About Michael Powell
Michael Powell was in prison having just been sentenced to 151 months on drug charges. Of particular note in his case, was the fact he had been enhanced as a career offender. The Career Offender Enhancement increased his guideline range and, as a result, his original sentence substantially.
Michael Powell, Jeremy Gordon and United States vs. Havis
Powell’s Three Resentencing Hearing Dates
At Powell’s first sentencing date, the judge indicated that the case should be continued. The reason for the continuance was for the Sixth Circuit to decide the case of a similarly situated defendant. This meant that Powell and Jeremy would have to wait several weeks to come back to the court. Ultimately, the similar situated case was sent back down to the district court without explanation, leaving the attorneys to make their arguments.
The second time the case was brought back for resentencing, Attorney Jeremy Gordon asked the court for another extension of time. This was based on news that a person in Powell’s detention center was deemed to not be a career offender after Havis. This led to a substantial reduction in time for that person. Jeremy asked for an extension of time in order to try to find out more about that case and to seek the transcripts.
At the third resentencing date, attorney Jeremy Gordon brought forth evidence in caselaw indicating why Powell should not be deemed a career offender. The judge agreed and did not apply that enhancement to Powell’s case. The impact of that decision was that Powell’s advisory guideline range was substantially lowered.
portion of a previous newsletter where we gave a more technical discussion of the arguments that were made:
After Powell’s case was remanded, the government filed a sentencing memorandum arguing that Powell’s prior convictions still qualified for career offender purposes based on a single judge’s concurring opinion in the denial of the government’s motion for reconsideration of the en banc decision in Havis. Needless to say, the Firm argued that the concurring opinion had little weight in Powell’s case.
Even so, another district court in the Northern District of Ohio followed the concurring opinion and found O.R.C. 2925.03 continued to qualify as a drug trafficking crime regardless of Havis’ holding. However, a few weeks later another district court found the opposite, concluding that 2925.03 is an attempt crime and does not qualify after Havis.
When it finally came time for Powell to be re-sentenced, each side presented its arguments. In addition to arguing that 2925.03 no longer qualified, Powell also argued that the instant offense of conspiracy under 21 U.S.C. 846 also does not qualify because conspiracy-along with attempt-is only mentioned in the Guidelines commentary.
Without deciding the issue regarding O.R.C. 2925.03, the court did find the Sixth Circuit’s opinion in United States v. Orr, No. 18-6054, to be persuasive, and held that Powell’s instant offense for conspiracy could not be used to enhance Powell’s sentence as a career offender. Powell’s 140-month sentence was reduced to 74-months.
Ultimately, the judge reduced Powell’s sentenced to 74 months. Later that year, Powell was placed on home confinement due to the CARES Act.
In Micheal Powell's Words
Attorney Jeremy Gordon's Comments
This is what attorney Jeremy Gordon had to say about the second extension of time:
The most important part of the litigation to me was the second motion for extension of time that we asked for. When I was visiting Mr. Powell before court he indicated that another person had been declared not to be a career offender based on the same issue. That meant that his guideline range was lower and his sentence was lower. When Mr. Powell told me that, I knew that the appropriate thing to do would be to ask the judge for an extension of time so that we could find out if that case applied to Powell. I knew that it would mean that I had to come back to Ohio, but it was worth it for the client.
Many times, on these cases, the incarcerated people tell me that they brought up something like this and their lawyer told them that it could get fixed up on an appeal. But then it never does. I thought about those incarcerated people when I asked for the extension of time in this case. Ultimately, it worked out for him in a very big way and I couldn’t be happier.