United States v. Duvall , 209 F. Supp. 3d 125 ( 2016 )

FILED
UNITED STATES DISTRICT CoURT JUL 2 0 2015
FOR THE DISTRICT OF COLUMBIA cum u_s. D|smct & Bankmpwy
counts for the Dlstrlct of Columbla
uNlrEl) sTATEs oF AMERICA
V.
criminal No. 09-236-1 (RCL)
l)Avll) A. DUVALL,
Defendant.
SS€€SS&€§
MEMORANDUM OPINION AND ORDER
Before the Court are defendant David Duvall’s two separate motions [205, 213] for
sentence reductions under 18 U.S.C. § 3582(c)(2). While the first motion is based upon the
retroactive application of U.S. Sentencing Guidelines’ Amendment 750, which lowered the
sentencing ranges for crack cocaine offenses, the second motion is based on Amendment 782,
which applies more broadly and is commonly known as "all drugs minus two."l Each motion must
be analyzed under the "two-step inquiry" set forth in Dill0n v. United States, which requires that
courts first determine if a defendant is eligible for a reduction under § 3582(c)(2) and then
determine whether or a not such a reduction is warranted according to the factors enumerated in
18 U.S.C. § 3553(a). 560 U.S. 8l7, 827 (20l0). After considering Duvall’s motion [205] for a
sentence reduction under Amendment 750, the govemment’s response [209], and Duvall’s reply
[21 l], as well as Duvall’s motion [213] under Amendment 782, the government’s response [224],
Duvall’s reply [227], the entire record in this case, and the applicable law, the Court will DENY
' Each motion operates under the same legal framework set out in § 35 82(¢)(2); they simply correspond to
different retroactive amendments to the Sentencing Guidelines. Because the relevant facts and legal
arguments remain constant from one motion to the next, the Court’s decision on one motion will necessarily
resolve the issues presented in the other motion.
both of Duvall’s pending motions [205, 213]. In short, Duvall is ineligible for a sentence reduction
under 18 U.S.C. § 3582(0)(2) because his sentence was not "based on" a subsequently lowered
range; moreover, even if the Court were authorized to reduce Duvall’s sentence, such a reduction
would be inconsistent with the sentencing factors found in § 3553(a) and would therefore be
unwarranted under the second step of Dillon’s two-part inquiry.
I~ ;,
On September 17, 2009, a Grand Jury in the District of Columbia issued a one-count
Indictment against Duvall and four co-defendants for Conspiracy to Distribute and Possess with
Intent to Distribute 50 Grams or More of Cocaine Base and to Distribute and Possess with Intent
to Distribute 5 Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846, 84l(a)(l).
Presentence investigation Report ("PSR") 11 l, ECF No. l29. In short, the Grand Jury found that
from at least August 2007 until his arrest in September 2009, Duvall and his associates supplied
large quantities of power cocaine to street-level dealers, who would then cook the cocaine into
crack and sell it throughout Washington, D.C. See United States v. Duvall, 705 F.3d 479, 481 (D.C.
Cir. 2013). Following Duvall’s indictment and arrest, the Court arraigned him on September 23,
2009, at which time he was held without bail pending trial. ECF No. 4, l l.
While trial was pending, the government filed a criminal information document under 21
U.S.C. § 841(b)(1)(A) to establish that Duvall had two prior convictions for felony drug offenses
and to make it so that Duvall would face a mandatory minimum life sentence if he were convicted
of his third drug offense at trial. See ECF No. 66. Specifically, § 841(b)(1)(A) states: "If any
person commits a violation of this subparagraph or of section 849, 859, 860 or 861 of this title
after two or more prior convictions for a felony drug offense have become fmal, such person shall
be sentenced to a mandatory term of life imprisonment without release . . . ." Therefore, because
."E"
A. Duvall Is Ineligible for a Sentence Reduction
Because Duvall’s original sentence was not "based on" a subsequently-lowered sentencing
range, he is ineligible for a sentence reduction under § 35 82(0)(2). At its core, Duvall’s argument
goes as follows: First, Duvall’s total offense level was set at 31, which corresponds to a sentencing
range of 108-131 months. Next, pursuant to Amendments 782 and 788, his total offense level was
retroactively reduced two points, resulting in a new corresponding sentencing range of 87-108
months. Lastly, according to Duvall’s argument, because this subsequently-lowered 108-131
month guideline range played some role in the "analytic framework" the judge used to impose his
original sentence, In re Sealed Case, 722 F.3d 361 , 366 (D.C. Cir. 201 3) (citing Freeman v. United
States, 564 U.S. 522, 537 (2011)), Duvall’s sentence was "based on" a subsequently-lowered
sentencing range and he should be considered eligible for a proportional reduction under §
3582(c)(2).
Duvall is correct that the original 108-135 month range that corresponded to Duvall’s total
offense level and criminal history category has been retroactively lowered; however, that
sentencing range was not part of the analytical framework the judge used to impose his sentence.
Therefore, according to the standard laid out in Epps and In re Sealed Case, Duvall is ineligible
for the sentence reductions that he currently seeks pursuant to § 3582(0)(2).
In order for the Court to have the authority to reduce a defendant’s sentence pursuant to §
3582(0)(2), the defendant must.satisfy two basic eligibility requirements: his sentence must have
been "‘based on’ a subsequently-lowered guideline range, [and] . . . the sentence reduction [must
be] consistent with U.S.S.G. § lBl . 1 0, the policy statement governing § 3582(0)(2) proceedings."
In re Sealea' Case, 722 F.3d 361, 366 (D.C. Cir. 2()]3) (quoting Dillon v. United States, U.S.
