Petition for Writ of Certiorari — Perry Cousins, aka Pzo, Petitioner v. United States
Supreme Court briefJan 10, 2022
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY COUSINS, a/k/a Pzo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Rebecca Beach Smith, Senior District Judge. (4:10-cr-00047-RBS-TEM1)
Submitted: March 19,2021
Decided: September 10,2021
Before MOTZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Perry Cousins, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Perry Cousins appeals the district court’s order denying his motion seeking
reconsideration of its prior order granting in part and denying in part his motion for
reduction of sentence under § 404(b) of the First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194, 5222.
We have reviewed the record and find no reversible error.
Accordingly, we grant Cousins’ motions to amend or correct informal brief and to amend
and clarify the record pertaining to the informal brief, treat those motions as supplemental
informal briefs, deny Cousins’ motion to appoint counsel, and affirm for the reasons stated
by the district court. United States v. Cousins, No. 4:10-cr-00047-RBS-TEM-l (E.D. Va.
July 10, 2020). We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
2
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FILED: October 19, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
(4:10-cr-00047-RBS-TEM-1)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PERRY COUSINS, a/k/a Pzo
Defendant - Appellant
ORDER
The court denies the petition for rehearing and rehearing en banc. No judge
requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.
Entered at the direction of the panel: Judge Motz, Judge Floyd, and Judge
Harris.
For the Court
Is! Patricia S. Connor. Clerk
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FILED: September 10, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
(4:10-cr-00047-RBS-TEM-l)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PERRY COUSINS, a/k/a Pzo
Defendant - Appellant
JUDGMENT
In accordance with the decision of this court, the judgment of the district
court is affirmed.
This judgment shall take effect upon issuance of this court’s mandate in
accordance with Fed. R. App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK
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FILED: September 10, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087,
US v. Perry Cousins
4:10-cr-00047-RBS-TEM-1
NOTICE OF JUDGMENT
Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please
be advised of the following time periods:
PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ
of certiorari runs from the date of entry of the judgment sought to be reviewed, and
not from the date of issuance of the mandate. If a petition for rehearing is timely
filed in the court of appeals, the time to file the petition for writ of certiorari for all
parties runs from the date of the denial of the petition for rehearing or, if the
petition for rehearing is granted, the subsequent entry of judgment. See Rule 13 of
the Rules of the Supreme Court of the United States; www.supremecourt. gov.
VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED
COUNSEL: Vouchers must be submitted within 60 days of entry of judgment or
denial of rehearing, whichever is later. If counsel files a petition for certiorari, the
60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is
being made from CJA funds, counsel should submit the CJA 20 or CJA 30
Voucher through the CJA eVoucher system. In cases not covered by the Criminal
Justice Act, counsel should submit the Assigned Counsel Voucher to the clerk's
office for payment from the Attorney Admission Fund. An Assigned Counsel
Voucher will be sent to counsel shortly after entry of judgment. Forms and
instructions are also available on the court’s web site, www.ca4.uscourts.gov, or
from the clerk's office.
BILL OF COSTS: A party to whom costs are allowable, who desires taxation of
costs, shall file a Bill of Costs within 14 calendar days of entry ofjudgment.
(FRAP 39, Loc. R. 39(b)).
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PETITION FOR REHEARING AND PETITION FOR REHEARING EN
BANC: A petition for rehearing must be filed within 14 calendar days after entry
of judgment, except that in civil cases in which the United States or its officer or
agency is a party, the petition must be filed within 45 days after entry of judgment.
A petition for rehearing en banc must be filed within the same time limits and in
the same document as the petition for rehearing and must be clearly identified in
the title. The only grounds for an extension of time to file a petition for rehearing
are the death or serious illness of counsel or a family member (or of a party or
family member in pro se cases) or an extraordinary circumstance wholly beyond
the control of counsel or a party proceeding without counsel.
Each case number to which the petition applies must be listed on the petition and
included in the docket entry to identify the cases to which the petition applies. A
timely filed petition for rehearing or petition for rehearing en banc stays the
mandate and tolls the running of time for filing a petition for writ of certiorari. In
consolidated criminal appeals, the filing of a petition for rehearing does not stay
the mandate as to co-defendants not joining in the petition for rehearing. In
consolidated civil appeals arising from the same civil action, the court's mandate
will issue at the same time in all appeals.
A petition for rehearing must contain an introduction stating that, in counsel's
judgment, one or more of the following situations exist: (1) a material factual or
legal matter was overlooked; (2) a change in the law occurred after submission of
the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.
Supreme Court, this court, or another court of appeals, and the conflict was not
addressed; or (4) the case involves one or more questions of exceptional
importance. A petition for rehearing, with or without a petition for rehearing en
banc, may not exceed 3900 words if prepared by computer and may not exceed 15
pages if handwritten or prepared on a typewriter. Copies are not required unless
requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).
MANDATE: In original proceedings before this court, there is no mandate. Unless
the court shortens or extends the time, in all other cases, the mandate issues 7 days
after the expiration of the time for filing a petition for rehearing. A timely petition
for rehearing, petition for rehearing en banc, or motion to stay the mandate will
stay issuance of the mandate. If the petition or motion is denied, the mandate will
issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless
the motion presents a substantial question or otherwise sets forth good or probable
cause for a stay. (FRAP 41, Loc. R. 41).
Case 4:10-cr-00047-RBS-TEM Document 399 Filed 02/12/20 Page 1 of 3 PagelD# 2926
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Newport News Division
v
FEB 1 2 2020
.
CLERK, U.S. DISTRICT COURT
NORFOLK VA
UNITED STATES OF AMERICA,
v.
NO. 4:10cr47-l
PERRY COUSINS,
Defendant.
ORDER
This matter comes before the court on the Defendant's Motion
for
Consideration
and
Reduction
of
Sentence
Section 404 of the First Step Act of 2018
Pursuant
("Motion"),
to
filed on
January 13, 2020. ECF No. 398. The Defendant argues that this court
should reduce his sentence based on the recent passage of the First
Step
Act
of
2018,
Pub.
L.
No.
115-391,
132 Stat. 5194.
The
Defendant also requests that this court appoint counsel to assist
him in this Motion.
There is no right to the appointment of counsel for a motion
to reduce a sentence. United States v. Legree, 205 F.3d 724, 729
(4th Cir.
exceptional
2000).
Moreover,
circumstances
assistance of counsel.
in
the
Defendant
this
Accordingly,
case
has
not
that would
alleged any
require
the
the Defendant's request for
court-appointed counsel to assist him in his Motion is DENIED. If
d
future need
for
counsel does
counsel at that time.
arise,
the
court
will
appoint
i
Case 4:10-cr-00047-RBS-TEM Document 399 Filed 02/12/20 Page 2 of 3 PagelD# 2927
Upon consideration of the First Step Act of . 20.18, the Fair
Sentencing
Act
of
2010,
Guidelines,
the United States Attorney's office is DIRECTED to
and
the
United
States
Sentencing
respond to the Defendant's Motion within forty (40) days of the
entry of this Order, indicating whether it intends to oppose the
Defendant's Motion; if the United States does intend to oppose, it
shall include in the response the reasons for its opposition. If
the United States files a response in opposition to the motion,
any reply by the Defendant shall be filed within thirty (30) days
of said response.
The United States Probation Office is DIRECTED, within thirty
(30) days from the date of this order,
to file,
under seal,
a
Worksheet containing the Defendant's original statutory minimum
and maximum,
as
well
as
his
offense
level,
criminal
history-
category, and Guidelines range, as determined at sentencing. The
Worksheet shall also contain the Defendant's current, projected
release
date,
statutory
minimum
and
maximum,
offense
level,
criminal history category, and guidelines range, as calculated byconsidering the effect, if any, of the First Step Act of 2018 on
the Defendant's sentence. Once the Worksheet has been filed bv the
Probation Of flee, the Clerk is DIRECTED to forward a copy of the
Worksheet to the Defendant and to the United States Attorney.
