United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE
IS HEREBY ORDERED that Kojak Batiste's
Motion to Reduce Sentence under the First
Step Act (Rec. Doc. 75) is DENIED.
26, 2006, Kojak Batiste was indicted by a grand jury in the
United States District Court for the Eastern District of
Louisiana with one count of knowingly and intentionally
distributing fifty grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A).
March 7, 2007, Batiste pleaded guilty to the one count
indictment pursuant to a negotiated plea agreement. Under the
version of 21 U.S.C. § 841(b)(1)(A)(iii) then in effect,
the statutory penalty was 10 years to life imprisonment.
However, because of Batiste's career offender
designation, he faced an enhanced statutory sentencing range
of 20 years to life, with a mandatory minimum of 240 months.
20, 2007, Batiste filed objections to the presentence
investigation report. Batiste argued that one of his two
predicate convictions for career offender status, aggravated
flight from an officer in violation of La. Rev. Stat. §
14:108.1, did not constitute a crime of violence and thus
could not be used as the basis for a finding that he was a
court took up the objection at the June 27, 2007 sentencing.
Then, as now, to qualify as a career offender, a defendant
must have had “at least two prior felony convictions of
either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). However, under the
law prevailing at that time, “crime of violence”
was defined by the career offender Guideline to include any
felony offense that: "is burglary of a dwelling, arson,
or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another." U.S.S.G. § 4B1.2(a)
(2006). In Batiste's case, his aggravated flight from an
officer charge involved Batiste forcing another vehicle off
the street and almost striking a pedestrian. Finding that
this crime presented a serious potential risk of physical
injury to another, the court determined it was a crime of
violence and a valid predicate offense for a career offender
designation. The court overruled Batiste's objection, and
determined that his total offense level was 34 and his
criminal history was category VI, indicating a guideline
range of 262-327 months imprisonment. The court sentenced
Batiste to 262 months imprisonment. His projected release
date is May 30, 2025.
now moves the court to reduce his current sentence of 262
months to 120 months or time served, pursuant to Section 404
(b) of the First Step Act of 2018. He seeks a reduction based
on several grounds. First, while Batiste was designated as a
career offender at his original sentencing, he argues that he
would not so qualify if sentenced today, so that his
Guidelines range would be 77 to 96 months, restricted to 120
months by the statutory minimum. Second, he cites to his
positive post-conviction conduct in prison. Finally, Batiste
urges that the totality of the circumstances in this case
demonstrates that the time he has served (approximately 13
years) is sufficient to punish him for his crime, protect the
public, deter him from future crime, and provide effective
correctional treatment and vocational training.
Government opposes a reduction, arguing that although Batiste
is eligible for consideration because he was sentenced prior
to August 3, 2010 for an offense covered by the First Step
Act, his designation as a career offender under the
Guidelines remains unchanged, and thus the applicable
Guideline range of 262-327 months remains unchanged.
2 of the Fair Sentencing Act of 2010,  entitled Cocaine
Sentencing Disparity Reduction, increased the drug quantity
triggering the five-year mandatory minimum for crack offenses
from 5 grams to 28 grams, and increased the drug quantity
triggering the ten-year mandatory minimum from 50 grams to
280 grams. Section 404(a) of the First Step Act of 2018 made
these new mandatory minimum rules retroactive to
"covered offenses" - offenses to which the modified
statutory penalties applied and which were committed before
August 3, 2010. Section 404(b) of the First Step Act
authorizes “[a] court that imposed a sentence for a
covered offense may, on motion of the defendant . . . impose
a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time the covered
offense was committed.”
undisputed that Batiste's offense involved a quantity of
approximately 60 grams of crack cocaine and thus the
applicable mandatory minimum was modified from 240 months to
120 months by section 2 of the Fair Sentencing Act, and that
it was committed before August 3, 2010. Thus, Batiste's
offense is a "covered offense" under the First Step
Act, and the new applicable mandatory minimum is 120 months.
However, because Batiste was designated a career offender,
his Guideline sentencing range remains at 262-327 months.
urges the court to re-sentence him to the current mandatory
minimum of 120 months or time served, emphasizing that under
current law he would not be classified as a career offender.
Under present law, the career offender Guideline ...