817, 827 (2010)). When considering these requirements, the above discussion of Epps and
ll
Freeman demonstrates that it is often difficult to assess whether or not a sentence was "based on"
_a specific sentencing range when a defendant and the government entered into a Rule 1 l(c)(1)(C)
plea agreement and the Court imposed the sentence contained in that agreement. As stated, Epps
and In re Sealea' Case are controlling and hold that "a defendant’s sentence is ‘based on’ a
subsequently-lowered guideline range ‘to whatever extent’ that range was a relevant part of then
analytic framework the judge used to determine the sentence." In re Sealed Case, 722 F.3d 361,
366 (D.C. Cir. 2013) (citing Freeman v. United States, 546 U.S. 522, 537 (20l l)).
When conducting this analysis, the D.C. Circuit has directed that the "focus . . . ought to
be on the reasons given by the district court for accepting the sentence that it ultimately imposed,
not on the parties’ agreement.” United States v. E£vps, 707 F.3d 337, 353 (D.C. Cir. 20l3) (citation
omitted)). Consistent with this directive and as recently articulated in United States v. Barajas,
-"[s]ince Epps, courts in this Circuit have found three sources of evidence for determining the
connection between a Rule ll(c)(l)(C) sentence and the Guideline range: sentencing hearings,
plea hearings, and the text of the plea agreement.g" Crim. No. 11-148 (ESH), 2016 WL 1328095at *2 (D.D.C. April"5, 20l6) (citing United States v. Gross, Crim. No. 10-0036 (PLF), 2016 WL
4l0985 (D.D.C. Feb. 2, 2016); Um``tea’ States v. Santana-Villanueva, 144 F. Supp. 3d 149 (D.D.C.
2015); United States v, Galaviz, 130 F. Supp. 3d 197 (D.D.C. 2015)).
In looking to Epps’s standard and relying on the sources of evidence described in Barajas,
it is clear that although the Sentencing Guidelines were referenced in these proceedings, Duvall’s
168-month sentence was not "based on" any subsequently-lowered sentencing range. Indeed, the
broader record of the case_namely, the sentencing and plea transcripts-shows that Duvall was
1_ _ _‘_J,_
3 Although under Epps,_the agreement itself cannot be the focus of the legal inquiry, it is still relevant, as it
may shed light on the reasons the court accepted the plea agreement and imposed the sentence contained
therein.
12
given two choices: face a jury and be exposed to the risk of a mandatory minimum life sentence
or accept the 168-month sentence. See United States v. Duvall, 705 F.3d 479, 481 (D.C. Cir. 2013)
("Duvall would face a mandatory life sentence if found guilty ‘at trial. . . . His attorneys negotiated
with the Government, and the parties ultimately reached a plea agreement that avoided a possible
life sentence."). As such, the 168-month sentence effectively operated as a decrease from the life
sentence that Duvall would have received had he been found guilty at trial. See Statement of
Reasons 2, ECF No. 136 (showing that the 168-month sentence imposed was "below the advisory
guideline range"). lt was not, as Duvall argues, some sort of upward departure from the 108-135
month guideline range that was linked to his criminal history and to the amount and kinds of drugs
Duvall attempted to sell in this particular offense.
Consistent with this interpretation, Judge Lamberth’s statements at the plea acceptance
demonstrate that the Court imposed the 168-month sentence entirely because it was compelled to
do so under Rule ll(c)(l)(C), not because the sentence was otherwise reasonable in light of the
108-135 month sentencing range. More specifically, at sentencing, the (-Iourt stated:
The Court: I take it the government’s suggestion that the ll(C)(l)(c) term of 180
months be reduced to 168 months is agreeable to the defendant, and so that that’s,
in effect, a consent modification of the ll(C)(l)(c)?
Mr. Carney: It is, Your Honor, and we’re appreciative of that. Your Honor can
consider that in terms of whatever you think is fair and right.
The Court: Well, under ll(C)(l)(c), I take it, I’m bound by the 168?
Mr. Carney: Yes, Your Honor.
The Court: All right, if the defendant would come forward.
Plainly, the factual circumstances of this case are very different from those of In re Sealea' Case,
where Circuit found that the defendant’s sentence was "based on" a subsequently-lowered range
after the district judge expressly referenced a "further reduction from the guideline range" at the
13
sentencing hearing. 722 F.3d at 366. In Duvall’s case, the sentencing judge made no mention of a
specific guideline range, or even the Sentencing Guidelines more broadly, strongly suggesting that
Duvall’s 168-month sentence was not based on the subsequently-lowered 108-135 month range.
See Epps, 707 F.3d at 352 (ruling that to be eligible for a sentence reduction, the original sentence
must have been "based on a specific guidelines range," not simply imposed "in accordance with"
the Guidelines_).
This analysis is further supported by portions of the Court’s original memorandum and
order dated December 16, 2011 denying Duvall’s first motion for a sentence reduction under §
3582(c)(2). In that ruling, this Court found that a life sentence_not a subsequently-lowered
sentencing range_was Duvall’s original guideline range. Indeed, the Statement of Reasons shows
Duvall’s guideline imprisomnent range to be "life," not 108-135 months, see ECF No. 13_6, as do
both Duvall’s presentencing report and the Probation Memorandum prepared to assist the Court
on the present motion. See ECF No. 2l7; see also supra at 4 (explaining how the mandatory
minimum of life under 21 U.S.C. § 84l``(b)(l)(A) worked in combination with § 5Gl.l of the U.S.
Sentencing Guidelines Duvall’s Guideline range at life). Because Duvall’s original guideline
sentence was life, and because that sentencing range has not been lowered, Duvall’s sentence could
not have been "based-on" a subsequently-lowered range. Therefore, he is ineligible for a sentence
reduction.9
9 The Court provided lengthy analysis on this point when it denied Duvall’s original motion for a sentence
a reduction in 201 l. See Mem. & Order 3-4 n.l, ECF No. 170.