2
Case 4:10-cr-00047-RBS-TEM Document 399 Filed 02/12/20 Page 3 of 3 PageiD# 2928
The Clerk is further DIRECTED to send a copy of this Order to
the Defendant/ the United States Attorney at Newport News, and the
United States Probation Office at Newport News.
IT IS SO ORDERED.
M
Rcbccca Beach Smith
Senior United States District Judge
REBECCA BEACH SMITH
SENIOR UNITED STATES DISTRICT JUDGE
February ^ , 2020
3
Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 1 of 7 PagelD# 3062
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Newport News Division
MAY -6 2020 '
CLERK,. US. DISTRICT COURT
,NORFOLK. VA
UNITED STATES OF AMERICA,
v.
CRIMINAL ACTION NO. 4:10cr47-l
PERRY COUSINS,
Defendant.
ORDER
This matter comes before the court on the Defendant's motion
i.or Consideration and Reduction of Sentence
Pursuant
to Section
•104 of the First Step Act of 2018 ("Motion"), filed on December 30
2019.
Act
EOF No. 398.
of
2018,
requests
Pub.
•r> he
Motion seeks relief under the First Step
L.
No.
appointment
of
115-391,
counsel
States responded on March 23,
132
and a
2020,
Stall.
5194
hearing.
Id.
(2018) ,
The
a no
United
and the Defendant rep-:eh
Ac il 20, 2020. ECF Nos. 408, 409.
I. History of the Case
On May 12,
One
t h r o u c i;
2011, a jury found the Defendant guilty or Count-
T hi r tee n,
Twenty-Nine or
the
Eighteen,
Superseding
seventeen counts of conviction,
Ilia se
offenses
v i o1a t ion
of
•were
18
Count
U.S.C.
Nineteen,
Indictment.
Twenty-Eight,
ECF Ko. 204.
hi
c. : :
the
the only counts involving cocaine
One,
Racketeering
Conspiracy,
in
Count
Const-'i ran. y
LC
§ 1962(d);
Two,
>
•Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 2 of 7 PagelD# 3063
Distribute and Possess with Intent to Distribute Cocaine Base,
Cocaine,
and
Marijuana,
in
violation
of
21
U.S.C.
§§ 846,
841(a) (1), 841(b) (1) (C), and 841(b) (1) (D); Count Eight, Possession
with Intent to Distribute 50 Grams or More of Cocaine Base,
in
violation of 21 U.S.C. §§ 841(a)(1) and (b) (1) (A) (iii); and Count
Eleven, Possession with Intent to Distribute 50 Grams or More of
Cocaine
Base,
in
violation
of
21
U.S.C.
§§ 841(a)(1)
and
(b)(1)(A)(iii). ECF No. 17.
The jury returned a Special Verdict Form.
ECF No. 204. As
stated on the Special Verdict Form, the jury found that the United
States had proved Racketeering Acts One through Five^ Eight
Fourteen
of
the
Superseding
Indictment.
and
Id. l*Reirevant-^h^?^
cc
Idw ECF
No. 17. The jury also noted on the Special Verdict Form its finding
that the amount of cocaine base that the Defendant possessed with
i
intent to distribute was "50 grams or more" for each of Counts
Eight and Eleven. ECF No. 204.
II. Eligibility for Relief
Under United States v. Wirsinq, a defendant is eligible for
relief under the First Step Act if he is serving a sentence for a
violation of 21 U.S.C. §§ 841(b) (1) (A) (iii) or (B) (iii) . 943 F.3d
175, 185 (4th Cir. 2019) . Because the Defendant was sentenced under
2
'Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 3 of 7 PagelD# 3064
21 U.S.C.
§ 841(b) (1) (A) {iii) on Counts Eight and Eleven, he is
eligible for relief based on those Counts. ECF No. 17. He is not
eligible for relief on Count Two, however, because he was sentenced
on that count under 21 U.S.C. §§ 841 (b) (1) (C) and (D) , not (A) (iii)
or (B) (iii) . See United States v. Duggan, 771 F. App’x 261, 261
(4th Cir.
2019)
(holding that the district court did not have
jurisdiction under the First Step Act to consider a motion to
reduce a sentence imposed under 21 U.S.C. § 841(b)(1)(C)).
Finally,
One,
the Defendant is not eligible for relief on Count
the racketeering conspiracy,
either.
The Defendant argues
that he is eligible for relief on this count because one of its
predicate racketeering acts, Racketeering Act Fourteen,
involved
a cocaine base offense. See Motion at 6 n.l. The Government* in
response, argues that a racketeering conspiracy is not a covered
offense
under
determined
by
the
First
18
Step Act,
U.S.C.
because
§ 1963(a),
the
not
penalties
21
are
U.S.C.
§§ 841 (b) (1) (A) (iii) or (B) (iii) .1 Response at 6-7.
^
But even
—the n^f&nHapt- wpre correct that^the First ^Step
Act allows the court to impose a reduced sentence on a racketeering
conspiracy charge on the basis of its predicate racketeering acts,
i
The penalties provided in § 1963(a) do sometimes change
based on the predicate racketeering acts. See 18 U»S.C. § 1963(a)
(providing a term of imprisonment of "not more than 20 years (or
for life if the violation is based on a racketeering activity for
which the maximum penalty includes life imprisonment)").
3
‘Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 4 of 7 PagelD# 3065
the Defendant still would not be eligible fo_r relief on Count One.
None of the racketeering acts that^
fondant was convirtrpii of
were a covered offense. The only racketeering act involving drugs
at
all
was
Racketeering Act
Fourteen/
which
incorporated
the
conduct described in Count Two of the Indictment and thus involved
offenses punishable under 21 U.S.C. §§ 841 (b) f1) (CL-and-JD) . ECF
As
sentence
App'x
discussed,
those
are
not
offenses
uction under the First Step Act
at 261.
Moreover/
the
maximum
eligible
fgs-^a;.
See Duggan/ 771 F.
penalty
for
the
offense
described in Racketeering Act Fourteen was 20 years, so the drug
conspiracy was not responsible for the enhanced penalty on Count
One.
See
18
U.S.C.
§ 1963(a)
(providing
a
maximum
term
of
imprisonment of 20 years for violations of 18 U.S.C. § 1962, "or
for life if the violation is based on a racketeering activity for
which the maximum penalty includes life imprisonment"); 21 U.S.C.
§§ 841(b) (1) (C),
(D)
20
years,
years
and
5
(providing maximum terms of imprisonment of
respectively) . ^axher^'^the^Defend'ahX^'sF
tbFotrfe
edicate
^?n^'udTngJmu^er^Sl^abtempte^'~lnuur9e^. ECF No. 204.
III. Merits
The jury found the Defendant guilty of possessing with intent
to distribute "50 grams or more" of cocaine base on each of Counts
4
‘Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 5 of 7 PagelD# 3066
Eight and Eleven. ECF No. 204. After the Fair Sentencing Act of
2010, Pub. L. No.
111-220,
124 Stat. 2372
(2010),
the statutory
maximum for 50 grams of cocaine base is 40 years.2 See 21 U.S.C.
§ 841(b) (1) (B) (iii); First Step Act § 404. The decision whether to
reduce a sentence, however, still remains in the discretion of the
district
court.
Wirsing,
943
F.3d
at 180.
in'
und—-i
pSTSKHantr11eligible for reTilTf~u ndef*~tK'e~~Fi rst StetTP^arT<3“ftavirTgy
j&Gt\srdered the^*jrf i^ril7gs7u 'the^De'f’eTidan't'"s_~pQstserTfenci~ng ~cohdudtffi
fthe^presentence report, "the advTsory~~Guide 1 ines
t'o rS^ifv^
>—‘U-t
Dxxon—wi tn^xespe;
..a ^T§Z3.553
ftg ^Cou n t s E lghVa n d^El’e
n^.a nd^REDUGES^his/
fsl5'ntence3a-on’;^Co'unTs^Ei,^ht^and-LEle'veh^fr5m—lTiTf'e^~ro'^four^hundre~d7
•^i*gh'tfy*e=‘C4'8O0—mo nth s. impr ison'meht^
In
all
other
respects,
the
Judgment entered on August 11, 2011, remains in full effect.3 ECF
No. 217.
♦
:
t : 2 See First Step Act Amendment Application Worksheet,
No. 401, attached hereto as Exhibit A under seal.
(
ECF
3 To the extent the Defendant is eligible for a sentence
reduction on the other counts of conviction, the court declines to
exercise its discretion to do so. As the record shows, the
Defendant's sentences on those counts were driven by the murder,
attempted murder, and other violent acts committed by the
Defendant. Moreover, the Defendant's convictions and sentences on
Counts Eight and Eleven had no effect on the Guidelines range or
statutory range on any other counts. See Presentence Investigation
Report ("PSR"), Worksheet B, ECF No. 212 at 65-66, refiled at ECF
No. 400.
5
•Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 6 of 7 PagelD# 3067
IV. Appointment of Counsel and Request for Hearing
In his Motion/
the Defendant also requests that the court
appoint counsel and hold a hearing.
There is no right to the
appointment of counsel for a motion to reduce a sentence. United
States v. Legree, 205 F.3d 724, 729 (4th Cir. 2000). Moreover, the
Defendant has not alleged any exceptional circumstances in this
*case that would require the assistance of counsel. Accordingly,
the Defendant's request for court appointed counsel to assist him
fin his Motion is DENIED. If a future need for counsel does arise,
•the court will
appoint
counsel
at
that
time.
The
Defendant's
^request for a hearing is also DENIED as a hearing is not necessary
^and would not aid the decisional process. E.D. Va. Crim. R. 47(J).
V. Conclusion
The Defendant's' Motion is GRANTED as to Counts Eight and
Eleven and DENIED as to all other counts. The Defendant's sentences
on Counts Eight and Eleven shall be REDUCED from Life to four
hundred eighty (480) months. In all other respects, the Judgment
entered on August 11, 2011, remains in full force and effect. The
Defendant's
requests
for
appointed counsel
and a
hearing
are
DENIED.
The Clerk
is
DIRECTED
to
forward a
copy of
this Order,
together with sealed Exhibit A, attached hereto, to the Defendant,
6
Case 4:10-cr-00047-RBS-TEM Document 411 Filed 05/06/20 Page 7 of 7 PagelD# 3068
the United States Attorney, the United States Probation Office,
and the Bureau of Prisons.
IT IS SO ORDERED.
M
m
Rebecca Beach Smith
Senior United States District Judge
REBECCA BEACH SMITH
SENIOR UNITED STATES DISTRICT JUDGE
May (p , 2020
7
Case 4:10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 1 of 6 PagelD# 3081
n
. >• /
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Newport News Division
UNITED STATES OF AMERICA,
v.
CRIMINAL ACTION NO. 4:10cr47-l
PERRY COUSINS,
Defendant.
MEMORANDUM ORDER
This matter comes before the court on the Defendant's Motion
for
Reconsideration
No. 412.
?May 6,
("Motion"),
filed
on
May 28,
2020.
ECF
The Motion asks the court to reconsider its Order of
2020,
which
granted
in
part
and
denied
in
part
the
Defendant's motion for a sentence reduction under the First Step
Act of 2018. See ECF Nos. 398, 411.
I.
On May 12, 2011, a jury found the Defendant guilty of Counts
One
through
Twenty-Nine
Thirteen,
of
the
Eighteen,
Nineteen,
Superseding
Indictment.
Twenty-Eight,
and
ECF
The
No. 204.
Defendant received a total sentence of imprisonment for a term of
Life,
plus
seven
consecutively.
hundred
ECF No. 217.
twenty
(720)
months,
On January 16,
2020,
to
be
served
the Defendant
filed a Motion for Reduction of Sentence under the First Step Act
of 2018. ECF No. 398. On May 6, 2020, the court entered an Order
Case 4;10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 2 of 6 Page ID# 3082
granting the motion as to Counts Eight and Eleven and denying the
motion as to the remaining counts. ECF No. 411. That Order reduced
the sentences on Counts Eight and Eleven from Life to four hundred
eighty (480) months. Id.
The
instant Motion
for Reconsideration asks
the court to
reconsider its. Order of May 6, 2020, and to reduce his sentence on
"the remaining counts that are related to the 'covered offenses. / n
Motion at 5.
Specifically,
the Defendant argues that the court
should reduce his sentences on Count One, Racketeering Conspiracy
in violation of 18 U.S.C. § 1962(d); Count Two, Drug Conspiracy,
in violation of 21 U.S.C. § 846; Count Three, Conspiracy to Commit
Hobbes Act Robbery, in violation of 18 U.S.C. § 1951(a); and Count
Nine,
Hobbs
Act
Robbery,
in violation of
18
U.S.C.
§1951(a),
because those counts are "threaded" to the covered offenses in
Counts
Eight
and
Eleven.
For
the
reasons
stated
below,
the
Defendant's arguments on each of these four counts fails.1
II.
:esp
BOl
n.e.A
>ef,en.da)
1 The Defendant's Motion initially asks the court to reduce
his sentence on the "remaining counts," but goes on to discuss
only Counts One, Two, Three, and Nine. Motion at 1. To the extent
the arguments in the Defendant's Motion apply to his other counts
of conviction besides Counts One, Two, Three, and Nine, the court
denies the Motion with respect to those counts, as well, for the
reasons discussed in this Order.
2
%
Case 4:10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 3 of 6 PagelD# 3083
^l3Tl-5t)^me-nt^regaraiess^f^gh^Fi_rAt_S^tepZ,AcT^nvrfe~sy^Unci'g,r,^l-,8^
/u.S.C. §~19'6T(aJ,;/ ajie fendant^sha
impri
" torJISTe^i~£ b)v£
/violation is~based on a~ racketeering activity^for which tile"fnax,imum>
^ypenalty ~ includes"
isonmeri
Id.
In
this
case,
Racketeering Activity Two-murder, in violation of Virginia Code
§ 18.2-322-involves an offense punishable by life imprisonment,
and thus mandates a sentence of life imprisonment on Count One. ^
^WniXe. trie "Defendant jls
coYreut" that
oj
7
^■nclugi-ng^Kaoceteefing^^cts^Four^^Tiyev^anH Fourteen;—invol-vef
^ocaine^gase "in some fprm/j_that_apg_s "not"
he—
CKeteermg Act Two lndepentienTly~"mdndat es, a sentenc
n
rMilie
^Gr-avat'C^igl F.3d
srevTew of a
RICO penaXty st:at:u1 t$^fKilled States v7^7
258,
g^detendant^s "sentence
o
2b4
n.5
Involves a
(4m~ ^Ci';c_20'2ff]---- rvEvgfir"7T"g7
covered
^istri^
s First step Actnnotion cannot avoi<y
ta,tu.to.r v. r e.qui-remen.ts.../)/1.
