IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION UNITED STATES OF AMERICA ) ) ) -vs.- ) 0:14-CR-00806 ) July 21, 2015 DEMARIO ONTREY WARE, ) COLUMBIA, SC ) DEFENDANT. ) ) BEFORE THE HONORABLE CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE, PRESIDING SENTENCING A P P E A R A N C E S: For the Government: For the Defendant: STACEY DENISE HAYNES, AUSA UNITED STATES ATTORNEY'S OFFICE 1441 MAIN STREET, SUITE 500 COLUMBIA, SC 29201 JAMES P. ROGERS, APD FEDERAL PUBLIC DEFENDER'S OFFICE 1901 ASSEMBLY STREET COLUMBIA, SC 29201 Court Reporter: JENNIFER H. WILLIAMS, RPR UNITED STATES COURT REPORTER 901 RICHLAND STREET COLUMBIA, SC 29201 STENOTYPE/COMPUTER-AIDED TRANSCRIPTION *** *** *** ***

2 1 Tuesday, July 21, 2015 2 THE COURT: All right, Ms. Haynes. You may call 3 the first case. 4 MS. HAYNES: Yes, Your Honor. We're here in the 5 matter of United States of America vs. Demario Ware, criminal 6 case number 0:14-806. Mr. Ware is here for purposes of a 7 sentence hearing. The Government has read the Pre-Sentence 8 Report and we have no objections. I would note that defense 9 counsel does have an objection. 10 THE COURT: All right. Thank you. Good afternoon. 11 MR. ROGERS: Good afternoon, Your Honor. 12 THE COURT: All right. Mr. Rogers, have you and 13 Mr. Ware had an opportunity to read, review, and discuss the 14 Pre-Sentence Report and the I believe it's a revised addendum 15 since we were here before? 16 MR. ROGERS: Yes, Your Honor. 17 THE COURT: All right. And you still have 18 objections, I take it? 19 MR. ROGERS: That's correct. 20 THE COURT: Okay. I have received a couple of 21 things since we were last here. Let me go over what I have. 22 I have a sentencing memorandum that was filed by the defense. 23 This was filed at entry number 43 on the 15th of July. Then 24 I have a Government motion for upward variance and a 25 sentencing memorandum that was filed at entry number 45 on

3 1 the 20th of July. And then I think the only other new thing 2 that has been filed is the addendum, new addendum or the 3 revised addendum. It's the one that is dated May 19 of 2015 4 on page 2 of the addendum. That's the one that I'm referring 5 to. Is that the one that you are familiar with, Mr. Rogers? 6 MR. ROGERS: Yes, Your Honor. 7 THE COURT: Okay. Ms. Haynes, is that the one 8 you're working with? 9 MS. HAYNES: Yes, Your Honor. 10 THE COURT: Okay. All right. I also have a letter 11 from your client, but this I had before. It was a letter 12 from him asking that he wanted to be assigned to a location 13 as close as possible to his home. So I do have that, and we 14 will take that up once we've gotten through the sentencing. 15 I will recommend a close place for you. Okay. Mr. Ware, 16 have you had an opportunity to go over this Pre-Sentence 17 Report and the addendum to it and to discuss this matter 18 fully with Mr. Rogers? 19 DEFENDANT: Yes, ma'am. 20 THE COURT: Okay. And do you understand that he 21 has filed an objection to a particular part of your report 22 that is based on a prior conviction for discharging a firearm 23 into a dwelling? 24 DEFENDANT: Yes, ma'am. 25 THE COURT: Okay. All right. You may have a seat.

4 1 Thank you. All right. We put off the sentencing until after 2 the Court decided the Johnson case. Johnson was decided very 3 recently. And in that case the Supreme Court struck the 4 residual clause of the armed career criminal statute as 5 unconstitutionally vague. 6 This is a case that involves the residual clause of 7 the guideline. So the original or the recommendation, not 8 the recommendation but the addendum to the report, I guess we 9 have two issues: Is, one, where do we stand on the residual 10 clause of the guidelines; and, two, even if the residual 11 clause is out based on Johnson, then is this conviction, 12 should this conviction count as a crime of violence itself 13 under the force clause? Do you agree that those are 14 basically the two issues relating to counting this 15 conviction, Ms. Haynes? 16 MS. HAYNES: Yes. 17 THE COURT: Do you agree, Mr. Rogers? 18 MR. ROGERS: Yes, Your Honor. 19 THE COURT: Okay. All right. So as to the issue 20 of the residual clause under the guideline and the effect on 21 that clause of Johnson, in the Government's motion for upward 22 variance and sentencing memorandum, they state that 23 consultation with the Sentencing Commission reveals that it 24 is currently their position that the guideline definition of 25 crime of violence remains intact.

