CR Mot., ECF No. 517-2, at 130-31.
Finally, Mr. Wyche submitted a release plan. Upon release, Mr. Wyche plans to live with
his goddaughter, Ms. Ayana Webb, in Washington, D.C. See Webb Letter, Ex. M to Def.'s CR
Mot., ECF No. 517-2, at 128-29. Ms. Webb has pledged to support Mr. Wyche financially as
well as provide housing. See id. Mr. Whaley also offered to provide Mr. Wyche accommodation
and employment at Mr. Whaley's self-owned trucking business, should Mr. Wyche need it. See
Whaley Letter. In terms of other potential employment, Ms. Shilo believes that "[a]ll of the skills
and traits that [Mr.] Wyche has acquired in Food service[] will be instrumental in his transition
to a productive member of society" and offered to serve as a professional reference. See Shilo
Letter. While it is unclear to what extent Mr. Wyche's poor health may limit his ability to pursue
certain employment opportunities, offers from multiple individuals to support Mr. Wyche with
finances and accommodation is a sufficient release plan, contrary to the government's assertion.
See Gov't Opp'n to Defs CR Mot. at 22-23.
The letters submitted to the Court demonstrate the sincerity of Mr. Wyche's approach to
his work responsibilities and the significant impact Mr. Wyche has had on individuals both
16
inside and outside of prison. His decades-long track record free of disciplinary violations
underscores the letters' description of Mr. Wyche's positive attributes. Furthermore, Mr. Wyche
has maintained strong emotional bonds with family members and friends who are willing to
support him, should he be released. The Court finds that, on balance, Mr. Wyche's post-
sentencing conduct suggests that he would contribute constructively to his community if
released.
d. Need to Avoid Unwarranted Sentence Disparities
A reduction in Mr. Wyche's sentence is warranted to avoid sentencing disparities with
co-defendants in his case as well as other similarly situated defendants in this District.
As Mr. Wyche observes, Palmer, the leader of the conspiracy, is the only co-defendant
other than Mr. Wyche still incarcerated. See Def. 's CR Mot. at 13. Mr. Wyche's motion focuses
on two of his co-defendants, Lamar Harris and Richard Smith, to illustrate how he is currently
experiencing a sentencing disparity. Id. Mr. Wyche, Harris, and Smith were all originally
sentenced to life imprisonment for their participation in the conspiracy. Id. Harris, who was
Palmer's "right-hand man," as well as "a major figure in the drug distribution ring" "personally
used guns and actual violence to further his business," including one time where he "was going
to shoot somebody, but the gun jammed/' and another instance where he likely "placed [an] uzi
in the mouth" of a woman because she permitted rival dealers to use her apartment. Id. at 17
(citing Mem. Op. & Order, United States v. Harris, No. 89-cr-36-2 (BAH) (D.D.C. July 7, 2017),
ECF No. 460, at 2). Smith, like Mr. Wyche, was considered to be a "principal lieutenant[ ]" of
the organization. See Wyche, 741 F.3d at 1290.
Harris moved for and received a sentence reduction based on retroactive changes to the
Guidelines. Def.'s CR Mot. at 13. In 2007, the Sentencing Commission reduced the penalty
recommendation applicable to offenses involving crack cocaine. See id. at 14. As a result,
17
Harris's new total offense level was 37 and he had a criminal history category oflL See Harris
Mot., United States v. Harris, Cr. No. 89-cr-36-2 (RMU) (D.D.C. Oct. 1, 2009), ECF No. 315, at
4. In 2009, the Court reduced Harris's life sentence to 325 months, or just over 27 years. See
Order, United States v. Harris, No. 89-cr-36-2 (RMU) (D.D.C. Oct. 20, 2009), ECF No. 319.
Harris served the remainder of his time and was released from prison in 2012. See Def;'s CR
Mot. at 13.
Smith successfully moved for a sentence reduction two separate times. After the 2007
changes to the crack cocaine penalty recommendations, Smith's new offense level became 37,
and he, like Mr. Wyche, had a criminal history category ofV. Smith Mot., United States v.
Smith, No. 89-cr-36-3 (RMU) (D.D.C. June 5, 2008), ECF No. 302, at 5. In 2008, the Court
reduced Smith's sentence to 405 months, or just over 33 years. See Order, United States v. Smith,
No. 89-cr-36-3 (RMU) (D.D.C. Sept. 18, 2008), ECF No. 308. In 2015, Smith again moved to
reduce his sentence, this time under the 2014 Amendment 782 to the Guidelines, which lowered
his total offense level to 35. See Smith Am. 782 Mot., United States v. Smith, No. 89-cr-36-3
(ESH) (D.D.C. Aug. 13, 2015), ECF No. 434. In 2016, the Court further reduced Smith's
sentence to 370 months, or just under 31 years. See Order, United States v. Smith, No. 89-cr-36-3
(ESH) (D.D.C. March 31, 2016), ECF No. 440. Smith was released from prison in 2016. See
Def 's CR Mot. at 13.