14
To undercut this analysis, Duvall makes three primary arguments.l° Specifically, he argues
that the Court must have based it sentencing decision on the subsequently-lowered 108-135 month
guideline range because (i) the Guidelines calculation appear "plainly in the Statement of
Reasons"; (ii) defendant’s counsel submitted a sentencing memorandum with "possible guidelines
sentences," which tl'ie govemment did not object to; and (iii) at the sentencing hearing, counsel for
the govemment remarked that that the 168-month sentence would be "within the parameters of the
Guidelines." Reply to Govemment’s Opp’n 4, ECF No. 227.
‘° Duvall also argues that language in In re Sealed Case and Freeman should be interpreted to mean that
any and all prisoners who were sentenced according to a Rule ll(c)(l)(C) plea agreement are always
eligible for a sentence reduction under § 3582(c)(2). See Reply to Government’s Opp’n 3, ECF No. 227
("Even if there remains some small subset of defendants who enter into Rule _l l(c)(l)(C) pleas who are not
eligible for sentencing relief under Section 3582(0)(2) (a point we do not concede here). . .").
Specifica'lly, on the third page of his reply brief, Duvall highlights the following language from In re Sealed
¢Case: "a sentence that emerges from a Rule ll(c)(l)(C) plea agreement is always eligible for a subsequent
reduction because ‘[t]he sentencing Guidelines require the district [court] to give due consideration to the
relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a
condition of the guilty plea."’ In re Sealed Case, 722 F.3d at 365 (quoting Freeman, 564 U.S. at 530).
At first glance, this language seems straightforward, and indeed, Judge Walton credited a similar argument
in United States v. Lamont, Crim. No. 04-536-1), ECF No. 577. Specifically, the Judge found that the
defendant’s Rule ll(c)(l)(C) sentence was "based on" a specific guidelines range because the Court was
"‘forbid[den]’ from ‘accepting [a Rule] ll(c)(l)(C) [plea] agreement without first evaluating the
recommended sentence in light of the defendant’s applicable sentencing range." Lamont, at 7 (citing
Freeman, 564 U.S. at 529).
Lamont’s reasoning however is inapplicable to the present case. Duvall’s original guideline range was
"life," and the Sentencing Commission has left that range unchanged. As such, Duvall’s range was not
"based on" a subsequently-lowered sentencing range. In re Sealed Case’s language that "a sentence that
emerges from a Rule ll(c)(l)(C) plea agreement is always eligible for a subsequent reduction" can only
apply when the Sentencing Comrr1ission later lowered the defendant’s original sentencing range_which is
not the case for Duvall, whose range of "life" was never reduced.
Not only that, but the excerpt of In re Sealed Case defendant quotes is in direct tension with In re Sealed
Case’s other pronouncement that: "Although the Guidelines require a sentencing court to calculate, as a
matter of course, a guideline range before determining whether a mandatory minimum applies, we
concluded in C00k [v. Um``ted States, 594 F.3d 883, 887 (D.C. Cir. 2010)] that .this routine and required
calculation did not mean that the defendant was sentenced "based on" on his guideline range." 722 F.3d at
366. In the Court’s view, this tension reduces the importance and persuasiveness of the excerpted language
that Duvall cites to in his reply brief, '
15
All three of these arguments fail. First, the fact that the Court listed Duvall’s total offense
level and criminal history category in his Statement of Reasons alone does not show that Duvall’s
sentence was base_d on a subsequently-lowered range. Indeed, courts are required to perform such
calculations. See, e.g. , Freeman, 564 U.S. at 530 ("The [Sentencing] Guidelines require the [Court]
to give due consideration to the relevant sentencing range, even if the defendant and prosecutor
recommend a specific sentence as a condition of the guilty plea."). Therefore if such a calculation
universally qualified a defendant for a sentence reduction, then any defendant seeking a reduction
would become automatically eligible-something prior case law tells us is not true. See, e.g.,
United States v. Cook, 594 F.3d 883, 886-887 (D.C. Cir. 2010) (finding that although the "court
had initially calculated a guideline range that the Amendment to the Sentencing Guidelines
altered," that guideline range was "trumped by a statutory minimum"); United States v. Barajas,
2016 WL l328095 at *l, *4, Crim. No. ll-148 (ESH) (D.D.C. Apr. 5, 2016) (finding that although
"the Court held a sentencing hearing at which it calculated the Guidelines range that would apply
to defendant, as it is required to do," the sentence contained in his Rule ll(c)(l)(C) agreement was
not "based on" that range); United States v. Gross, Crim. No. 10-0036, ECF No. 52, at 5 (D.D.C.
Feb. 2, 2016) (Friedman, J.) (ruling that although the "Court was required to explain the applicable
:.- Guidelines sentencing range" that range was "irrelevant” to the sentence contained in defendant’s
Rule ll(c)(l)(C) plea agreement). Not only that, but the Court did not even calculate Duvall’s
range to be 108-135. lt set Duvall’s range at "life," diminishing the importance of this routine
calculation and lending furtherlsupport to the Court’s central finding that Duvall’s sentence was
not "based on" any subsequently-lowered range.
After making that argument, Duvall contends that his own submission of a sentencing
memorandum that detailed "possible guidelines sentences under several scenarios" indicates that
.'.¢ -
16
his sentence was based on a range subsequently and retroactively lowered by the Sentencing.-
Commission. See ECF No. 227 at 4. lndeed, it is true that in Duvall’s memorandum in aid of
sentencing, he explicitly states, "Mr. Duvall would be facing a level 34, without any adjustments,
and a criminal history category I, which would be 151-188 months of incarceration with a ten year
mandatory minimum. With a three level reduction for acceptance of responsibility, Mr. Duvall
faces 108 to 135 months." Def.’s Mem. in Aid of Sentencing, ECF No. 183 at 3.11 These ranges
were subsequently lowered by Amendment 782 and made retroactive by Amendment 788,
meaning that if Duvall was actually sentenced according to them, he would be eligible for a
reduction under § 3582(c)(2)-provided the reduction was consistent with U.S.S.G. § 1B1.10. As
stated, however, courts are bound to make these types of "routine" calculations before imposing
a sentence. In re Sealea’ Case, 722 F.3d at 366. The fact that the defendant performed and
submitted the relevant Guidelines calculations to the Court does not alter the underlying fact that
the Court’s sentence was not based on those guideline ranges. For reasons already described_
including the Court’s calculation that Duvall’s sentencing range was "life"_the 168-month
sentence was in no way based on the subsequently-lowered 108-135 month sentencing range. The
fact that Duvall’s counsel calculated this range and included it in a court filing does nothing to
change the underlying "ana1ytica1 framework" the Court used to impose its sentence. Freeman,
564 U.S. at 529.
Responding to Duvall’s third argument, the government counsel’s statement that Duvall’s
sentence was "within the parameters of the Guidelines" does not transform the Court’s rationale
.e_
for imposing Duvall’s 168-month prison term. A defendant is eligible for a reduction only if his
sentence was "based on a specific Guidelines range." Epps, 707 F``.3d at 352. lndeed, in Epps, the
h _
ll The sentencing Judge gave Duvall a three-point reduction for acceptance of responsibility. See PSR 11 23¢;-_~.
1 7
D.C. Circuit ruled that a plea agreement’s;' statement that a sentence "will be imposed in
accordance with the Guidelines" was "ambiguous and insufficient alone to anchor the inference
that a sentence was determined by an otherwise unspecified Guidelines range." Id. (citing Cook v.
Unitea' States, 594 F.3d 883', 888 (D.C. Cir. 2010)). The facts in this case are completely
analogous. Counsel for the government simply stated the sentence was "within the parameters of
the Guidelines," and similar to Epps, did not mention a specific guideline range. Therefore, as in
Epps, this passing reference to the Guidelines does not "anchor the"inference" that Duvall’s
sentence was "based on a specific Guidelines range." Epps, 707 F.3d at 352.
In sum, in light of the entire record in this case, the Court finds that under the standard
articulated in Epps and In re Sealed Case, Duvall’s sentence was not based on a subsequently-
lowered sentencing range and he is therefore ineligible for a sentence reduction under §
3582(¢)(2).
B. The Sentence Reduction Is Unwarranted
Even if, theoretically, Duvall were eligible for a sentence reduction, his reduction would
be unwarranted because the lowered range would have had no impact on his sentence and because
the § 3553(a) factors weigh against a reduction. Section 3582(0)(2) permits a reduction only if it
*is "consistent with the applicable policy statements issued by the Sentencing Commission." See
18 U.S.C. § 3582(c)(2). The applicable policy statement is U.S.S.G. § lBl.l0, which the Supreme
Court in Freeman interpreted as follows: "[§ lBl.l0] instructs the district court in__modifying a
sentence to substitute only the retroactive amendment and then leave all original Guidelines
determinations in place. In other words, the policy statement seeks to isolate whatever marginal
effect the since-rejected Guideline had on the defendant’s sentence." 564 U.S. at 2692.
18
In applying this standard, it is clear that the Court would not have imposed a shorter
sentence had the applicable guideline range been lower at the time of sentencing Indeed, the Court
is directed to isolate the impact the 108-135 month sentencing range had on Duvall’s 168-month
sentence, and adjust Duvall"s sentence to where it would have been had the newly-revised 87-108
month range been in place at the time of sentencing. As discussed, however, this range had no
bearing on Duvall’s 168-month sentence. The 168 months were presented to Duvall as an
altemative to the possibility of life in prison and was, in effect, a downward departure from that
potential life sentence. See Statement of Reasons 2, ECF No. 136 (showing that the 168-month
sentence imposed was "below the advisory guideline range"); id. at l (showing Duvall’s
"imprisonment range" to be "life," even though his total offense level was listed as 29). As such,
because the since-reduced 108-135 month guideline range had no "marginal effect" on the
. defendant’s sentence, no modification is warranted under § 3582(0)(2). 564 U.S. at 2692.
Moreover, just as a sentence reduction in this case would be inconsistent with U.S.S.G. §
lBl .l0, it would also be unwarranted in light of the factors laid out in § 3553(a)-. In addition to its
other requirements, § 3582(0)(2) instructs courts to "consider[] the factors set forth in section
3553(a)" before reducing the prison term of an otherwise eligible defendant. 18 U.S.C. §
3582(0)(2); see also Dillon v. United States, 560 U.S. 8l7, 827 (20l0) ("At step two of the
inquiry, § 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and determine
whether, in its discretion, the reduction authorized by reference to the policies relevant at step one
is warranted in whole or in part under the particular circumstances of the case.").