5 1 There have been at least eight cases remanded from 2 the United States Supreme Court guideline cases, remanded for 3 reconsideration by the Circuit since Johnson. So it's clear 4 to me that the Supreme Court is taking the position that 5 there is at least potentially an impact of their decision in 6 Johnson on these guideline residual clause cases. Does the 7 Justice Department have a position on that legal issue? 8 MS. HAYNES: The Justice Department does not have a 9 position yet on that. The guidance that we've been given is 10 to basically ask for a further delay until decisions are made 11 if this comes up or to note that there have been cases in 12 which vagueness challenges to the guidelines have not 13 survived, have not been granted. But there are other cases 14 in which they have. And some of those cases -- 15 THE COURT: After Johnson? 16 MS. HAYNES: No. No. That's what I was just going 17 to say, Your Honor. Those are older cases. So I don't know 18 if they would stand today or not on this issue. But there 19 are cases, because the guidelines are advisory now to the 20 courts. They don't deal with statutes. Like the Johnson 21 case deals with a statute which sets in stone the sentencing 22 range statutorily. The guidelines give a sentencing range 23 for the judge, but they don't adjust the statute max or 24 minimum. 25 So the vagueness change, the vagueness challenge

6 1 that was issued in Johnston, there is an argument to be made 2 that it would not apply to a guideline sentence. However, I 3 am fully cognizant that the guidance we will probably receive 4 later down the road is that they likely might apply. But we 5 haven't gotten that. 6 And the Commission, initially when I consulted with 7 them about guidance on Johnson, they advised that they were 8 not taking a position, they were not giving any guidance yet. 9 And then yesterday it's my understanding that Probation 10 contacted them. I gave them a contact information for Rusty 11 Burris who referred them to the counsel, chief counsel for 12 the Commission who advised that it's their position that 13 nothing has changed with regards to the guidelines. 14 That's their current position. I don't know what 15 tomorrow may hold. That's why I went ahead and filed a 16 motion for an upward variance, because ultimately I wanted to 17 make sure that Mr. Ware was still in the same range in which 18 we had thought he was going to be in when we initially looked 19 at this case, and which the State also based their plea 20 negotiations on in that he was probably going to get a range 21 of 4 years or a little over 4 years, a sentence somewhere in 22 that range. And that's why they pled him to a 12-year 23 sentence knowing, or in their thoughts believing, that the 24 federal sentence would be consecutive, ultimately resulting 25 in a 16-year sentence for him. I provided that email and

7 1 documentation to Mr. Rogers and Probation when it was 2 provided to me by the State. So that's one of the reasons 3 for my variance motion as well. But I got a little off track 4 with responding to Your Honor's question. 5 But I don't know where the law and where the 6 guidance is going to lead because every day is different. 7 Every time I walk into my office there is more guidance. But 8 we haven't gotten any further guidance as to how it applies 9 to the guidelines yet, Your Honor. 10 THE COURT: All right. How about the Public 11 Defender's Office, Mr. Rogers? What's your guidance as to 12 the issue of whether or not Johnson applies to strike the 13 residual clause of the guidelines on the same vagueness 14 grounds as Johnson found it struck the statute? 15 MR. ROGERS: I have not received any official word 16 from the office, Your Honor, but my position and logic 17 dictates that if the Supreme Court has struck that language 18 for void -- as unconstitutional, being void for vagueness and 19 it's the exact same language in the guidelines, then the same 20 rationale would apply and it would also apply to the 21 guideline residual clause. 22 THE COURT: All right. Is the Government asking 23 for a continuance, or do you want a ruling? In other words, 24 you're not taking a position, it seems to me. You're just 25 leaving it up to the Court then to decide the issue of

8 1 whether or not the application of the void for vagueness 2 doctrine in Johnson applies to the guidelines? 3 MS. HAYNES: I consulted with our appellate chief 4 as to whether I should ask for a continuance or not. He 5 indicated I might ought to just go forward since we had 6 already asked for one continuance until after Johnson was 7 resolved. Your Honor granted that. I don't want to just 8 keep kicking the can down the road, because things keep 9 changing daily. I would submit -- 10 THE COURT: Well, let me ask you this. If I find 11 that the guidelines residual clause is void for vagueness 12 based on Johnson, then the Government is not objecting to 13 that or does not intend to challenge that? 14 MS. HAYNES: I will object on the record. Whether 15 it will go up any further past this proceeding on an appeal 16 or not, it would be left up to our people in DC to decide 17 whether it would be something they wanted to appeal. 18 THE COURT: Okay. 19 MS. HAYNES: I don't get to make those decisions 20 unfortunately. Or maybe fortunately. But I would contend -- 21 THE COURT: Well, let me mention something. You 22 know, I suppose it could be to the defendant's disadvantage 23 then for me to rule if I ruled prematurely on that issue and 24 then you did get, someone in Justice says appeal that and 25 then you appeal that and, you know, that ruling is

9 1 overturned, maybe without a complete full record is what I'm 2 saying. So I want to make sure we don't just skip by this; 3 because, quite frankly, the issue on whether or not this 4 conviction counts or not is probably going to rise or fall on 5 the residual clause. 6 MS. HAYNES: So, Your Honor -- 7 THE COURT: In other words, you're probably going 8 to lose on the force clause. 9 MS. HAYNES: That's what I was going to ask. 10 THE COURT: All right. So if the residual clause 11 is still in play, if it were still in play, my ruling would 12 probably go one way. On whether or not this counts as a 13 crime of violence under the residual clause, I would probably 14 say yes if the residual clause had not been found to be 15 invalid. But if it's just -- if you have to make it or break 16 it on the force clause, then the weight of authority is 17 against you. But I am fine to go ahead and rule. I just 18 want both sides to realize where we are in this. 19 MS. HAYNES: Right. I think we're going to be at 20 the same place regardless of whether we -- 21 THE COURT: I think we are, too. 22 MS. HAYNES: -- go forward today or not. So we're 23 prepared -- 24 THE COURT: I can't imagine the Supreme Court would 25 be sending these cases back down if they didn't intend to

10 1 apply this to the residual clause. 2 MS. HAYNES: If I gave an answer based on the past, 3 it will end up where Your Honor thinks it's ending up I 4 think. But I have no guidance on that. 5 THE COURT: All right. Mr. Rogers, having heard 6 all this discussion, do you want me to go ahead on this? 7 MR. ROGERS: Yes, Your Honor. 8 MS. HAYNES: Should I -- Your Honor, I have copies 9 of the indictment. I'll be happy to make them as Exhibits to 10 the record if we -- 11 THE COURT: Let's do the residual clause first, and 12 then we'll come back to the force clause. Okay? All right. 13 So the first argument then is, as I understand it, the 14 Government is taking the position that the residual clause of 15 the guideline still is in play and that this conviction in 16 paragraph 29 is a crime of violence under the residual clause 17 of the guideline. Is that correct? 18 MS. HAYNES: That's correct, Your Honor. 19 THE COURT: And the defendant objects or takes the 20 opposite position, that the offense in paragraph 29 is not a 21 crime of violence under the residual clause because the 22 residual clause is unconstitutional as being void for 23 vagueness. 24 MR. ROGERS: That's correct. 25 THE COURT: Based on Johnson.

11 1 MR. ROGERS: Based on Johnson. Yes, Your Honor. 2 THE COURT: Okay. All right. All right. So on 3 that issue I am ruling for the defendant and I am finding 4 that the residual clause of the guidelines is void for 5 vagueness for the same reasons as set forth by the Supreme 6 Court in Johnson relating to 924(e). 7 The vagueness doctrine is not reserved for Sixth 8 Amendment challenges to criminal statutes. It has been 9 applied to many laws that fail to give notice of proscribed 10 conduct and enable arbitrary enforcement, such as regulations 11 and zoning ordnances. 12 So, in this case, the Supreme Court has, it seems 13 to me, expressly rejected in the case of Peugh vs. United 14 States an argument similar to what the Sentencing Commission 15 seems to be relying on now; that is, that Booker exempts the 16 guidelines from Constitutional scrutiny. In the Peugh case 17 at 133 S. Ct. 2072 in 2013 the ex post facto clause was held 18 to apply to the guidelines. 19 We are all familiar with the numerous cases. 20 Almost every case involving the armed career criminal statute 21 predicates and the guideline predicates, there is a footnote 22 saying that the law applies the same to each of these issues. 23 And so that's been the long bend of the law in this Circuit 24 and across the nation. So I find that the residual clause 25 does not apply to save this predicate offense.

12 1 That then takes us to the force clause issue. 2 Under the force clause, we have -- let me get to paragraph 3 29. The offense is discharging a firearm into a dwelling. 4 It is described in paragraph 29 of the Pre-Sentence Report. 5 The Probation Office has in their addendum taken the position 6 that this should be considered a crime of violence for 7 guideline sentencing purposes under the force clause. Let me 8 get the Government to put your position on that on the 9 record. 10 MS. HAYNES: We would contend, Your Honor, we're 11 talking about discharging a firearm into or at a dwelling. 12 And that's found at South Carolina Code Section 16-23-440, 13 specifically Subsection (a) which says it's unlawful for a 14 person to discharge or cause to be discharged unlawfully 15 firearms at or into a dwelling house, other buildings, 16 structure, or enclosure regularly occupied by persons. And 17 then it goes on to list what the penalty would be for that 18 violation. 19 The indictment in which Mr. Ware was charged and 20 entered a plea to was indictment number 2012-GS-46-4035 in 21 York County in which it was alleged that Defendant Demario 22 Ontrey Ware did in York County, South Carolina, on or about 23 May 7th, 2012, did willfully and unlawfully discharge a 24 firearm into the residence of one -- and it listed the lady's 25 name. Her initials are BD. Located at -- and it gave a

13 1 specific street address on Clarinda Street, Rock Hill, South 2 Carolina, in violation of that code section that I just read. 3 THE COURT: Well, there is no question that we're 4 talking about 440(a), correct? 5 MS. HAYNES: Yes, Your Honor. 6 THE COURT: A conviction under (a). 7 MS. HAYNES: Yes, Your Honor. 8 THE COURT: So why does the Government take the 9 position I should even look at the indictment other than to 10 determine which Code Section, (a) or (b), is -- actually that 11 would be on the sentencing sheet, that he pled to Section 12 (a). 13 MS. HAYNES: Well, it doesn't. The sentencing 14 sheet didn't list, nor the indictment, listed which 15 Subsection. It just listed the 440. 16 THE COURT: Okay. 17 MS. HAYNES: So that's why I read the body of the 18 indictment, to show there was no allegation that would fit 19 within (b). It was clearly within (a) because it listed the 20 female's name and the street address. I have a copy of that 21 indictment, front and back, along with a sentencing sheet. I 22 will tell Your Honor, the Court, that I have redacted out the 23 lady's name. I left her first initial and last initial. I 24 redacted out the street address but left the street name 25 Clarinda Street. And I also on the sentencing sheet redacted

14 1 out Mr. Ware's personal identifying information, his date of 2 birth, his social, and the first street address and apartment 3 number of his home address. I will just make those part of 4 the record. 5 THE COURT: All right. Mr. Rogers, with the 6 understanding that these are being offered solely to 7 determine that he pled to a 440(a) violation and for no other 8 reason, do you have any objection? 9 MR. ROGERS: Well, our position is, Your Honor, 10 that these are not relevant because we think under the 11 categorical approach you don't have to look at these charging 12 documents. 13 THE COURT: But I have to know whether he pled to 14 440(a) or (b). 15 MR. ROGERS: Very well. Then we don't have an 16 objection. If that's a question -- 17 THE COURT: I don't necessarily need any conduct -- 18 MR. ROGERS: Very well. 19 THE COURT: -- any information on any conduct. But 20 I just need to know what he pled to. 21 MR. ROGERS: If that's the purpose for which 22 they're introduced, I don't have a problem. 23 THE COURT: All right. We'll admit them for that 24 limited purpose. 25 MS. HAYNES: Can you just staple them together? I

15 1 just made them one Exhibit. 2 THE CLERK: All right. 3 MS. HAYNES: And that's a three-page exhibit we 4 labeled Government's Exhibit No. 1. And I have a copy of the 5 statute, but I don't think that needs to be made a part of 6 the record. 7 THE COURT: No, it doesn't. That's fine. We can 8 make that a Court Exhibit. 9 (WHEREUPON, Court's Exhibit No. 1 is marked and 10 made a part of the record.) 11 THE COURT: Okay. What's your best authority for 12 this being applied, the force clause applying to this? 13 MS. HAYNES: In that there has to -- there -- 14 THE COURT: Okay. Let me focus you. 15 MS. HAYNES: I know where I'm ending up. So I'm 16 wondering if I really need to -- 17 THE COURT: Regularly occupied. All right. That's 18 your problem. The statute says it's regularly occupied. So, 19 all the cases that we're looking at seem to require more than 20 just regularly occupied for this force clause to apply. 21 MS. HAYNES: I think that puts a tremendous burden 22 upon the Government to prove that the defendant knew someone 23 was in the house at the time. Or, I mean, they clearly were 24 making a distinction in this statute to show that it was an 25 occupied place, that it wasn't just some abandoned storage

16 1 building or decrepit, falling down barn in the country that 2 someone was shooting into, that they're shooting in a 3 building or structure in which people very well could be 4 inside; thus, raising the potential for harm to another 5 person. 6 Many times, such as in driveby shootings, the 7 defendant who is doing these acts is not going to know if 8 someone is in that house at that time or not. So they 9 couldn't use the language occupied dwelling because then it 10 would put upon the Government to prove the defendant knew 11 that it was occupied at the time. But it being regularly 12 occupied, that just puts him on notice that there are 13 generally going to be people in that facility or in that 14 building. 15 THE COURT: Well, now we're talking about another 16 Johnson case, the Johnson case in 2010, that for the force 17 clause requires more than perhaps people thought it 18 originally did. And under that decision, how does this 19 statute meet the requirements that the Supreme Court has set? 20 MS. HAYNES: It probably does not under that one. 21 THE COURT: Okay. 22 MS. HAYNES: Because I know the case Your Honor 23 found before found that discharging a firearm into a dwelling 24 was a crime of violence. But Your Honor found that under the 25 residual clause, which the Fourth Circuit upheld. But the

17 1 Fourth Circuit also noted that it was also akin to the 2 assault under the commentary in the guidelines, so that it 3 was akin to an aggravated assault. 4 THE COURT: Well, there are different purposes 5 here. The State statutes passed at a different time for a 6 different purpose, and then we have guidelines that are 7 drafted relating to counting certain convictions, and then we 8 have Supreme Court gloss on that. So it makes it all very 9 difficult to rationally say it's not violent. But that's not 10 the test. The test under Johnson requires more than just 11 intent. It requires that there be some actual physical 12 aggression to the person of someone. 13 MS. HAYNES: And, unfortunately, common sense no 14 longer applies. 15 THE COURT: Exactly. Exactly. 16 MR. ROGERS: That's the guidelines. 17 THE COURT: All right. Mr. Rogers, do you want to 18 say anything? 19 MR. ROGERS: No, Your Honor. 20 THE COURT: Okay. All right. The Court finds that 21 the force clause of the guidelines do not render this 22 conviction for discharging a firearm into a dwelling under 23 paragraph 29 a crime of violence. This is a conviction under 24 16-23-440(a), and it requires firing into a regularly 25 occupied structure. South Carolina courts have not

18 1 interpreted regularly occupied to mean actually occupied. So 2 a person could be convicted under 440(a) for firing into an 3 empty house. 4 We have looked at a number of cases from other 5 Circuits. There is this one case from the Fourth, but it's 6 unpublished, under the residual clause. But that does not 7 survive the other, the most recent Johnson case. 8 So, the one case that went somewhat close to this 9 was that Curtis case. But in Curtis, you have an automobile, 10 which has been interpreted to mean a much smaller area, much 11 less likely that there would not be a person aimed at in the 12 aggravated discharge of a firearm in the direction of another 13 person or an occupied vehicle. 14 So it appears to me based on the cases of United 15 States vs. Estrada, E-S-T-R-A-D-A, at 777 F.3d 1318, United 16 States vs. Estrella, E-S-T-R-E-L-L-A, at 758 F.3d 1239, 17 United States vs. Alfaro at 408 F.3d 204, United States vs. 18 Ford, 613 F.3d 1263, United States vs. Curtis, 645 F.3d 937, 19 and then there is a -- I believe that those are the main ones 20 that -- I don't really find anything that would support the 21 use of force clause for this particular offense. The King 22 case which Probation relies on I find is not on point. And 23 so I would not do that. 24 So for all of those reasons I will sustain the 25 defendant's objection on the force clause. That means that

19 1 the conviction in paragraph 29 will not be counted as a crime 2 of violence under the guidelines. 3 So, we would go into the -- here's what we're going 4 to do. I'm going to direct the Probation Office to show 5 these changes in the Statement of Reasons. And he would show 6 that in paragraph 29 on page 12 where it says the conviction 7 for discharging a firearm into a dwelling has been considered 8 to be for a crime of violence, he would show in the SOR that 9 your objection to that was sustained and, therefore, that 10 does not count as a crime of violence. 11 Then we would go over to our offense level 12 calculation. And paragraph 50 which is currently a 24 would 13 become a 20. Paragraph 56 which is -- no. 55, which is 14 currently a 24 would become a 20. And then paragraph 59 15 which is currently a 21 would become a 17. And then if 16 you'll go over to paragraph 77, it would read now based upon 17 a total offense level of 17 and a criminal history category 18 of IV, the guideline imprisonment range is 37 to 46 months. 19 So that would be the guideline in this case. 20 All right. So with those changes then, are there 21 any other objections to the Pre-Sentence Report? Mr. Rogers? 22 MR. ROGERS: No, Your Honor. 23 THE COURT: All right. Then the Court will adopt 24 the factual statements contained in the report as its 25 findings of fact as amended on the record. I've given you

20 1 the new guideline range. It would be a 17, criminal history 2 category IV, guideline range of 36 to 47 months. The 3 supervised release range is one to three years. The special 4 assessment fee is $100. Do you agree that the guidelines 5 have now been correctly calculated, Mr. Rogers? 6 MR. ROGERS: Your Honor, I believe you said 36 to 7 47. It's 37 to 46. 8 THE COURT: I am sorry. That's what I meant, 37 to 9 46. 10 MR. ROGERS: No objection. 11 THE COURT: Okay. And the Government has made 12 objections. So those are noted on the record. 13 All right. So now we go to the Government's motion 14 for an upward variance. As I understand it, what you're 15 saying, Ms. Haynes, is that you negotiated this case with the 16 thinking that he was going to be in a 57 to 71-month 17 consecutive situation, and you want me to put him back there 18 now that he's won his objection. 19 MS. HAYNES: In a sense. But also I wanted to take 20 into account the full range of his criminal conduct. I think 21 his criminal conduct in the short time period in which of all 22 of these things stack out as outlined in my sentencing 23 memorandum and in the motion show that he is a violent 24 individual predisposed to use firearms, possession of 25 firearms. And because of those reasons, I would be asking

21 1 for a higher sentence than the resulting 37 to 46 months. 2 Your Honor, as Your Honor is aware, he had a prior 3 armed bank robbery. When he first became an adult at age 18, 4 that was brought federally. He had some trouble as a 5 juvenile, nothing huge, no crimes of violence, but truancies 6 and a stolen motor vehicle and things of that nature. But as 7 an adult, he graduated quite quickly to the big leagues and 8 ended up doing an armed bank robbery with co-defendants in 9 which he was armed with a gun. 10 AUSA Jendron prosecuted that before Your Honor. 11 And I believe Mr. Ware entered a guilty plea and was 12 sentenced to 57 months with five years supervised release. 13 After he was released from the Bureau of Prisons, he 14 immediately thereafter tested positive. He was released on 15 the 8th of April, and then ten days later he tested positive 16 for marijuana. Your Honor or the Probation Office submitted 17 him to more random drug testing as a result and continued him 18 on supervision. 19 Then in that same year, in December, he tested 20 positive again for marijuana. At that time Your Honor 21 modified his supervised release and placed him on community 22 service. A matter of two months after that, in February of 23 2012, he was arrested again for simple possession of 24 marijuana and driving under suspension. He was convicted of 25 that in State court, municipal court. Later that month, in

22 1 June, Your Honor issued a warrant for a violation of his 2 supervised release based on the new arrest and based on his 3 not doing any of the community service ordered by Your Honor, 4 based on his failure to pay any restitution from the bank 5 robbery, his failure to report his new arrest, and his 6 failure to do his monthly reports. 7 After that, the very next month, he was arrested by 8 local authorities for this discharging a firearm into a 9 dwelling and the criminal conspiracy to do assault and 10 battery first degree. That was when he shot along with a 11 co-defendant into the residence of a female on Clarinda 12 Street. That was July 12th of 2012. 13 Later that same year, in December, his federal 14 supervised release was revoked by Your Honor for ten months. 15 He was sent back to the Bureau of Prisons. He was released 16 in November of 2013. And at that time he was in the Rock 17 Hill area. 18 Then the very next year, some six months later, in 19 May of 2014, he was arrested for this gun charge that led to 20 the current federal prosecution. He was found in possession 21 of a loaded.380 caliber handgun. Officers recognized him 22 outside a dwelling and knew that he had an outstanding 23 criminal domestic violence warrant for him. And when they 24 went to arrest him for that, they found him in possession of 25 this loaded firearm. That was in May of 2014.

23 1 He posted bond for that. And then in August of 2 2014, some three months later, he was arrested for two counts 3 of armed robbery with a deadly weapon, a burglary first 4 degree, unlawful carrying of a weapon, and simple possession 5 of marijuana. 6 The very next month he pled guilty to the simple 7 possession of marijuana. A couple of months later he was 8 indicted federally for our charge. He pled to our charge. 9 And then in April of -- well, it says 2014. I have a typo. 10 It should have been 2015. He pled guilty to the two counts 11 of armed robbery, the burglary first degree, and the 12 possession of a firearm in commission of a violent crime. 13 And that's one thing I would note in the 14 Pre-Sentence Report. I believe, and I noted in paragraph 1 15 of my sentencing memorandum, paragraph 31 of the Pre-Sentence 16 Report notes that he pled guilty to a possession of -- or he 17 pled guilty to unlawful carrying of a firearm in relation to 18 that burglary first and those two counts of armed robbery. 19 In effect, it was actually a possession of a 20 firearm during the commission of a violent crime. And you'll 21 see at the sentence he received a five-year sentence. That 22 statute carries five years. The unlawful carrying that 23 probation put in paragraph 31 only carries a year. So 24 that's -- they put the wrong charge there in paragraph 31. I 25 just noticed it when I was doing my sentencing memorandum.

24 1 But he was actually convicted of possession of a firearm 2 during the commission of a violent crime. 3 So for all those reasons, we just show a continual 4 pattern of Mr. Ware being armed with a firearm, committing 5 the armed bank robbery, getting out, continuing to abuse 6 drugs, arming himself again with a firearm, getting out on 7 bond, and then arming himself again with a firearm and 8 robbing two individuals, burglarizing a home, and possessing 9 a weapon during that whole chain of events. 10 And for all of those reasons, we would contend that 11 a guideline sentence of 37 to 46 months is not appropriate to 12 deter him from future violations because the 57 months Your 13 Honor gave him before had quite no effect on him other than 14 taking him off the streets for 57 months. 15 Our information shows that he is still a member of 16 The Bloods gang although he in the Pre-Sentence Report 17 indicated that he had, quote, disavowed that when he was in 18 the Bureau of Prisons and gone up to some leader and said, 19 I'm not a member any more. But he continues to hang out with 20 them. 21 That it would also -- it would deter criminal 22 deterrence just to him. It would also reflect the 23 seriousness of the offense, him being armed again in such a 24 short time period after he was deemed a felon and committed 25 the armed bank robbery.

25 1 So for all -- and it would also protect the public 2 from future crimes of the defendant. For all of those 3 reasons, we would ask for an upward variance from that 4 current range of 37 to 46 months just to reflect the 5 characteristics and total circumstances of this case and the 6 defendant's prior record. 7 THE COURT: All right. Thank you. All right, Mr. 8 Rogers. I'll hear anything you would like to say and 9 anything he would like to say. 10 MR. ROGERS: Yes, Your Honor. With regard to the 11 motion for variance, everything that the Government has 12 outlined as to reasons why the Court should vary has been 13 taken into account by the Pre-Sentence Report. He's gotten 14 appropriate points in the criminal history category for the 15 prior convictions. Any time there was a problem or a 16 violation with supervised release or probation, he was 17 sanctioned in that regard. So everything that the Government 18 has outlined has been taken into account into the guidelines, 19 by the guidelines. 20 Insofar as him no longer being a gang member, he 21 tells me that he does not affiliate himself with -- he 22 doesn't consider himself a Blood any more. And he's made 23 that known to the gang members. The fact that he still may 24 know and have acquaintances with gang members is only a 25 violation of his supervised release, because he can't be

26 1 legally around known felons if they are known to be felons. 2 But even that has not presented a violation for him. 3 And for the Government to say that his time in 4 prison had no effect, I just don't know where they can 5 conclude that. I mean, people have difficulties on the 6 street all the time, and it's no measure of what 7 rehabilitation did for them in prison or not. 8 Demario is presently serving a 12-year sentence. 9 He is 27 years old. And he will at least get another four 10 years here. I think that is an appropriate sentence for a 11 person of his age and based on the facts and circumstances of 12 this case. As the Government indicated, there had been an 13 outstanding warrant for CDV. The police officers saw him on 14 the front porch. They went to arrest him. A search incident 15 to arrest found the gun in his pocket. There was no 16 incident. He didn't try to flee. He didn't try to use the 17 weapon. There was no struggle. He was very compliant. 18 So based on the nature and circumstances of this 19 offense, that he simply possessed a weapon that he should not 20 have possessed, I would ask you to sentence within the 21 guideline range. 22 THE COURT: Mr. Ware, you are not required to 23 speak, but you are welcome to speak if you wish to say 24 anything. 25 DEFENDANT: No, Your Honor.

27 1 THE COURT: You don't want to speak? Like I said, 2 you're not required, but I want you to understand that you 3 have that opportunity. 4 DEFENDANT: No, Your Honor. 5 THE COURT: Okay. 6 MR. ROGERS: And, Your Honor, let me finally say 7 that I was under the impression that this sentence could not 8 run concurrently with his State court sentence. I've been 9 told that if you are not in State custody -- I mean, if 10 you're not in federal custody, you're not going to get any 11 credit. I have since learned that may not be the case, that 12 this sentence could be concurrent. So I would ask you to 13 consider a portion or all of his sentence to run concurrently 14 with the 12-year State sentence that he's presently doing. 15 THE COURT: It's my understanding that under 16 5(g)1.3, because he is serving an undischarged term of 17 imprisonment for his May 19th sentences on two counts of 18 armed robbery with a deadly weapon, burglary first, and 19 unlawful carrying -- which apparently was not unlawful 20 carrying but was the more serious offense -- that the 21 sentence for this offense may be imposed to run concurrently, 22 partially concurrently, or consecutively to achieve a 23 reasonable punishment for the instant offense. 24 MR. ROGERS: Yes, Your Honor. 25 THE COURT: So I have the discretion under the