«
2 Virginia Code § 18.2-32 defines first degree murder, in
part, as "[mjurder, other than capital murder, ... by any
willful, deliberate, and premeditated killing" and provides that
first degree murder is punishable as a Class 2 felony. Under
Virginia Code § 18.2-10 (b), Class 2 felonies are punishable by
"imprisonment for life or for any term not less than 20
years . . . ." The jury in this case was instructed on the elements
for first degree murder under Virginia law in the instructions for
Racketeering Act Two, and specifically found that Racketeering Act
Two had been proved. See Transcript of Jury Trial Day Six at 91,
ECF No. 246; Special Verdict Form at 1, ECF No. 204.
3
idht
Case 4:10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 4 of 6 PagelD# 3084
The Defendant is not eligible for relief on Counts^Three and
4
^Nine, because the statutory penalties for those counts were no,t
^modified by the Fair Sentencing Act. Count Three is Conspiracy to
Commit Hobbs Act Robbery and Count Nine is a substantive count of
Hobbs Act Robbery, both in violation of 18 U.S.C. § 1951(a). ECF
No. 17 at 11,
15. The penalties in § 1951(a) were not themselves
modified by sections two and three of the Fair Sentencing Act,
^nd, unlike in Count One, the penalties for Counts Three and Nine
do not refer to or otherwise depend on predicate offenses that may
h“ave been modified by the Act. The Defendant argues that he is
nevertheless eligible for relief on Counts Three and Nine because
he committed those robberies in order to obtain the drugs referred
to in Counts Eight and Eleven, which are covered offenses. Motion
at 2.
However,
this analysis goes against the Fourth Circuit's
instruction to consider only the statute of conviction, not the
conduct
involved
in
a
defendant's
particular
violation,
when
determining eligibility for relief under the First Step Act. See
United States v.
Wirsinq,
943 F.3d 175,
185
(4th Cir.
2019).
Moreover, the Defendant's position with respect to Count Three is
contradicted by the Superseding Indictment, which states that the
Defendant
"unlawfully
agree[d]
to
take
and
obtain
personal
property including United States currency, controlled substances,
and
firearms .
.
//
ECF
No. 17
4
at 11.
As
the
Superseding
Case 4:10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 5 of 6 PagelD# 3085
Indictment makes clear, the object of the conspiracy in Count Three
was to obtain not just the cocaine base, but also money and guns.
III.
The
Defendant
is eligible
for
relief on Count Two,
Drug
Conspiracy, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
At the time of the court's May 6, 2020, Order, the Fourth Circuit
had concluded,
in an unpublished opinion,
that district courts
lacked jurisdiction to consider a First Step Act motion to reduce
a sentence
imposed under 21 U.S.C.
§ 841(b) (1) (C).
See United
States v. Duggan, 771 F. App'x 261 (4th Cir. 2019). Subsequently,
however,
that
the Fourth Circuit issued a published opinion holding
sentences
imposed
linder
21
U.S.C.
§ 841(b)(1)(C)
were
eligible for reductions under the First Step Act. See United States
v. Woodson,
2020)
F.3d —, 2020 WL 3443925 at *3 (4th Cir. June 24,
Irg^i^end^^SiigiBierf^IiaA^j-under. Woodson^
r*?i
ourt exe
At
sentencing,
the
Defendant's
conviction on Count Two was grouped with the convictions on Counts
Eight and Eleven.
See Presentence Investigation Report
("PSR")
at 51, ECF No. 212.
In the May 6, 2020, Order, the court reduced the sentences on
Counts Eight and Eleven from Life to four hundred eighty
months,
the
maximum
penalty
under
5
the
Defendant's
(480)
amended
Case 4:10-cr-00047-RBS-TEM Document 415 Filed 07/10/20 Page 6 of 6 PagelD# 3086
statutory range. ECF No. 411 at 6. Thus,.,, the Defendant's sentence
of two hundred forty
maximum
under
21
(240)
U.S.C.
months on Count Two
§ 841 (b) (1) (C) ,
is
in
the statutory
line
with
his
sentences on the other drug counts in its group, which were at the
maximum
of
their
respective
statutory
ranges.
Moreover,
his
sentence on Count Two is not above the amended Guidelines range,
which would call for a total sentence of life imprisonment plus
seven hundred twenty (720) months, restricted to two hundred forty
(240) months on Count Two. See PSR at 70; U.S.S.G. § 5G1.2 cmt.
n.3.
SL>4***;
la
u&her.e fore^
5SS
IV.
i
The Defendant's Motion is*DENIED. The Clerk is DIRECTED to
forward a copy of this Memorandum Order to the Defendant,
United States Attorney at Norfolk,
the
the United States Probation
Office, and the Bureau of Prisons.
IT IS SO ORDERED.
1st
-m
Rebecca Beach Smith
________Senior United States District Judge_______
■ REBECCA BEACH SMITH
SENIOR UNITED STATES DISTRICT JUDGE
July jp, 2020
6
-L
FILED: October 19, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
(4:10-cr-00047-RBS-TEM-l)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PERRY COUSINS, a/k/a Pzo
Defendant - Appellant
ORDER
The court denies the petition for rehearing and rehearing en banc. No judge
requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.
Entered at the direction of the panel: Judge Motz, Judge Floyd, and Judge
Harris.
For the Court
Is/ Patricia S. Connor. Clerk
FILED: October 4, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
(4:10-cr-00047-RBS-TEM-l)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PERRY COUSINS, a/k/a Pzo
Defendant - Appellant
ORDER
This court's mandate issued 10/04/2021, is recalled for the limited purpose
of considering a timely petition for panel and/or en banc rehearing.
For the Court—By Direction
/s/ Patricia S. Connor, Clerk
*v
Case 4:10-cr-00047-RBS-TEM Document 204 Filed 05/12/11 Page 1 of 5 PagelD# 773
h
H
{
_____
t
-w/
RUED
IN OPEN COUHT
MAY 1 2 2011
IN THE UNITED STATES DISTRICT COURT
CLERK, U.S. DISTRICT COURT
NORFOLK. VA
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
UNITED STATES OF AMERICA,
v.
PERRY COUSINS,
A/K/A “PZO”
CRIMINAL NO. 4:10CR47
SPECIAL VERDICT FORM
We, the jury, find the Defendant, PERRY COUSINS:
COUNT 1:
With Respect to Count 1, Racketeering Conspiracy.
CGuiltv
\/^
■ ,Not Guilty^_____
If your answer to Count 1 is “Guilty,” you must answer the following.
Which, if any, of the following acts did defendant PERRY COUSINS agree would be
committed by him or another conspirator:
Racketeering Act One
ar~AtTempted~hiurder,ofAntonio Lewis
Proved
-NotProvecF^3
Racketeering Act Two
VaTMurder ofRashedCaudle-
—^TPro ved
NofProved
Racketeering Act Three
^a?-Attempted’Hobbs-ActTobbery
^-OfT.C;
Proved ■—^—
NotPrpvgd
Racketeering Act Four
arHQbbs Act robbery of A. B.
—--'Proved^—
“'Not-Proved
Case 4:10-cr-00047-RBS-TEM Document 204 Filed 05/12/11 Page 2 of 5 PagelD# 774
«
Racketeering Act Five
^Hob^s ActTobbcry^of Loreiizo'fhomas -~^roved ~
--
NotProved^i
Racketeering Act Eight
(a^Robbeiy^of-RTD r
Proved—
•Not.Proved'i
Proved
NotProved-t
Racketeering Act Fourteen
f arConspiracyto distribute drugs
COUNT 2:
^^ith Respect to Count 2, Conspiracy to Distribute and Possess with Intent to
/Distribute Cocaine Base, Cocaine, and Marijuana
Guilty
COUNT 3:
With Respect to Count 3, Conspiracy to Obstruct, Delay and Affect Commerce by
Robbery.