This Court previously found that potential sentencing disparities between Mr. Wyche,
Harris, and Smith did not constitute an extraordinary or compelling reason for his own sentence
reduction, as required by 18 U.S.C. § 3582(c)(2). See Wyche, 2022 WL 2643568, at *6. But that
is, once again, a different inquiry, and such a disparity is a reason militating in favor of Mr.
Wyche's release under an 18 U.S.C. § 3553(a) analysis. Harris, the second-most culpable
18
member of the conspiracy, and Smith, equally culpable to Mr. Wyche in the conspiracy and with
the same criminal history, received reduced sentences and are no longer incarcerated. The Court
recognizes that Smith, Mr. Wyche's closest analog in the conspiracy, had a lower adjusted
offense level and was resentenced to a shorter sentence than the one the Court imposes today.
Yet Mr. Wyche has already served eight more years in prison that Smith, a term that this Court
finds more than offsets the difference in Guidelines calculations. 5
Reducing Mr. Wyche's sentence is also necessary to create consistency with defendants
who received sentence reductions :from other courts in this District. In August of this year, Chief
Judge Howell granted First Step Act relief to two defendants, Antone White and Eric Hicks,
reducing their original life sentences. See White, 2022 WL .3646614, at * 1. Like Mr. Wyche,
both White and Hicks participated in a large-scale crack cocaine distribution conspiracy in
Washington, D.C. in the late 1980s, were found guilty of conspiracy to distribute and possess
with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 & 841, among other
charges, and were sentenced to life in prison. Id. at *4-*5. Chief Judge Howell reduced their
original life sentences to 35 and 33 years, respectively. Id. at *12-*14.
Mr. Wyche's case presents even more compelling factors weighing in favor of a sentence
reduction. Most importantly, Mr. Wyche's criminal history differs significantly :from White and
Hicks. Chief Judge Howell noted that White and Hicks were "kingpins in the drug trade," who
had engaged in "obstructive conduct" that "was designed to undermine the operation of the
criminal justice system," as well as "violent conduct, including murders." Id. at *13, *14.
5
According to the most recent version of the Guidelines, the sentence range for a defendant with a total offense
level of35 and criminal history category ofV (like Smith) is 262-327 months and the sentence range for a
defendant with a total offense level of 41 and criminal history category of V (like Mr. Wyche, as the Circuit
calculated in its most recent opinion) is 360 months-life. See U.S.S.G. Manual, ch. 5, Part A (2021). Comparing the
higher end of the first range and the lower end of the second range results in a difference of fewer than three years.
19
Though Mr. Wyche used firearms to carry out his criminal activity, he was never implicated in
violent activities on the order of White or Hicks. See Def.'s Concepcion Suppl. Br. at 4.
Moreover, those defendants-and White in particular-had troubling post-sentencing
disciplinary histories. As discussed above, Mr. Wyche was cited for 6 infractions over the course
of more than 30 years, with the last infraction occurring in 1999. White, on the other hand,
engaged in 29 disciplinary infractions, with the most recent infraction occurring in 2015. See
White, 2022 WL 3646614, at *19. Nearly a third of White's infractions involved weapons,
violence, or threats to commit violence. Id. Hicks, while engaging in fewer violations than Mr.
Wyche, committed his last violation a decade after Mr. Wyche's last violation. Id.Any concern about this Court's decision to reduce Mr. Wyche's sentence to 28 years,
when White and Hicks received reductions to 35 and 33 years, can be mitigated based on clear
factual distinctions between the cases. Mr. Wyche's crimes did not involve violence like Hicks
or White. Mr. Wyche has already served more time than Hicks. And, Mr. Wyche spent five more
years in prison than either White or Hicks before moving for relief under the First Step Act. See
White, 2022 WL 3646614, at *l. These factual distinctions convince the Court that Mr. Wyche's
sentence reduction is appropriate.
Reducing Mr. Wyche's sentence also maintains consistency with the sentence reductions
Judge Hogan granted to Kevin Williams-Davis and McKinley Board, upon which Chief Judge
Howell relied when reducing the sentences of White and Hicks. Williams-Davis was a leader and
Board was a lieutenant in "an eight-year, multi-million dollar drug operation in northeast
Washington, D.C.," White, 2022 WL 3646614, at *22 (internal quotations and citation omitted),
moving more than 300,000 kilograms of marijuana, not to mention other illicit substances,
between 1983 and 1991. See Mot. to Reduce Sentence, United States v. Board, No. 91-cr-559-11
20
(TFH), ECF No. 2331, at 8 (quoting Board Sentencing Tr. 8:1-6 (Mar. 10, 1994), ECF No.