'The first and second § 3553(a) factors, the "nature and circumstances of the offense and
the history and characteristics of the defend_ant," and "the need for the sentence imposed;to reflect
the seriousness of the offense . . . [and] to afford adequate deterrence to criminal conduct . . ."
l9
weigh heavily against the defendant. 18 U.S.C. § 355'3(a)(l)-(2). I‘ndeed, the underlying
circumstances of Duvall’s offense were serious enough that based on his criminal record and the
amount of drugs he was conspiring to sell, Duvall faced a mandatory minimum life sentence. Prior
to this case, Duvall had accrued two felony drug convictions, a conviction for carrying a gun, and
a misdemeanor drug conviction. And in the present case, he traveled to North Carolina to procure
large amounts cocaine and conspired to have it cooked and distributed on a retail basis throughout
Washington, D.C. Needless to say, this conduct paints Duvall’s "history and characteristics" in a
poor light and suggests that a relatively longer sentence is necessary to achieve § 3553(a)(B)(2)’s
goal of adequate deterrence
As opposed to the first two § 3553(a) factors, which weigh against the ldefendant, the sixth
§ 35 53(a) factor, "the need to avoid unwarranted sentence disparities among defendants with
similar records who have been‘ found guilty of similar conduct," is neutral. Because, defendants
similarly situated to Duvall would face a life sentence under 21 U.S.C. § 841(b)(l)(A), decreasing
Duvall’s already-reduced 168-month sentence would not accomplish the goals articulated in
§ 3553(a)(6) and therefore does not favor early release.
Although Duvall disputes these general findings by claiming that ;‘_‘upon release in . . . older
cases, he built a fairly steady work record with employment as a welder, cleaner, security officer,
and vendor," and that "[h]e has absolutely no violence in his past," ECF No. 213, at 4, these
statements are either largely unsupported or patently false. With respect to Duvall’s work history,
the Probation Office was unable to substantiate Duvall’s purported previous employment as
vendor, welder, or cleaner.l,z See PSR 1[ 68 ("Lexis/Nexis records did not return.any business
licenses issued to Mr. Duvall [relating to work as a vendor]."); ia’. at 11 70 ("According to their
12 The Probation Officer did, however, substantiate Duvall’s employment as a security guard, finding
records that showed him employed from May l, 1992 to August l3, 1993. PSR 11 71.
20
Duvall-as detailed in the govemment’s criminal information flling-had felony convictions for
the possession of cocaine and the possession with intent to distribute cocaine in 1995 and 1991,
respectively, § 84l(b)(l)(A)’s mandatory minimum life sentence would come into play if he were
convicted of his third drug-related felony. See Unitea' States v. Duvall, 705 F.3d 479, 481 (D.C'.
Cir. 2013) ("The agreement expressly listed an agreed-upon sentence of 15 years’ imprisonment. .
. far lower than the mandatory life sentence that Duvall would have received had he been convicted
at trial.")
On April 21 , 201 0, roughly three weeks after the govemment filed this criminal
infor1nation, Duvall pled guilty and entered into a plea agreement under Federal Rule of Criininal
Procedure ll(c)(l)(C) (Rule ll(c)( 1)(C)). If a Rule ll(c)(l)(C) plea agreement includes a
"specitic sentence or sentencing range" that the parties determined was appropriate, then once a
court accepts the defendant’s plea, it is bound to impose the agreed-upon sentence. See Fed. R.
Crim. P. ll(c)(l)(C); see also United States v.. Duvall, 705 F.3d 479, 481 (D:C. Cir. 2013) ("If the
district'court accepts a Rule ll(c)(l)(C) plea agreement, the court must impose the sentence listed
in the plea a.greement."). Duvall’s Rule 1 l(c)(_l )(C) plea agreement stated, among other things, that.
Duvall’s relevant -criminal conduct involved between 500 grams and l.5 kilograms of crack
cocaine base and that l68 monthsz was the appropriate sentence for his offense, meaning that if the
Court accepted Duvall’s plea, it was bound to impose the 168-month prison tenn.
On September l0, 2010, this Court imposed Duvall’s agreed-upon 168-month prison term,
which it was bound to do under Rule ll(c)(l)((l). Before imposing its sentence, the Court
calculated Duvall’s total offense level, criminal history level, and corresponding sentencing range,
2 Although the plea agreement itself states that the parties agree a 180-month sentence is appropriate, Plea
Agreement 11 3, ECF No. 9l, the parties later revised their agreement to require a 168-month prison term_
which is what the Court ultimately imposed at sentencing. Transcript of Sentencing at 6-7, Sept. l0, 2010,
ECF No. 227-1.
response, the defendant was never in [Capital Canopy’s] employ."); id. at 71 ("There was no other
information pertaining to the defendant’s employment with this business available in their
recoirds."). With respect to violence, Duvall’s cousin had previously applied for a battery warrant
against him and told police that he had assaulted her. Ia’. 11 at 37. Moreover, when arrested in
response to this battery charge, Duvall was in possession of a firearm that had been reported stolen.
Id. In the court’s view, these facts are inconsistent with defendant’s proffer that "he has absolutely
no violence in his past" and weighs against a‘ sentence reduction.
While these factors weigh against a reduction, Duvall’s good disciplinary record in prison
cuts in the opposite direction. Duvall has been incarcerated for five years and is yet to receive any
disciplinary reports-something the Court is permitted to consider under U.S.S.G. § lBl .10 and
bound to consider under § 3553(a)(2)(B)-(C). See U.S.i-IS.G. § 1Bl.l0 cmt. I(IB')(iii) ("The court
may consider post-sentencing conduct of the defendant that occurred after imposition of the term
of imprisonment in deterrnining: (I) Whether a reduction in the defendant's term of imprisonment
is warranted . . . ."); Pepper ,_v. United States, 562 U.S. 476, 478 (2011) ("His postsentencing
conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central
factor that sentencing courts must consider." (citing 18 U.S.C. § 3553(a)(2)(B)-(C))); cf 18 U.S.C.
§ 3553(a)(2)(B)-(C) ("The court, in determining the particular sentence to be imposed, shall
consider . . . the need for the sentence imposed to afford adequate deterrence to criminal conduct
[and] to protect the public from further crimes of’the defendant.").
Although Duvall deserves credit for his spotless prison record, on balance, a sentence
reduction is unwarranted given the severity of Duvall’s crime and his criminal history. The facts
of this case are remarkably similar to those of Unitea' States v. Lamont, Crim. No. 04-536-1, ECF
No. 577 (D.D.C. Mar. 21, 20l6), where Judge Walton denied the § 3582(c)(2) motion of an
21
otherwise eligible defendant who, like Duvall, had a model disciplinary record in prison. Judge
Walton ruled that any reduction was unjustified in light of the § 3553(a) sentencing factors, see id.
at 7-9, and concluded his opinion with the following:
[A]lthough courts should always be hopeful that individuals convicted for criminal
behavior will reform, that optimism logically diminishes when conduct committed
during an individual’s youth is replicated later in the person’s life. And in the
Court’s experiences, the prospects of further involvement in criminal behavior is
even greater when the offense for which a defendant is before the Court for
sentencing occurred when the defendant is of an advanced age-here age forty_
and the offensive conduct is identical to prior conduct for which the defendant had
been convicted in his youth.
Ia'. at 9.
Similar to the defendant in Lamont, Duvall was 40 when he was originally sentenced, he
had regularly engaged in drug-related criminal behavior in his past, and importantly, the conviction
at issue was for a crime far more serious than he had ever committed. These factors speak directly
to the sentencing goals expressed in 3553(a)(l)-(2), and, as in Lamont, they are substantial enough
to outweigh other, countervailing considerations. For these reasons, the Court finds that even if
Duvall were eligible for a reduction, such a reduction would not be warranted.
IV. CONCLUSION
Because Duvall’s sentence was not "based on" a subsequently-lowered, he is ineligible for
a sentence reduction. Moreover, even if he were eligible, a sentence reduction is unwarranted in
light of the § 3553(a) sentencing factors. After considering Duvall’s motions, the entire record
herein, and the applicable law, the Court will DENY each of his motions for a sentence reduction.
IT IS SO ORDERED on this 20th day of July, 20l6.
c-(;,I£AZZ_
R ce C. Lamberth
United States District Judge
22
as is required by law. See Uni),‘ed States v. Duvall, 705 F.3d 479, 483 (D.C'. Cir. 20l3) ("Before
a Rule ll(c)(l)(C) plea agreement is approved, moreover, the judge must calculate the applicable
Guidelines sentencing range and consider the Guidelines." (citing 18 U.S.C. § 3553(a)(4);
U.S.S.G. § 6Bl.2(c))). In performing these calculations and accounting for Duvall’s three-point
reduction for acceptance of responsibility, the Court found Duvall’s total offense l_evel to be 31 and
his criminal history category to be I.3 Although at the time, such a combination would typically
result in a sentencing range of 108-135 months, the Court set Duvall’s guideline rari.ge at "life."
Essentially,- U.S.S.G. § 5Gl.l(b) states that "[w]here a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." See also In re Sealea' Case, 722 F.3d at 369 ("When the
guideline range for an offense is lower than the statutory mandatory minimum, the mandatory
minimum statute replaces the guideline range and becomes the sentence." (citation omitted))).
Because Duvall was otherwise subject to a mandatory life sentence, § 5Bl.l(b) operated to set
Duvall’s sentencing range at “life," as opposed to 108-135 months, which would otherwise have
been applicable.
3 The Statement of Reasons lists Duvall’s Total Offense Level at 29, not 3l. See ECF No. l36. This was a
clerical error. Duvall’s Total Offense Level would have been 29 had the Court applied 18 U.S.C. § 3553(f)’s
"safety valve" provision. However, because "[t]he Court . . . determined that the Safety Valve did not
apply," Mem. & Order 3 n.l, ECF No. 170, Duvall’s Total Offense Level remained at 3 l. See also PSR 1[1]
26, 33 (showing Duvall’s Total Offense Level to be 29 only after he received a two-point reduction for
meeting the criteria of the "Safety Valve" provision).
4 Several of Duvall’s sentencing documents show his guideline range to be "life." See PSR 11 85 ("[B]ecause
the mandatory terrn of imprisonment is Life, the guideline range for imprisonment is Life."); Probation
Memorandum at 2, ECF No. 217 (showing "Life" as Duvall’s "Original Guidelines Calculation");
Statement of Reasons, ECF No. 136 (showing Duvall’s "imprisonment range" to be "life"). Moreover, the
Court in its original opinion denying Duvall’s first motion for a sentence reduction under § 3582(c)(2)
reaffirmed that Duvall’s original guideline range was "life." See Memorandum Opinion 4 n. l, ECF No.
170 ("But, as described above, the appropriate guideline range for the Court to consider is life, both before
and after the guidelines amendment.").
Although generally speaking a court may not modify a term of imprisonment once it has
been imposed, 18 U.S.C. § 3582(0)(2) provides an exception. Under this provision, a court may be
authorized to modify a tenn of imprisonment where the applicable sentencing guideline range has
been retroactively lowered by the Sentencing Commission. One such reduction was Amendment
750, which applied only to crack cocaine offenses and was given retroactive effective on June 30,
20ll. See Mem. & Order 3, ECF No. 170 (providing a brief history of Amendment 750 and its
retroactive application). The first of Duvall’s two pending § 3582(0)(2) motions is brought under
this Amendment.
After passing Amendment 750 to reduce sentences for crack cocaine offenses, in August
2014 the U.S. Sentencing Commission submitted to Congress Amendment 782, which proposed a
downward revision to sentencing ranges for nearly all drug trafficking offenses_not just those
involving crack cocaine. Had Amendment 782 been in effect at Duvall’s sentencing, his total
offense level would have been 29, not 3 l5_meaning that the corresponding applicable guideline
range would have been reduced from 108-135 months to 87-108 months.