Guilty
COUNT 4:
i/
Not Guilty
With Respect to Count 4, Murder in Aid of Racketeering Activity.
Guilty
COUNTS:
Not Guilty_________
\/*
Not Guilty_______
With Respect to^Count 5, Use of a Firearm Resulting in Death.
/
Guilty
V'
Not Guilty_____
With Respect to Count 6, Interference with Commerce by Robbery.
Guilty
/"CrOUNT7_r
With Respect to Count 7, Discharge of Firearm during a Crime of Violence.
Guilty
£
Not Guilty____ _
Not Guilty_____
NOTE: If your answer to Count 7 is “Not Guilty,” do not answer the following question; simply
proceed directly to Count 8. If your answer for Count 7 is “Guilty,” please answer the following
question for Count 7.
With respect to Count 7, mark all that apply in regard to the firearm.
During or in relation to the crime of violence the defendant:
Case 4:10-cr-00047-RBS-JEM Document 204 Filed 05/12/11 Page 3 of 5 PagelD# 775
C
Carried the firearm
/
Brandished the firearm
Discharged the firearm
COUNT 8:
With respect to Count 8, Possession with Intent to Distribute
Cocaine Base, commonly known as “crack” cocaine
Guilty
/
Not Guilty________
NOTE. If your answer to Count 8 is “Not Guilty," do not answer the following question; simply
proceed directly.to Count 9. If-your answer for Count 8 is “Guilty,” please answer the following
question for Count 8.
With Respect to Count 8, mark the total amount of cocaine base you find was
involved in the conspiracy to possess with intent to distribute or distribute.
50 grams or more
ok less than 50 grams but at least 5 grams
nit less than 5 grams
(|0PNj3g
With respect to Count 9, Interference with Commerce by Robbery.
Guilty
Not Guilty
COUNTTlfiJ With Respect to Count 10, Use, Carry, and Brandish of Firearm
during a Crime of Violence.
Guilty
Not Guilty
NO IE: If your answer to Count 10 is “Not Guilty,” do not answer the following question; simply
proceed directly to Count 11. If your answer for Count 10 is “Guilty,” please answer the
following question for Count 10.
With respect to Count 10, mark all that apply in regard to the firearm.
During or in relation to the crime of violence the defendant;
Carried the firearm
Brandished the firearm
Case 4:10-cr-00047-RBS^TEM Document 204 Filed 05/12/11 Page 4 of 5 PagelD# 776
V|'W'
COUNT 11: With respect to Count 11, Possession with Intent to Distribute
Cocaine Base, commonly known as "crack” cocaine
Guilty
Not Guilty_________
NOTE. If your answer to Count 11 is “Not Guilty,” do not answer the following question: simply
proceed directly to Count 12. If your answer for Count 11 is “Guilty,” please answer the
following question for Count 11.
With Respect to Count 11, mark the total amount of cocaine base you find was
involved in the conspiracy to possess with intent to distribute or distribute.
x,
5 0 grams or more
»k less than 50 grams but at least 5 grams
4
less than 5 grams
COUNT 12: With respect to Count 12, Interference with Commerce by Robbery.
Guilty
Not Guilty
< COUNT 13: With Respect to Count 13, Use of a Firearm Resulting in Death.
Guilty
i/"
Not Guilty_____
COUNT 18: With Respect to Count 18, Assault Resulting in Serious Bodily Injury in Aid of
; Racketeering.
Guilty
Not Guilty_____
COUNT 19: With Respect to Count 19, Use, Carry and Brandish of Firearm
during a Crime of Violence.
Guilty
Not Guilty
NOTE: If your answer to Count 19 is “Not Guilty,” do not answer the following question; simply
proceed directly to Count 28. If your answer for Count 19 is “Guilty,” please answer the
following question for Count 19.
With respect to Count 19, mark all that apply in regard to the firearm.
During or in relation to the crime of violence the defendant:
Carried the firearm
. ^ Case 4:10-cr-00047-RBS^TEM Document 204 Filed 05/12/11 sPage 5 of 5 PagelD# 777
>w
*eal «a Cteto OSm.
/
O
Brandished the firearm
Discharged the firearm
COUNT 28: With Respect to Count 28, Possession of an Unregistered Firearm.
Guilty
Not Guilty
COUNT 29: With Respect to Count 29, Felon in Possession of a Firearm.
Guilty
Not Guilty
UNITED STATES v. PERRY COUSINS
Criminal No. 4:10CR47
£>??-/£-£)ft//
Date
REDACTED COPY
Foreperson’s Signature
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 1 of 14 PagelD# 3021
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA ,■
Newport News Division
UNITED STATES OF AMERICA,
v.
PERRY COUSINS,
Defendant.
)
)
)
)
)
)
)
)
Case No. 4:10cr47
\
UNITED STATES’ RESPONSE IN OPPOSITION TO THE DEFENDANT’S MOTION
TO REDUCE SENTENCE PURSUANT TO THE ETRST STEP ACT OF 2Q18
The United States of America, by and through the undersigned Assistant United States
Attorney, responds to defendant Perry Cousins’ motion as to whether he is eligible for a reduction
in his sentence via Section 404 of the First Step Act of 2018, Pub. L. No. 115-391,132 Stat. 5194,
5222 (2018). ECF 395. That section makes the provisions of the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372 (2010), retroactively applicable to certain offenses
involving the trafficking of crack cocaine. As explained below, Cousins’ motion should be denied
because, among other reasons, he is serving multiple concurrent life^sentences for ^non-crackrelated offenses and lowering the statutory penalties for his two “covered offenses” does not alter
his sentence.1
Cousins was a prominent member ofthe "Dump Squad," a criminal enterprise that operated
in Newport News, Virginia. In June 2010, a federal grand jury returned a superseding indictment
charging Cousins and others in multiple counts addressing a wide scope of racketeering activity,
l
Two of these offenses were for VICAR murders committed during the course of the conspiracy
for which Congress determined the statutory penalty for such crime was mandatory life
imprisonment.
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 2 of 14 PagelD# 3022
violent acts and drug trafficking committed by the enterprise over the course of ten years. ECF
17.
After a seven-day jury trial in May 2011, Cousins was convicted of 17 counts, four of
winch are germane to the instant motion: one count of racketeering conspiracy charged under 18
U.S.C. § 1962(d) (Count 1), one count of conspiring to traffic marijuana, cocaine and cocaine base
in violation of21 U.S.C. § 846 (Count 2) and two counts of possession with intent to distribute 50
grams or more of cocaine base charged under 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii) (Counts 8
and 11). See ECF 204 (Special Verdict Form). Cousins was sentenced by this Court to concurrent
multiple life terms on Counts 1, 8 and 11. He received a 240-month concurrent term of
imprisonment on Count 2 (drug conspiracy).2
The United-States Probation Office's (USPOl worksheet concludes that Counts 8 and 11.
both crack cocaine counts, are "covered offengesJ* ECF No. 401. As to the remaining counts—1
thru 7, 9-10, 13, 19, 28-29—the USPO concludes that no sentence reduction is authorized under
FSA 2018, and that regardless of whether the Court affords the defendant relief on Counts 8 and
2 As noted, the other 13 counts of conviction are not germane to the instant motion. Count 3 was
a conspiracy to interfere with commerce by robbery count charged under 18 U.S.C. § 1951(a) for
which he was sentenced to 20 years; Count 4 was a murder in aid of racketeering count charged
under 18 U.S.C. § 1959(a)(1) for which he was sentenced to life; Counts 5 and 13 were use of
firearm resulting in death counts charged under 18 U.S.C. §§ 924(c) and (j) for which he was
sentenced on each to life; Counts 6, 9 and 12 were interference with commerce by robbery counts
charged under 18 U.S.C. § 1951(a) for which he was sentenced on each to 240 months; Count 18
was an assault resulting in serious bodily injury in aid of racketeering count charged under 18
U.S.C. §§ 1959(a)(3) and 2 for which he was sentenced to 240 months; Count 28 was a possession
of an unregistered firearm count charged under 26 U.S.C. §§ 5841, 5845(a) and (d), and 5871 for
which he was sentenced to 120 months; Count 29 was a felon in possessionof a firearm count that
was charged under 18 U.S.C. § 922(g)(1) for which he was sentenced to 120 months. These
sentences were ordered to run concurrent with the sentences imposed on Counts 1, 2, 8 and 11.
Counts 7, 10 and 19 were use, carry and brandish firearm during a crime of violence counts that
were charged under 18U.S.C. § 924(c)(1)(A) for which he was sentenced to 120 months on Count
7, and 300 months each on Counts 10 and 19, all to be served consecutively to each other and to
all other counts, for an aggregate sentence of life plus 720 months. ECF 217.
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 3 of 14 PagelD# 3023
11, defendant s life sentences on his non-crack related offenses will remain undisturbed. Id. at p.
2.
In his motion, defendant appears to argue that Counts 8 and 11 involve crack cocaine and
carried a statutory maximum of life, and served to increase the statutory range of the RICO count
(Count 1) from 20 years to life. Def. Mot., p. 2. As explained below, defendant's life sentence
on Count 1 was increased to life due to the violent racketeering acts for which the jury found him
guilty, i.e., murder of one individual and the violent robbery of another . The only substantive
drug_autntcharged under the RICO conspiracy was the drug conspiracy charged in Count 2 /see
Racketeering Act 14), which only charged a violation for which the statutory maximum was 20
-
■
—
_
—
years. Furthennorgjgased on a plain reading of the applicable statutes, neither defendant's RICO
or drug conspiracy conviction are "covered offenses” under the First Step Act becausethev are
not among the exclusive "Federal criminal statute [s], the penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act." See Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5222. Notably, Sections 2 and 3 of the Fair Sentencing Act only amended certain provisions in
21 U.S.C. §§ 841, 844, 960, whereas 18 U.S.C. § 1962 (the "RICO” statute), and 21 U.S.C.
841(b)(1)(C) are not listed. See Pub. Law 111-220, §§ 2-3; 124 Stat. 2372,2372; see also United
States v. Davis, No. 07-CR-245S, 2019 WL 1054554, at *3, 2019 U.S. Dist. LEXIS 36348, at *6
(W.D.N.Y. Mar. 6 2019)( Underjhe plainlanguage of [this section], whether anjdfense is a_
"covered offense” isdetennined by examining the statute that the defendant violated."), appeal
docketed, No. 19-874 (2d Cir. Apr. 5, 2019). ■
Count One - Racketeering Conspiracy
In Count 1, Cousins was charged with conspiracy to commit at least two acts of
racketeering in violation of 18 U.S.C. § 1962(d). ECFNo. 17; see also 18 U.S.C. §§ 1961(1), (5).
Case 4:10-cr-00047-RBS~TEM Document 408 Filed 03/23/20 Page 4 of 14 PageiD# 3024
Count 1, paragraph 8 sets forth 14 discrete racketeering acts arising under §§ 1961 (1) and (5),
with each act applicable to one or more defendants. These acts encompassed felony murder and
attempted murder, conspiracy to commit murder; Hobbs Act robberies and attempted robberies,
arson, and conspiracy to distribute marijuana, powder cocaine and cocaine base. ECF 17 at pp. 610. Cousins was specifically found by the jury to have committed seven predicate acts:
1) Racketeering Act One: the felony attempted murder of Antonio Lewis on or about February
18, 2003, in violation of Va. Code Ann. §§ 18.2-32 and 18.2-26; 2) Racketeering Act Two: the
felony murder of Rashed Caudle on or about August 9, 2003, in violation of Va. Code Ann §§
18.2-32 and 18.2-26; 3) Racketeering Act Three: as charged in Count 6, the attempted Hobbs Act
Robbery of T.C. on or about June 11, 2005, in violation of 18 U.S.C. § 1951(a) and 2; 4)
Racketeering Act Four: as charged in Count 9, the Hobbs Act Robbery of A.B. in July 2005, in
violation of 18 U.S.C. § 1951(a); 5) Racketeering Act Five: as charged in Count 12, the Hobbs
Act Robbery of Lorenzo Thomas on or about September 12, 2005, in violation of 18 U.S.C. §
1951(a) and 2; 6) Racketeering Act Eight the robbery and assault of R.D. on or about in or about
November 2007, in violation of Va. Code Ann.
18.2-58 and 18.2-18;jmd 1) Racketeering Act
Fourteen: as charged in Count 2, conspiring from in or about 2001 and continuing thereafter to
and including May 2010 to traffic marijuana, powder and crack, in violation of 21 U.S.C. §§ 841
and 846. See ECF No. 204.
The criminal penalties applicable to the racketeering offenses for which Cousins was
convicted on Count 1 are found in 18 U.S.C. § 1963(a): “Whoever violates any provision of
section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or
for life if the violation is based on a racketeering activity for which the maximum penalty includes
life imprisonment), or both. . . ” Id. (emphasis added). Because at least one of Cousin’s
Case 4:10-cr~00047-RBS~TEM Document 408 Filed 03/23/20 Page 5 of 14 PagelD# 3025
racketeering activities’ triggered a statutory maximum sentence of life, his statutory sentencing
range as to Count 1 was life. See PSR at p. 3, | 1 and p. 34 at f 108. As explained below, as to
the racketeering count, § 404 of the First Step Act has not brought about any change to that
statutory framework today. In other words, today, at least one predicate act continues to trigger a
potential life sentence. That was, and remains today, all that is necessary to maintain the zero
years to life statutory sentencing framework applicable to Count 1.
A.
The statutory penalties for Virginia felony murder and robbery include a potential
sentence of life in prison.
Regardless of any drug trafficking offense addressed within Count 1, Racketeering Act
Two, described that on or about August 9, 2003, Perry Cousins did murder Rashed Caudle in
violation of Va. Code Ann. § 18.2-32. ECF 17,
8. Racketeering Act Eight described that in
November 2007, Perry Cousins and a co-conspirator, did commit robbery by an act of violence,
and by putting a person in fear of seriously bodily harm, and by the threat or presenting of a firearm,
and did take jewelry items from the person and presence of R.D., in violation of Va. Code Ann.
§§ 18.2-58 and 18.2-18. These acts were incorporated in Count 1, which charged Cousins and
others with conspiring to engage in a “pattern of racketeering activity” consisting of two or more
of the 14 racketeering acts as set out in paragraph 8 of the indictment. ECF 17,p. 6. “Racketeering
activity” means “any act or threat involving murder,... .robbery,....” which is “chargeable under
State law and punishable by imprisonment for more than one year....” 18 U.S.C. § 1961(1).
When this Court rendered its initial judgment in this action in 2011, and today, felony
murder and robbery in Virginia has continued to trigger a potential sentence of life in prison. Va.
Code Ann. § 18.2-32 defines murder in pertinent part as
.. other than capital murder, by poison,
lying in wait, imprisonment, starving, or by any willful, deliberate, premeditated killing ... except
as provided in § 18.2-31, is murder of the first degree punishable as a Class 2 felony.” A Class 2
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 6 of 14 PagelD# 3026
felony in Virginia carries a 20-year minimum term of imprisonment and a maximum of life.' Va.
