Opinion
CASE NO.: 2:95-CR-066(3).
October 13, 2010
OPINION AND ORDER
Defendant James R. Brown has filed a pro-se Petition for Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 296). The Government has filed a Response (Doc. 297), and this matter is now ripe for review. For the reasons that follow, Defendant's Motion is DENIED.
I. BACKGROUND
Defendant James R. Brown was convicted of armed robbery, two Hobbs Act armed robberies, a Hobbs Act conspiracy and three violations of 18 U.S.C. § 924(c). The Defendant was sentenced by this Court on December 18, 1995, to a total of 650 months on Counts 1-5, and 8-9. Defendant was also sentenced to three years supervised release, ordered to pay a special assessment of $350, and ordered to pay restitution in the amount of $15,899.69, jointly and severally with his co-defendants.
Defendant Brown has titled his Motion as one for relief under 18 U.S.C. § 3582(c)(2), but in the same sentence argues his sentence was imposed in violation of the 6th, 14th, and 5th Amendments of the United States Constitution. Defendant requests a reduction of his term of imprisonment based on the following arguments: ineffective assistance of counsel; impermissible use of 18 U.S.C. § 924(c); violation of the 5th Amendment double jeopardy clause of the United States Constitution; violation of his 5th and 6th Amendment rights in the jury deliberations and instructions; and violation Amendments 591 and 599 of the United States Sentencing Guidelines.
The Government argues that while Defendant's Motion was docketed as a § 3582(c) Motion related to the crack cocaine amendments to the United States Sentencing Guidelines, the Defendant was not charged and/or convicted of any offenses related to crack cocaine. Further, the Government argues that many of the Defendant's arguments are, in essence, a petition pursuant to 28 U.S.C. § 2255 because he raises claims that are not properly raised pursuant to 18 U.S.C. § 3582(c).
The Court will consider first consider whether any of the Defendant's arguments entitle him to relief under 18 U.S.C. § 3582(c), and then the Court will turn to the Government's argument that Defendant's Motion is a successive 28 U.S.C. § 2255 petition.
II. 18 U.S.C. § 3582(c)
18 U.S.C. § 3582(c)(2) permits modification of a sentence for a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the United States Sentencing commission pursuant to 28 U.S.C. § 994(o). 18 U.S.C. § 3582(c)(2) is an exception to the general rule that a federal court may not modify a term of imprisonment once it has been imposed. Dillon v. United States, ___ U.S. ___, 130 S. Ct. 2683 (2010); United States v. Allen, ___ F.3d ___, 2010 WL 2852323 (6th Cir. July 22, 2010). A district court, however, has the discretion to deny a § 3582(c)(2) motion even if the amendment has lowered the guidelines range. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997).
Section 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o) . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with the applicable statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). Relevant factors discussed in 18 U.S.C. § 3553(a) include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense and promote respect for the law; (4) whether the sentence provides just punishment for the offense; (5) whether the sentence is an adequate deterrence to criminal conduct; (6) whether the sentence will protect the public from further crimes of defendant; and, (7) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a).
The Sentencing Commission has issued a policy statement explaining how a district court should exercise its discretion when considering a § 3582(c)(2) motion. It states:
In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced. . . .
U.S.S.G. § 1B1.10(b). The Sentencing Commission lists the amendments in subsection (c) from which a § 3582 motion may arise.
The Government argues, and the Court agrees, that the Defendant raises only one issue that could conceivably be considered under 18 U.S.C. § 3582(c)(2). Defendant references Amendments 591 and 599 to the United States Sentencing Guidelines.
Defendant argues that
Amendment 591 has altered the U.S. Sentencing Guidelines Manual 1B1.1(a) to instruct the District Court to determine pursuant to U.S.S.G. Manual 1B1.2 from Chapter 2 (Offense Conduct) applicable to the offense of conviction and has altered 1B1.2(a) to also instruct the sentencing court to refer to the statutory index (Appendix A) that will determine the Chapter 2 offense guidelines referenced. The U.S.S.G. Manual App. C, amendment 591 requires the initial selection of the offense guideline to be based only on the statute or offense of conviction. Since Title 18 U.S.C. § 2113 already imposes enhanced sentence for "armed bank robbery" accomplished with a weapon or device, the imposition of any additional sentencing under Title 18 U.S.C. § 924(c) is erroneous.
(Def's Petition at 3).
Both Amendment 591 and 599 were given retroactive effect under § 1B1.10 and became effective on November 1, 2001, after the Defendant was sentenced. However, nothing in either amendment suggests that the Defendant was improperly sentenced.
Amendment 591 modified USSG §§ 1B1.1(a), and, 1B1.2(a) 2D1.2, as well as the Statutory Index's introductory commentary. The amendment resolved a circuit conflict concerning § 2D1.2 and also clarified that "the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction unless the case falls within the limited `stipulation' exception set forth in § 1B1.2(a)." USSG App. C, p. 32 (Supp. 2000). Where the offense involved a conspiracy, the amendment directs the court to "refer to § 2X1.1 . . . as well as the guideline referenced in the Statutory Index for the substantive offense." Id. at 30.