28 1 guideline to do that either way. 2 MR. ROGERS: Yes, Your Honor. 3 THE COURT: And you're asking me to -- 4 MR. ROGERS: Use your discretion and run it -- 5 THE COURT: -- use my discretion to make it 6 concurrent. 7 MR. ROGERS: Or partially. 8 THE COURT: Or partially concurrent. 9 MR. ROGERS: Yes, Your Honor. 10 THE COURT: I understand that. Okay. All right. 11 Mr. Ware, anything else you want to say? 12 DEFENDANT: No, ma'am. 13 THE COURT: Okay. Thank you. All right. Anything 14 else from the Government? 15 MS. HAYNES: Just to note on the record, I am sure 16 Your Honor is aware, as we set forth in our sentencing 17 memorandum, we would be asking for a consecutive sentence to 18 achieve the goals that we set forth earlier. 19 THE COURT: Okay. Let me ask you to look at 20 paragraph 31 for a minute. Under conviction number 4 where 21 it says unlawful carrying of a weapon and it gives us a 22 docket number, does Probation -- do your records comport with 23 what Ms. Haynes is saying, that that was a different offense, 24 it wasn't an unlawful carrying offense? Or do the State 25 court record records show that it was unlawful carrying?

29 1 PROBATION OFFICER: No, Your Honor. 2 THE COURT: In other words, it might be a mistake 3 in the State court records or -- 4 PROBATION OFFICER: Our records, we basically got 5 our records from Ms. Haynes. So it may have just been an 6 error in typing it up. I would have to look back and see. I 7 don't know that we even have the -- 8 MS. HAYNES: The State prosecutor provided us an 9 email indicating what he was convicted of. 10 THE COURT: Okay. 11 MS. HAYNES: And I shared that with Mr. Rogers and 12 Probation. And I would note that you can't get five years 13 for unlawful carrying. 14 THE COURT: Well, right. I understand that. So, 15 what I'm getting at is, to make it clear, since I'm talking 16 about running consecutively or concurrently a sentence, I 17 want to make sure that the underlying State conviction is 18 adequately described. And so, is there any objection if the 19 SOR notes that the number 4 conviction in paragraph 31, 20 instead of being unlawful carrying of a weapon as it 21 currently reads should read possession of a firearm during 22 commission of a violent crime? 23 MR. ROGERS: I have no objection. 24 THE COURT: Okay. 25 MS. HAYNES: And, Your Honor, I'm looking at the

30 1 email sent May 19th from the York County prosecutor, Jenny 2 Desch, D-E-S-C-H, indicating that his plea was 12 years on 3 both armed robberies and the burglary. She put burglary 4 second violent and five years on possession of a firearm 5 during a crime, violent crime, and that those were concurrent 6 with each other. Then he got credit for time served up to 7 his 8-8-14 arrest. 8 THE COURT: Is it possible that he was charged with 9 burglary first and pled to burglary second? 10 MS. HAYNES: She may have -- her email says that. 11 I don't have the actual certified conviction. I'm sorry, 12 Your Honor. 13 THE COURT: So, are you saying that you think it's 14 a burglary second conviction or you think it's a -- 15 MS. HAYNES: Her email indicates that. But mr. 16 Ware says it's a burglary first. 17 MR. ROGERS: It's a second. He says it's a second. 18 THE COURT: He pled to a second. 19 MS. HAYNES: That's just what her email says. 20 THE COURT: And that's what she says? 21 MR. ROGERS: Yes, Your Honor. 22 THE COURT: So we'll change number 3 to burglary 23 second for the conviction. All right. So now the way 24 paragraph 31 reads is number 1 is armed robbery with a deadly 25 weapon. Number 2 is armed robbery with a deadly weapon.

31 1 Number 3 is burglary second degree. Number 4 is possession 2 of a firearm during commission of a violent crime. 3 MS. HAYNES: That's correct, Your Honor. 4 THE COURT: Okay. We'll make those corrections on 5 the SOR then. 6 Okay. All right. Then the Court is going to deny 7 the Government's motion for upward variance. The Government 8 made a motion for an upward variance arguing that the Court 9 should consider the 3553(a) factors, which the Court will 10 consider and does consider in deciding the sentence here, but 11 has determined that a sentence of 46 months, which is the top 12 end of the guideline range here, consecutive to his State 13 sentence, is sufficient but not greater than necessary to 14 achieve the purposes of sentencing. 15 I have considered the instant offense which is a 16 felon in possession offense where he was found in possession 17 of a loaded.380 firearm in his pocket on a porch when he was 18 arrested on another charge. I have considered that there was 19 no incident related to that other than the simple possession 20 of the firearm on that date, and that he was cooperative at 21 the time of his arrest, did not attempt to use the firearm. 22 I have considered the history and characteristics 23 of the defendant, and he is a category IV offender. He would 24 have been an armed career criminal had this conviction not 25 been a subsequent conviction. And he will be an armed career