1493). Both Williams-Davis and Board were convicted of 17 counts-including two counts of
second-degree murder for Williams-Davis-and sentenced to life. See Mot. to Reduce Sentence,
United States v. Williams-Davis, No. 91-cr-559-1 (TFH), ECF No. 2365, at 13-14; Board Mot.
to Reduce Sentence at 8-9.
Both Williams-Davis and Board moved for sentence reductions and Judge Hogan,
focusing on their post-sentencing conduct, reduced their sentences to time-served. See White,
2022 WL 3646614, at *22. Williams-Davis's life sentence was reduced to approximately 30
years' incarceration and Board's life sentence was reduced to approximately 28 years. See Order,
United States v. Williams-Davis, No. 91-cr-559-1 (TFH), ECF No. 2376; Order, United States v.
Board, No. 91-cr-559-11 (TFH), ECF No. 2344.
A comparison of Mr. Wyche's criminal history and post-sentencing conduct with those of
Williams-Davis and Board further indicates to this Court that a sentence reduction is warranted
in this case. Mr. Wyche participated in his drug conspiracy for a little more than a year while
Williams-Davis and Board were active members in a conspiracy that lasted eight years. Most
critically, Mr. Wyche was not convicted of any violent crimes, let alone murder, unlike
Williams-Davis. Moreover, Mr. Wyche's post-sentencing conduct bears strong similarities to the
positive qualities Williams-Davis and Board exhibited. Like Williams-Davis, Bureau of Prisons
officials praised Mr. Wyche for his strong work ethic and example to other inmates. See White,
2022 WL 3646614, at *22. Additionally, like Board, Mr. Wyche's disciplinary history is largely
unblemished. Id. Taking the differences in Mr. Wyche's criminal history as compared to
Williams-Davis and Board together with the similarities between the post-sentencing conduct
exhibited by all three, the Court finds it appropriate to reduce Mr. Wyche's sentence.
21
e. Need for the Sentence Imposed
As the sentencing judge noted, the two primary pmposes of Mr. Wyche's sentence were
punishment and deterrence. See Def. 's CR Mot. at 33. This Court is satisfied that both purposes
may still be served with a reduced sentence. The more than three decades Mr. Wyche has been
incarcerated, combined with his specific health declines, has greatly reduced his overall life
expectancy. See DEP'T OF JUST., OFF. OF INSP. GEN., THE IMPACT OF AN AGING INMATE
POPULATION ON THE FEDERAL BUREAU OF PRISONS (2016), at 1-2. The significant time spent
incarcerated and separated from the outside world, including his goddaughters and partner,
appears to be adequate punishment for Mr. Wyche as well as deterrence both to him and others.
4. Mr. Wyche's Pending Consecutive Sentence in Maryland
Finally, the Court addresses the impact of the reduction of Mr. Wyche's federal sentence
on his consecutive sentence in Maryland. Maryland law provides that "[a] defendant whose
sentence is set aside because of a direct or collateral attack and who is ... resentenced for the
same crime ... shall receive credit against and a reduction of the term ... for all time spent in
custody under the prior sentence." Md. Code Ann., Crim. Proc. § 6-218(c) (West 2022); see also
United States v. Brawner, No. 09-cr-182 (DKC), 2020 WL 1929442, at *3 (D. Md. Apr. 21,
2020). As a Maryland appellate court has stated, both the text and legislative intent of Section 6-
218 "require that credit be given for time served regardless of the state(s) of confinement."
Fenton v. State, No. 1111, 2018 WL 2446973, at *6 (Md. Ct. Spec. App. May 30, 2018). Mr.
Wyche's counsel represents that the Chair of the Maryland Parole Commission has confirmed
that any overserved time on his federal sentence may be credited toward his pending Maryland
state sentence. See Def. 's CR Mot. at 38-39.
22
Mr. Wyche argues that this Court should reduce Mr. Wyche's sentence to less than the
time he has already served, so that any excess time spent incarcerated can be credited toward his
outstanding Maryland sentence. See id. The government resists this on two fronts, neither of
which are persuasive to this Court.
