United States v. Scott ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 05-0414 (PLF)
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MARK SCOTT, )
)
Defendant. )
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MEMORANDUM OPINION AND ORDER
This case is before the Court on defendant Mark Scott’s pro se motion to reduce
his sentence. The government opposes the motion. Upon consideration of the parties’ written
submissions, the relevant case law, and the entire record in the case, the Court will deny the
motion.1
I. BACKGROUND
The defendant pleaded guilty to one count of unlawful possession of a firearm and
ammunition by a prior convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One), and
one count of attempted first degree sexual abuse, in violation of D.C. Code §§ 22-3002 and
22-3018 (Count Two). Plea Agreement ¶ 1. Under the terms of the plea agreement, the parties
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Relevant papers reviewed by the Court with respect to this matter include the
Defendant’s Motion to Reduce Sentence [Dkt. No. 22] (“Mot.”); the Government’s Opposition to
Defendant’s Motion to Reduce Sentence [Dkt. No. 25] (“Opp.”); the Plea Agreement [Dkt. No.
8]; the Presentence Investigation Report (“PSR”); the Government’s Motion for Guidelines
Credit and Memorandum in Aid of Sentencing [Dkt. No. 14] (“Gov. Mem. in Aid of
Sentencing”); Defendant’s Memorandum in Aid of Sentencing [Dkt. No. 16] (“Def. Mem. in Aid
of Sentencing”); and the Judgement and Commitment [Dkt. No. 19](“J&C”).
agreed to let the Court determine the applicable sentence for each count, id. ¶ 8, but the
government recommended that the Court sentence the defendant to 120 months’ imprisonment
on Count One -- the statutory maximum -- and 36 months’ imprisonment on Count Two, with the
terms to be served consecutively. See Gov. Mem. in Aid of Sentencing at 1. The defendant
argued for the same length of imprisonment, but asked the Court to permit him to serve the
sentences concurrently. See Def. Mem. in Aid of Sentencing at 4-5. The Court ultimately
sentenced the defendant to 120 months’ imprisonment on Count One and 78 months’
imprisonment on Count Two, the terms to be served consecutively. J&C at 2.
The defendant now asks the Court to reduce his sentence to match the
government’s recommendation of 120 months on Count One and 36 months on Count Two.
Mot. at 1. The government opposes the defendant’s motion, arguing that the Court has no
authority to modify the defendant’s sentence and that, even if it did, the defendant has not
presented any new information warranting a reduction in his sentence. Opp. at 3-5. The Court
agrees with the government and finds that it lacks the authority to modify the defendant’s
sentence.
II. DISCUSSION
The defendant does not specify the authority under which the Court may consider
his motion. Because “[p]ro se litigants are allowed more latitude than litigants represented by
counsel,” however, the Court will consider the defendant’s request in light of the two methods
through which a district court may modify a previously imposed sentence. Moore v. Agency for
Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); see also United States v. Akers, 519 F. Supp. 2d
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94, 95 (D.D.C. 2007) (“Regardless of how a pro se prisoner styles his motion, a court must
review the motion based on its substance.”). While a district court has authority in some
circumstances to modify a defendant’s sentence under 18 U.S.C. § 3582(c) and under 28 U.S.C.
§ 2255, neither provision applies to this case.
A. 18 U.S.C. § 3582(c)
Section 3582(c) permits a Court to modify a sentence after it has imposed that
sentence in three instances: (1) on the motion of the Bureau of Prisons based on the defendant’s
age or extraordinary circumstances; (2) “to reflect a post-sentence reduction in the applicable
sentencing guidelines”; and (3) to the extent expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure. See United States v. Morris, 116 F.3d 501, 504 (D.C. Cir.
1997) (citing 18 U.S.C. § 3582(c)). As explained below, the Court finds that the defendant does
not satisfy any of these provisions.
First, the Court may modify a sentence on the motion of the Bureau of Prisons
only if “extraordinary and compelling reasons warrant such a reduction” or if the defendant is
over the age of 70, has served at least 30 years in prison, and the Director of the Bureau of
Prisons has determined that he is no longer a danger to the community. 18 U.S.C.
§ 3582(c)(1)(A); see United States v. