7th Circuit remands denial of request for crack cocaine sentence reduction

A man sentenced to 30 years in federal prison for his role as a Gary gang member who sold large quantities of crack cocaine will have a new shot at a sentence modification, as will the judge who wrote that the defendant may have been linked to several gang-related murders.

William J. Davidson’s 2003 conviction of two counts of distributing at least 50 grams of crack cocaine was affirmed on appeal. Circuit Judge Richard Posner wrote Wednesday in United States of America v. William J. Davidson, 14-1158, that a District judge in Hammond subsequently erred in denying Davidson’s motion for sentence reduction under revised guidelines made retroactive in 2011.

“(W)hether the defendant in this case is liable for the sale of illegal drugs by other members of the conspiracy that he had joined, in an amount in excess of the limit (8.4 kilograms) for the sentence reduction that he seeks, depends not only on whether the sale quantity was foreseeable to him (which the judge found that it was), but also on whether he joined with those other conspirators in a joint undertaking of which the making of those sales was an objective, or had agreed to join in such an undertaking. And that is a question that neither the district judge nor the government addressed,” Posner wrote for the panel.

Posner also noted that in sentencing Davidson in 2003, District Judge James T. Moody remarked that “‘more likely than not, he (Davidson) was a shooter,’ that is, he had been involved, as either an accomplice or the actual triggerman, in murders carried out in furtherance of the conspiracy” during his three years of membership in the Concord Affiliated gang.

“… It is noteworthy that nowhere in his opinion denying the sentence reduction does the judge treat the murders as relevant conduct; rather he treats the gang’s entire sales during the period of the defendant’s membership as relevant conduct,” Posner wrote.

“The possible significance of the murders to the question of the defendant’s relevant conduct thus remains an unresolved issue. It is a factual issue for the district judge to resolve in the first instance, as are any other factual issues regarding the defendant’s relevant conduct.”