First, the government implies that a sentence reduction resulting in overserved time
would impermissibly allow Mr. Wyche to "bank time" "against potential future incarceration"
such as "violations committed by defendant while on supervised release in this case." See Gov't
Opp'n to De£ 's CR Mot. at 1 n.1 (internal quotation marks and citation omitted). This
characterization of Mr. Wyche's argument misses the mark. As Mr. Wyche notes, he seeks a
sentence reduction here that would "allow him to credit time to his Maryland sentence for a
crime he has already committed, rather than for some speculative future crime." Def. 's Reply to
Gov't Opp 'n to Def.'s CR Mot. at 14 (emphasis in original).
Second, the government insists that an action by this Court to reduce Mr. Wyche's
sentence and make him immediately eligible for parole would offend the sovereignty of the
Maryland state judicial system. See Gov't Opp'n to Def.'s CR Mot. at 1 n.l. The government
primarily relies on two cases-United States v. Ballard, 6 F.3d 1502 (11th Cir. 1993) and United
States v. Mattea, 895 F.3d 762 (D.C. Cir. 2018)-in support of this argument, both of which
actually support Mr. Wyche's position.
In Ballard, the Eleventh Circuit acknowledged that "each sovereign is entitled to have the
defendant serve its respective sentence," but nevertheless held that the district court's imposition
of a federal sentence to run consecutively to the yet-to-be-imposed state sentence did not violate
dual sovereignty, even though it restrained the state court's ability to impose a concurrent
sentence. See 6 F.3d at 1509-10. Thus, as Mr. Wyche correctly points out, the case stands for a
23
proposition contrary to the one the government is arguing. Def. 's Reply to Gov't Opp'n to Def. 's
CR Mot. at 16 & n.3. The universality of the holding in Ballard appears to be somewhat limited,
given that it was based in part on the defendant's "blatant attempt to manipulate the federal and
state sentencing courts" by committing a separate federal crime and pleading guilty while the
trial for his state charge was pending, thereby "attempting to coordinate his federal and state
sentences so that they would be served concurrently in federal prison." 6 F.3d at 1510.
Regardless, Mr. Wyche' s case presents even less of a dual sovereignty concern than Ballard
because Mr. Wyche was already convicted and sentenced by the Maryland state court. The
government's reference to cases ruling that one federal district court lacked authority to impose a
sentence to run consecutively to a future, yet-to-be-determined sentence by another federal
district court are unavailing for the same reason: Maryland has already imposed its sentence. See
Gov't Opp'n to Def.'s CR Mot. at 1-2 n.l (citing United States v. Montes-Ruiz, 745 F.3d 1286,
1292-93 (9th Cir. 2014), United States v. Quintana-Gomez, 521 F.3d 495,497 (5th Cir. 2008),
and United States v. Smith, 472 F.3d 222, 227 (4th Cir. 2006)).
The government's citation to in-circuit precedent is·not quite on-point. In Mattea, the
defendant argued that the district court abused its discretion by imposing a harsher sentence for a
child pornography conviction than other district courts had. See 895 F.3d at 763. The Circuit
rejected the defendant's argument, unequivocally stating that the "factors that district courts must
consider at sentencing are vague, open-ended, and conflicting" and "every sentencing decision
involves its own set of facts and circumstances regarding the offense and the offender." Id.
(quoting United States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008)). This case bears
little relevance to the question of a federal re-sentencing's impact on a pending state sentence.
24
This Court reduces Mr. Wyche's sentence to 28 years, a number the Court reached by
examining sentence reductions granted to similarly-situated defendants in this District and re-
analyzing the sentencing factors as applied to Mr. Wyche in light of 30 years of post-sentencing
conduct. Because Mr. Wyche has already served more than 28 years in prison, the Maryland
~arole Commission, consistent with Maryland state law, may credit his overserved time toward
his outstanding Maryland sentence in determining his eligibility for parole in Maryland. Any
"invasion" of the state court's sentencing province was by the Maryland legislature when it
passed a statute allowing credited time, not by this Court today.
* * *
"Nothing in the text and structure of the First Step Act expressly, or even implicitly,
overcomes the established tradition of district courts' sentencing discretion." Concepcion, 142 S.
Ct. at 2401. This Court, using its discretion, concludes that the 18 U.S.C. § 3553(a) sentencing
factors demonstrate that the appropriateness of a sentence reduction for Mr. Wyche.
IV. CONCLUSION
Mr. Wyche is eligible for a reduced sentence under Section 404 of the First Step Act and
this Court will exercise its discretion to reduce Mr. Wyche's sentence. His motion is accordingly
GRANTED IN PART. His sentence for his conviction on Counts 1 and 4 is reduced from life
imprisonment to 28 years. A separate and consistent Order shall issue this date.
SIGNED this - - -~- k..
_ oay of January, 2023.
Royce C. Lamberth
United States District Judge
25