Code Ann. § 18.2-10. Robbery, as defined in pertinent part at Va. Code Ann. § 18.2-58, “If any
person. . . by assault or otherwise putting a person in fear of serious bodily harm or by threat or
presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of
felony and shall be punished by confinement in a state prison facility for life or any term not less
than five years.”; compare 18 U.S.C. § 1963(a) (the defendant may be imprisoned “for life if the
violation is based on a racketeering activity for which the maximum penalty includes life
imprisonment....”
Therefore, notwithstanding any drug trafficking allegations contained within the ambit of
Cousins' racketeering conspiracy in Count 1, or any debate about the relative merits of the
‘indictment controls’ and “offense controls” theories of drug trafficking-related First Step Act
relief, as a matter of law the statutory framework for that count included and continues to
include, zero years to life in prison. For this threshold, and independent reason, Cousins is
ineligible for any reduction below his life sentence as to Count 1.
B.
Disregarding the independent implications of the predicate acts of felony murder
and robbery, the First Step Act did not change the statutory penalties for the drug
trafficking offense contained within Counts 1 and 2.
Again, Count 1 charged racketeering offenses under the statutory scheme set forth in 18
U.S.C. § 1962. ECF 17. The conspiracy charge in Count 1 alleged that Cousins committed two
or more of the predicate acts described in Paragraph 8 of the indictment. Id. at pp. 6-10. Those
acts included Racketeering Act Fourteen, which charged Cousins and others with conspiring to
distribute marijuana, powder and crack cocaine from in or about 2001 up to and including May
2010 in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C) and (D). Id. at | 8; pp. 10-11. Count
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 7 of 14 PagelD# 3027
2} as a substantive drug conspiracy count, specifically charged Racketeering Act Fourteen. Id. at :
p. 10.
Further, as explained below, notwithstanding the actual quantities of crack cocaine for
which Cousins was deemed responsible, the new Act did not alter the statutory penalty for the
crack-related offenses described in Act Fourteen or Count 2. That statutory penalty range was and
s
--------------- -—------------------- —
remains zero to 20 years for a violation of 2 U.S.C. § 841(b)(1)(C) and his sentence on Count 2
reflectsjthat he was sentenced under that statutory range. And per § 1963(a), the statutory
maximum sentence for Count 1 remains life in prison based on his most serious underlying
criminal activity—the felony murder and robbery. As such, the revised penalty provisions for
cocaine base trafficking offenses made retroactive by § 404 of the First Step Act have no effect on
the statutory sentencing framework as to Counts 1 or 2. For this independent reason alone as well,
^
Cousins is ineligible for relief.
Furthermore, defendant’s life sentence was not driven by the quantity of drugs that
defendant and his enterprise were responsible for putting onto the streets of Newport News. The
PSR determined that his guideline sentencing range was also life imprisonment based on his most
*
*
serious underlying criminal activity—first degree murder. Guidelines § 2A1.1 establishes a base
offense level of 43 for first degree murder. Cousins’ RICO count was grouped together with
■Counts 3, 12 and 13 and scored under § 2A1.1, resulting in a base offense level of 43. See PSR
Worksheets A, Count lg, Count 3, Counts 12 and 13. With victim-related adjustments under
Guidelines § 3A1.1, Cousins’ adjusted offense level was 45. He received an additional 3-level
increase in his. offense level based on total units for a combined adjusted offense level of 48.
Defendant scored the highest criminal history score of VI, resulting in a sentencing guidelines
range of Life (plus 720 months consecutive for the firearms charges). In the complex calculus of
*
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 8 of 14 PagelD# 3028
Cousins' sentencing guidelines range in 2011, it was the felony murders of Rashed Caudle and the
robbery/murder of Lorenzo Thomas that ultimately drove that calculus, and yet today, he remains
subject to an offense level of 48, a criminal history category of VI and "range" of life in prison.
ECF401 (PSR Worksheet).
And, this Court clearly tied the imposition of Cousins' life sentence to the violence that
defendant inflicted on the community, including murder and other violent crimes:
But obviously the nature and circumstances of these offenses -1 agree with what
one of the victims said, and which has been evident throughout this case, that you
basically terrorized the City of Newport News. Your actions put a community in
fear, and you terrorized and you murdered and you wielded guns, you distributed
So I can’t think of a case — I’ve tried to bring one to mind — that had more
devastating and horrible occurrences all in one case than perhaps your case. I
don't know that I have had a similar case in my career, with this many murders
and this many crimes all in one case, and over what is relatively a short period of
time to have wreaked this kind of havoc and terror on a community.
11/18/2011 Sentencing Tr. at pp. 15-16.
Because the penalty range for Cousins’ RICO and drug conspiracy offenses were not
modified by the 2010 Fair Sentencing Act, he is not eligible for a sentence reduction on either
count. Even assuming defendant was eligible for a reduction on these counts, which he is not, he
is serving concurrent mandatory life sentences for the two VICAR murders he committed during
the course of the conspiracy (Counts 4 and 13) and any such reduction on these counts would not
provide defendant the relief he seeks.
Turning now to defendant’s “covered offenses” (Counts 8 and 11), the Fourth Circuit in
United States v. Wirsing, held that “[ajll defendants who are serving sentences for violations of 21
U.S.C. § 841(b)(l)(A)(iii) and (B)(iii), and who are not excluded pursuant to the expressed
limitations in Section 404(c) of the First Step Act, are eligible to move for relief under that Act.”
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 9 of 14 PagelD# 3029
943 F.3d 175, 186 (4th Cir. 2019). Therefore, the binding precedent in this Circuit is that “the
drug quantity charged in the indictment. . . controls whether the defendant is eligible for relief
under the Act.” United States v. Laurey, 791 F. App’x 421, 421 (4th Cir. 2020) (citing Wirsing,
943 F.3d at 185-86).
Tke government’s position remains that the drugquantitv to be considered is that which
is^found attributable to the defendant by the court, not merely what was charged in the indictment
The Eleventh Circuit has agreed with the government, reasoning that “the First Step Act modified
_only the relevant drug quantities for triggering the mandatory sentencing scheme in § 841, but did
not modify the process by which the district court imposes a sentence, including its ability to
determine the quantity of drugs attributable to a defendant for sentencing purposes.” United States
v. Means, 787 F. App’x 999 (11th Cir. 2019). Regardless of the metric used, the defendant k
eligible for the court to consider_^sentence reduction on Counts 8 and 11. The PST^attributed the
defendant with 255.15 grams of “crack” cocaine, which is below the new 280-prams fhrp^hnlH
required after the.,Fair iSfinlenomg Act of 2010. Similarly, he was not charged with 280 grams.
However, defendant has merely shown that he is eligible, which does not mean that he is
automatioalhLefltitled to a sentence reduction.
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This Court shouldin its discretion, deny a sentence reduction'J
Under § 404, this Court is not required to reduce the defendant’s sentence even if it
concludes that he was convicted of a covered offense. See United States v. Brown, 785 F. App’x
154 (4th Cir. 2019) (affirming discretionary denial of relief). Section 404(b) states that the court
that sentenced a defendant “may” impose a reduced sentence as if Sections 2 and 3 of the Fair
Sentencing Act had been in place. And §. 404(c) strongly reinforces;the breadth of this Court’s
decision. Section 404(c) provides, “Nothing in this section shall be construed to require a court to
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Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 10 of 14 PagelD# 3030
reduce any sentence pursuant to this section.” (emphasis added). “Congress left the decision as to
whether to grant a sentence reduction to the district court’s discretion.” United States v. Wirsing,
943 F.3d 175,180 (4th Cir. 2019).
This Court should, in its discretion, deny relief. Any reduction in his sentence on the
disputed counts (Counts 8 and 11) would essentially be moot, as defendant was sentenced to
concurrent life sentences on four other counts which are not "covered offenses" for purposes of
the First Step Act and lowering the statutory penalties on his crack counts would not alter his life
sentence on the other counts. ECF 400.