32 1 criminal if he has a firearm offense after he serves this 2 time. So you have used up all your chips. And next time you 3 get caught with a gun, you're going to be an armed career 4 criminal, and you're going to be facing not less than 15 5 years mandatory in federal prison. But because of the timing 6 of these particular convictions, that didn't happen to you 7 this time. 8 I agree with the Government that your history and 9 characteristics show repetitive criminal conduct, that you 10 have basically been a very difficult defendant in terms of 11 supervising, and you have violated your supervision and 12 required revocations and have shown no good effects from the 13 time period that you have spent in custody when you've gotten 14 out. And that's the primary reason why I'm sentencing you to 15 46 months which is the top end of the guideline range rather 16 than 37 months which is the bottom end of the guideline 17 range. 18 That is also a reason why I am running this 19 sentence consecutive to your State sentence. I understand 20 that I have the discretion under the guidelines to run it 21 partially concurrent or totally concurrent, and I find that 22 that would not be appropriate in this case because that 23 offense occurred subsequently and because of the seriousness 24 of your record. 25 I have also considered the need for unwarranted --

33 1 to avoid unwarranted sentencing disparities. And you don't 2 have a similarly situated co-defendant. I have considered 3 the need for the sentence imposed to reflect the seriousness 4 of the offense, promote respect for the law, provide adequate 5 deterrence, just punishment, and to protect the public from 6 further crimes. So for all of those reasons, I have 7 determined that a sentence of 46 months consecutive is the 8 appropriate sentence here. 9 So having calculated and considered the advisory 10 sentencing guidelines as well as the statutory sentencing 11 factors in 3553(a), it is the judgment of the Court that you, 12 Demario Ontrey Ware, are hereby committed to the custody of 13 the Bureau of Prisons to be imprisoned for a term of 46 14 months consecutive to the State sentence that you are 15 currently serving which is described in paragraph 31 of your 16 Pre-Sentence Report. There are four docket numbers there 17 that you'll need to use to run the sentence consecutive to 18 those State sentences. 19 It appears that you do not have the ability to pay 20 a fine, and so the fine is waived, but you must pay the 21 mandatory $100 special assessment fee which is due 22 immediately. 23 When you are released from imprisonment, you'll be 24 placed on supervised release for a term of three years. 25 Within 72 hours of your release, you must report in person to

34 1 the Probation Office in the District to which you are 2 released. 3 While you're under supervision, you must comply 4 with our court's mandatory and standard conditions of 5 supervision and the following special conditions. You'll be 6 required to participate in random drug testing as 7 administered by the Probation Office. And unless you are 8 able to secure stable and verifiable employment, you will be 9 required to participate in a vocational training or work 10 force development program as approved by the Probation 11 Office. 12 Are there any objections to the form of the 13 sentence, Mr. Rogers? 14 MR. ROGERS: No, Your Honor. 15 THE COURT: By the Government? 16 MS. HAYNES: No, Your Honor. 17 THE COURT: Now, you signed a plea agreement where 18 you had an appeal waiver. I told you at your plea that I 19 would not enforce the appeal waiver if you were ruled against 20 on this issue concerning the violent crime. But you won that 21 motion. And, therefore, that appeal waiver is in effect. 22 MS. HAYNES: Actually, Your Honor, at the guilty 23 plea you told him -- I mean, this issue wasn't on the table. 24 What you told him is if he was an armed career criminal. 25 THE COURT: Right. Well, in any event, it doesn't

35 1 matter because he prevailed. So the appeal waiver kicks in. 2 That means that you gave up your right to appeal, and only in 3 very unusual circumstances may someone who has done that 4 nevertheless pursue an appeal. 5 You should discuss that with Mr. Rogers. And if 6 you decide to try to seek an appeal, it must be done by 7 filing a written notice of appeal with this Court within 14 8 days of the entry of the judgment order in your case. Mr. 9 Rogers will advise you of that deadline. And if you and he 10 disagree about whether an appeal should be taken, you may 11 file your own appeal, but it must be filed with this court 12 within that same 14-day period. And if you're unable to 13 afford the services of a lawyer to handle the appeal, you may 14 apply for court-appointed counsel from the Court of Appeals. 15 Do you understand? 16 DEFENDANT: Yes, ma'am. 17 THE COURT: Okay. And you've asked for a close to 18 home place. Do you have a particular place in mind? 19 DEFENDANT: Bennettsville. 20 THE COURT: Bennettsville? All right. I'll 21 recommend Bennettsville. 22 All right. Are there counts to be dismissed? 23 MS. HAYNES: There are no counts to be dismissed, 24 Your Honor. But we would move to dismiss the forfeiture 25 allegation as it's been adjudicated or handled

36 1 administratively. 2 THE COURT: Anything else in this matter? 3 MS. HAYNES: Nothing from the Government, Your 4 Honor. Thank you. 5 THE COURT: Then, Mr. Ware, you are remanded to the 6 custody of the United States -- no. I'm sorry. You are 7 remanded to State custody with a federal detainer which will 8 be filed. And you'll be taken into federal custody at the 9 appropriate time. Okay. Mr. Rogers, was there anything 10 else? 11 MR. ROGERS: No, Your Honor. 12 THE COURT: Okay. He's here on a writ. Right? 13 MR. ROGERS: Yes, Your Honor. 14 MS. HAYNES: Yes, Your Honor. 15 THE COURT: Okay. So he goes back to the State. 16 All right. Thank you. 17 MS. HAYNES: Thank you, Your Honor. 18 (WHEREUPON, the proceedings are concluded.) 19 *** 20 I certify that the foregoing is a correct transcript from the 21 record of proceedings in the above-entitled matter. 22 23 s/jennifer H. Williams 24 August 21, 2015 25 Jennifer H. Williams, RPR