Once Amendment 782 became effective, the Commission passed Amendment 788 to allow
Amendment 782’s revisions to be applied retroactively. These retroactive changes_including the
two-point drop in Duvall’s total offense level_became effective on November l, 20l4. Duvall
now brings his second § 3582(0)(2) motion under Amendment 782, believing that these changes
to the Sentencing Guidelines should permit this Court to reduce his sentence proportionally.6
5 As discussed, Duvall’s total offense level was calculated to be 31, not 29 as is erroneously indicated on
the Statement of Reasons. See supra note 3.
6 There is no dispute, however,i that Duvall is subject to a mandatory minimum sentence of 120 months,
which would prevent the Court from reducing Duvall’ s sentence below that point, even if he were otherwise
eligible for a reduction. See Mot. for a Sentence Reduction 4, ECF No. 213 (stating that the "maximum
reduction this Court can award" would result in Duvall serving a 120-month sentence).
H~ .-
Although Duvall has two motions for sentence reductions currently pending, this Court has
already ruled on and denied a separate motion Duvall previously filed under § 3582(c)(2). Duvall’s
first motion [160] for a sentence reduction was filed on August l7, 201 l, and the Court denied it
on December 16, 2011 [170]. Importantly, the Court delivered its ruling before the D.C. Circuit
issued United States v. Epps, 707 F.3d 337 (D.C. Cir. 20l3) and In re Sealed Case, 722 36l
(D.C. Cir. 20l3), two leading cases that set the standard under § 3582(0)(2) for whether or not the
sentence of a defendant who had entered into an Ri1le ll(c)(l)(C) plea agreement was "based on"
a specific and subsequently-lowered sentencing range.
Epps and In re Sealea' Case interpret and apply Freeman v. United States, 564 U.S. 522(2011), a 2011 Supreme Court case which ruled that defendants who had entered into a Rule
ll(c)(l)(C) plea agreement are not automatically ineligible for a sentence reduction under §
3582(c)(2). Freeman, 564 U.S. at 534. Essentially, § 3582(c)(2) only authorizes a court to reduce
a sentence if the defendant’s sentence was "based on" a subsequently-lowered sentencing range.
See 18 U'.``S.C. §;.3582(0)(2). Looking to this statutory language, the govemment argued in Freeman
that no defendant who had entered into a ll(c)(l)(§) plea agreement was eligible for a sentence
reduction because the prisoner’s sentence was not "based on" a subsequently-lowered range.
Rather, under these circumstances, a prisoner’s sentence was "based on" the tenns the govemment
and defendant settled upon when each party entered into the plea agreement. See Freeman, 564
U.S. at 531 ("The Govemment asks this Court to hold that sentences like petitioner’s, which follow
an ll(c)(l)(C) agreement, are based only on the agreement and not the Guidelines, and therefore
that defendants so sentenced are ineligible for§ 3582(0)(2) relief."). Further, the govermnent
argued that "the tenn of imprisonment imposed pursuant to a [l l(c)(l)(C)] agreement [must be] . '
§
. . ‘based on’ the agreement itself," because "[t]o hold otherwise would be to contravene the very
purpose of (C) agreements-to bind the district court and allow the Government and the defendant
to determine what sentence he will receive." Freeman, 564 U.S. at 537 (Sotomayor, J.,
concurring).
In a 4-4-l split decision, however, the Supreme Court rejected the government’s argument.
Four Justices in a plurality opinion ruled that a sentence was based on a subsequently-lowered
guideline "to whatever extent the s``entencing range in question was a relevant part of the analytic
framework the judge used to determine the sentence or to approve the agreement." Freeman, 564
U.S. at 530. Moreover, the opinion elaborated o1i this relatively "broad" reading of § 35 82(0)(2),
stating that "[a sentencing] judge’s decision to accept the plea and impose the recommended
sentence-is likely to be based on the Guidelines; and when it is, the defendant should be eligible to
seek § 3582(c)(2) relief." Id. at 534; cf In re Sealed Case, 733 F.3d 361, 365 (D.C. Cir. 2013) ("A
four-Justice plurality took a broad view . . . .").
Justice Sotomayor, however, rejected the plurality’s reading of § 3582(0)(2), though
concurred in the final judgment. Freeman, 564 U.S. at 537 (Sotomayor, J., concurring) ("I cannot
endorse the plurality’s suggestion that § 3582(c)(2) should be understood to permit the district
court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant
part of the analytic framework the judge used to determine the sentence or to approve the
agreement." (citation omitted)). In her concurring opinion, Justice Sotomayor reasoned that the
sentence of a defendant who had previously entered into a plea agreement could be "based on" a
subsequently-lowered range only if the "agreement expressly uses a Guidelines sentencing range
applicable to the charged offense to establish the term of imprisonment, and that range is
subsequently lowered by the United States Sentencing Commission." Id. at 2695. In comparing
Freeman’ s plurality opinion with Justice Sotomayor’ s concurring opinion, every other circuit court
considered Justice Sotomayor’s concurrence to be controlling because it resolved the case on the
narrowest grounds. 7 In other words, every circuit that considered the question found Justice
Sotomayor’s concurrence lo be binding on lower courts.
With these rulings in the background when Duvall filed his original August l7, 2011
'-`` motion for a sentence reduction, the government and Duvall agreed during those proceedings that
Justice Sotomayor’s concurrence was binding on this Court. See Memorandum and Order 4, ECF
No. 170 ("The parties further agree that Justice Sotomayor’s concurrence [in Freeman] provides
the controlling precedent."). This Court therefore applied Justice Sotomayor’s reasoning and
denied Duvall’s petition, finding that "at no point does the agreement state explicitly that the 180-
month figure was based on any particular guidelines range, nor does it require that the defendant
be sentenced within a particular range." Ia'. at 8. On appeal, the D.C. Circuit affirmed that ruling
and went so far as to say that the question of whether or not Duvall’s sentence was based on a
subsequently-lowered range was "not even a close call" under Justice Sotomayor’s then-prevailing
standard. United States v. Duvall, 705 F.3d 479, 484 (D.C. Cir. 20l3).
Less than one month after the D.C. Circuit affirmed this Court’s denial of Duvall’s original
sentence-reduction petition, the Circuit decided United States v. Epps, 707 F.3d 337 (D.C. Cir.
2013), and effectively altered the legal landscape. In that case, the Circuit ruled that the reasoning
embedded in Justice Sotomayor’s Freeman concurrence was not controlling because it did not
-'-'€ ;See United States v. Rz'ver_cz-Martiriez, 665 F.3d 344, 348 (lst Cir. 201 l); United States v. White, 429 Fed.
App’x 43, 47 (2d Cir. 20ll) (unpublished); Unitea’ States v. Thompson, 682 F.3d 285, 289 (3d Cir.
20l0); United Sz_‘ates v. Brown, 653 F.3d 337, 338 (4th Cir. 2011); United States v. Smith, 658 F.3d 608,
6ll (6th Cir. 201l); United States v. Dixon, 387 F.3d 356, 359 (7th Cir. 20l2); United States v. Browne,
698 F.3d 1042, 1045 (8th Cir. 20l2); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); United
States v. Graham, 704 F.3d 1275, 1278 (l0th Cir. 2013); Unitea' States v. Lawson, 686 F.3d 1317, 1321 n.2
(llth Cir. 2012); see also United States v. Duvall, 740 F.3d 604, 609 (D.C. Cir. 2013) (Kavanaugh, J.)
(concurring in denial of rehearing en banc). . '
"overlap in rationale" with the plurality opinion. Epps, 707 F.3d at 349 (emphasis in original).
Further, after finding that Justice Sotomayor’s concurring opinion was not controlling, the Circuit
ruled that moving forward, district courts in the District of Columbia would be bound to follow
Freeman’s plurality opinion because it was "more persuasive than . . . the concurring opinion." Id.
at 351 .
This change was signif``1cant: Epps ruled that district courts were required to apply a
different standard than this Court-and the D.C. Circuit itself_applied to deny Duvall’s original
August l7, 2011 motion for a sentence reduction. See United States v. Duvall, 705 F.3d 479, 483
(D.C. Cir. 20l3) ("For the purposes of this appeal, both parties agree that Justice Sotomayor’s
opinion controls our analysis . . . . According.ly, we do not further address that question.").
According to Justice Sotomayor’s concurrence, which prior to Epps this. Court understood as
binding, the sentence of a defendant who had entered into an ll(c)(l)(C) plea agreement could be
based on a subsequently-lowered range only if the plea "agreement expressly uses a Guidelines
sentencing range applicable to the charged offense to establish the tenn of imprisomnent, and that
range is subsequently lowered by the United States Sentencing Commission.’-’ Freeman v. United
States, 564 U.S. 522, 534 (201l) (Sotomayor, J., concurring). After Epps, however, a defendant
could successfully argue that the sentence contained in his plea agreement was “based on" a
subsequently-lowered range whenever the "sentencing range in question was a relevant part of the
analytic framework the judge used to determine the sentence or approve the agreement." Freeman
v. United States, 564 U.S. 522, 529 (201 l).
The standard in Epps was re-emphasized in In re Sealea’ Case, 722 F.3d 361 (D.C. Cir.
20l3), where the D.C. Circuit ruled that a defendant’s 135-month sentence was "based on" his
l5l-l8l-month guideline range because that range played at least some role in the judge’s
sentencing decision. Interestingly, the Circuit came to this decision even though the defendant’s
15l-l8l-month sentencing guideline range would have been supplanted by a 20_-year mandatory
minimum had the government not filed a motion under 18 U.S.C. § 3553(e) for substantial
assistance. 722 F.3d 361, 363 (D.C. Cir. 2013). Regardless of the looming 20-year mandatory
minimum and the fact that the defendant was sentenced below his applicable guideline range, the
Circuit found that the 15 l -1 8 l -inonth range formed "the very basis" of the defendant’s 135-month
sentence. ln re Sealed Case, 722 F.3d at 367.
In his current motion, Duvall argues that under Epps, In re Sealea' Case and the Freeman
plurality opinion, his sentence was "based on" a subsequently-lowered range because that range
played some role in the judge’s decision-making process. Duvall believes that the relevant legal
standard has shifted in such a way that the Court’s previous _December l6, 201 1 ruling is no longer
valid. Under the "broader view" embraced by Epps and Ir_c re Sealea' Case, see In re Sealea' Case,
722 F.3d at 365, Duvall argues that his sentence was "based on" a subsequently-lowered range
because the recently amended 108-135-month range played some role in the Court’s decision to
impose the 168-month sentence contained in the defendant’s plea agreement.
III.
This Court lacks the authority to reduce Duvall’s sentence pursuant to § 3582(c)(2) because
his 168-month sentence was not based on a subsequently-lowered sentencing range. Moreover,
even if Duvall were eligible for a sentence reduction, the "marginal effect the since-rejected
Guideline had on [his] sentence" was so negligible that no reduction would be warranted.
Freeman, 564 U.S. at 53 0. This Court comes to the same conclusion that no reduction in Duvall’s
sentence would be warranted when considering the factors articulated in 18 U.S.C. § 3553(a).
10