Furthermore, a reduction is not warranted. As the trial judge in this case, the Court is well
aware of defendant's extremely violent conduct, as extensively reviewed in the PSR. And since
being incarcerated, defendant has committed numerous, serious prison infractions. See attached
Disciplinary Record.
Defendant’s criminal history began at age 16, already included assault and battery and
possession of marijuana by 17, and escalated to possession of a stolen firearm at the age of 19.
PSR K 49, 50, 53, and 54. At the age of 20, he was convicted again of assault and battery. PSR
57. That offense was followed by, among other things, possession of marijuana, PSR ^ 59 and 64,
trespassing, PSR ][59, 60, 63, 65, and 66, and assault and battery on a law enforcement officer,
PSR^f 67.
The PSR also recounts defendant’s extremely violent conduct during the course of the
RICO and drug conspiracy for which he now seeks a discretionary sentence reduction. During the
course ofthe conspiracy, defendant was directly responsible for two murders, numerous shootings,
assaults and armed robberies. On August 9,2003, defendant executed Rashed Caudle by shooting
him nine times while Caudle sat in the passenger seat of a vehicle. “When officers arrived on the
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 11 of 14 PagelD# 3031
scene, [Caudle] was deceased, ‘hanging halfway out the open driver’s side door.” PSR ^ 24.
Cousins told a co-conspirator that he killed Caudle "due to an ongoing argument" and "bragged
about not being convicted in state court of the murder.” PSR 124.
On September 12, 2005, defendant and a co-conspirator entered the residence of Lorenzo
Thomas with the intention of robbing him for “crack” cocaine and money. Thomas and his cousin
Stacy Wise were inside the apartment at the time. Cousins and his co-conspirator forced Wise and
Thomas to the floor, and “put a pillow over [Wise’s] head.” PSR
30. After an unsuccessful
search, “Cousins continued to demand the drugs and money from [Thomas]. Cousins killed
[Thomas] by shooting [him] once in the chest and once in the back.” Id.
Defendant also used violence to rob his rivals ofbothmoney and drugs. On June 11, 2005,
defendant attempted to rob a co-conspirator for marijuana. PSR Tf 26. “Cousins pulled out a 9mm
firearm, pointed it at co-conspirator #2 and told [him], “Give it up.” Id. Co-conspirator #2 fled,
and Cousins shot him once in the left shoulder and once in the left arm. Id. In July 2005, “Cousins
contacted co-conspirator #3 ... to purchase ... “crack” cocaine.” PSR f 28. When co-conspirator
#3 arrived, Cousins approached [him] and pulled out a sawed-off shotgun. Cousins pointed the
shotgun at [him] and told him to, “Give it up.” Id.
On another occasion, defendant used a firearm to beat Robert Davis in retaliation for an
earlier gang-related incident. In November 2007, Davis pulled out a handgun and intervened im a
fight that had broken out in a convenience store owned by members of the defendant’s gang. The
next day, Davis returned to apologize.
“As [Davis] exited the store, Rice, [a member of
defendant’s gang], grabbed [Davis] and held him while Cousins beat [Davis] with a Caltech 9
firearm eight or nine times in the face.” PSR ^ 35.
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 12 of 14 PagelD# 3032
In the time since his sentencing-before this Court* defendant has had multiple prison-1
infractions, as the attachment to this response shows. On October 4, 2017, defendant “attempted
to assault a staff member by attempting [to] headbutt him . . . ” On the same day, he assaulted
medical staff while the staff was attempting to perform a medical assessment. He also was found
in possession of a “dangerous weapon” on two separate occasions. Defendant’s behavior has only
showed a continued pattern of violence. In August of 2016, he threatened bodily harm. In June
of 2012, he assaulted another inmate.
Defendant is not entitled to plenary resentencing.
In the instant motion, defendant argues the he is entitled to a full sentencing hearing on the
matter. “Nothing in the language of the First Step Act requires the court to have a hearing.” Wright
v. United States, 2019 WL 6039954 at *5 (E.D. Va. Nov. 14, 2019); see United States v. Wirsing,
943 F.3d 175, 183 (4th Cir. 2019) (“We hold that § 3582(c)(1)(B) is the appropriate vehicle for a
First Step Act motion.”). In the government’s view, a defendant is not eligible for a sentence
reductionwhere the record confrm^Jhat the quantity involved in the offens^satisfres the higher
thresholds oftheFair_Sentencing Act.- But, the Fourth Circuit rejected that view in United States
v. Wirsing, which is binding on this Court. United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019).
Nevertheless, even if this Court determines that Counts 8 and 11 are “covered offenses,”
the Court should decline to exercise its discretion to reduce the defendant’s sentence in light of the
defendant’s extremely violent conduct in this case and his poor conduct while incarcerated. The
above considerations belie any notion that Cousins is due any sentence reduction, even if he were
eligible for a reduction as to one or more counts of conviction. Any contrary result might offend
"the need to avoid unwarranted sentencing disparities among" similarly situated offenders under
18 U'S.C. § 3553(a)(6), and the need for a sentence to "reflect the seriousness of the offense,"
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 13 of 14 PagelD# 3033
promote respect for the law," and "provide just punishment for the offense" under §
3553(a)(2)(A). See Dorsey v. United States, 567 U.S. 260, 276-79 (2012) (expressing the
importance of consistency in sentencing similarly situated offenders when determining the
retroactive application of a statutory amendment.).
Conclusion
For the reasons previously stated, the United States respectfully requests this Court deny
the defendant’s motion for a sentence reduction under the First Step Act of 2018.
G. ZACHARY TERWILLIGER
UNITED STATES ATTORNEY
By:
Is/
Howard J. Zlotnick
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
Fountain Plaza Three, Suite 300
721 Lakefront Commons
O
Newport News, VA 23606
Telephone:, (757) 591-4000
Facsimile: (757) 591-0866
Email: howard.zlotnick@usdoi.gov
Case 4:10-cr-00047-RBS-TEM Document 408 Filed 03/23/20 Page 14 of 14 PagelD# 3034
CERTIFICATE OF SERVICE
I certify that on March 23, 2020,1 electronically filed a copy of the foregoing with the
Clerk of the Court using the CM/ECF system which will send a notification of such filing to all
counsel of record. I further certify that I caused a true and correct copy of the foregoing to be
mailed to the following non-ECF user:
Perry Cousins, Reg. No. 75726-083
United States Penitentiaxy - Pollock
P.O. Box 2099
Pollock, LA 71467
By: /§/
Howard J. Zlotnick
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
Fountain Plaza Three, Suite 300
721 Lakefront Commons
Newport News, Virginia 23606
Telephone: (757)591-4000
Facsimile: (757)591-0866
Email: howard.zIotnick@usdoi.gov
FILED: October 27, 2021
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7087
(4:10-cr-00047-RBS-TEM-1)
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PERRY COUSINS, a/k/a Pzo
Defendant - Appellant
j
MANDATE
The judgment of this court, entered September 10,2021, takes effect today.
This constitutes the formal mandate of this court issued pursuant to Rule
41(a) of the Federal Rules of Appellate Procedure.
/s/Patricia S. Connor, Clerk
A
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.