As the Government correctly asserts, Amendment 591 has no impact on Defendant's sentence. Defendant's offense level was not enhanced pursuant to § 2D1.2. Further, Defendant was sentenced in accordance with the appropriate offense guidelines. His base offense levels for the robbery convictions were determined based on § 2B3.1. There was no base offense level for the § 924(c) conviction because there is a mandatory minimum sentence of 5 years consecutive to the punishment for a crime of violence. See 18 U.S.C. § 924(c); U.S.S.G. § 2K2.4(a).
Defendant appears to be arguing with respect to Amendment 599 that it does not permit the imposition of a sentence under 18 U.S.C. § 924(c) if the underlying offense (i.e., armed bank robbery or Hobbs Act robbery) involves an enhanced sentence for imposition of a firearm. However, Defendant's interpretation of that amendment is incorrect.
Amendment 599 provides for certain changes to the commentary to U.S.S.G. § 2K2.4, which impacts the sentence of a defendant who is convicted under 18 U.S.C. §§ 844(h), 924(c), or 929(a). In particular, the amendment clarifies "under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapon enhancements contained in the guidelines for those other offenses. The amendment directs that no guideline weapon enhancement should be applied. . . ." U.S.S.G. App. C, p. 71 (Supp. 2000). In calculating the base offense level for Defendant's armed bank robbery conviction in Count 8, or the two Hobbs Act robbery convictions in Count 2 and 4, no specific offense characteristics for possession of a firearm should be added to the base offense level, where the Defendant is also to be sentenced for an 18 U.S.C. § 924(c) offense related to that same robbery.
The Court has reviewed the Defendant' presentence investigation report and the guideline calculation for the armed bank robbery in Count 8 and the two Hobbs Act robbers in Counts 2 and 4 were properly calculated, in conformity with Amendment 599. Defendant's base offense level for those three robberies were not increased by the specific offense characteristics related to possession of a firearm, under U.S.S.G. § 2B3.1(b)(2). (See PSR at ¶¶ 55, 62, and 70). Count 1, the Hobbs Act conspiracy, did receive an enhancement for possession of a firearm pursuant to U.S.S.G. § 2B3.1(b)(2), because it did not have a specific § 924(c) charged tied to it. It also involved robberies that were not charged as a substantive count, i.e. the Dairy Mart robbery on March 9, 1995). (PSR at ¶ 48). Accordingly, Amendment 599 is not applicable to Defendant's case and he is not entitled to relief under 18 U.S.C. § 3582.
Even if the Court were to find that Amendment 599 were applicable to Defendant's case, the language of 18 U.S.C. § 3582(c)(2) makes it clear that the authority of the court to alter a sentence is discretionary and not mandatory. The Court, therefore, has discretion to determine if a reduction in appropriate under the facts of the particular case. Considering the § 3553(a) factors such as whether the sentence provides just punishment for the offense, whether the sentence is an adequate deterrence to criminal conduct, and whether the sentence will protect the public from further crimes of defendant, Defendant's sentence in this case is justified. Thus, for all the reasons stated above, Defendant's Petition for Modification of his Sentence pursuant to 18 U.S.C. § 3582(c)(2) is DENIED.
III. SUCCESSIVE 28 U.S.C. § 2255 PETITION
Defendant filed a motion to vacate his conviction or sentence pursuant to 28 U.S.C. § 2255 on March 2, 1999. Document 183; James R. Brown v. United States of America, 2:99-CV-224. That action was dismissed on August 2, 2000. (Docs. 242, 243). Defendant filed another motion to vacate pursuant to § 2255, see Order, Document 265, which was transferred by this Court to the United States Court of Appeals for the Sixth Circuit as a successive petition. Order, Document 270. The United States characterizes this matter as yet another successive petition and this Court agrees with that characterization.
Under the provisions of 28 U.S.C. § 2244(b)(3)(A), (C), a successive petition cannot be filed in the District Court unless the petitioner files an application in the appropriate Court of Appeals and that Court issues an order authorizing the filing of the successive petition. See also In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). It does not appear that Defendant has obtained the required authorization from the Sixth Circuit in connection with his current filing. Under these circumstances, this Court cannot entertain Defendant's successive motion to vacate.
IV. CONCLUSION
For the reasons stated above, Defendant's Petition for Modification of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2) is DENIED. The Clerk shall remove Document 296 from the Court's pending motions list.
To the extent that the Petition may properly be characterized as a successive petition under 28 U.S.C. § 2255, this action is hereby ORDERED TRANSFERRED, pursuant to 28 U.S.C. § 1631, to the United States Court of Appeals for the Sixth Circuit.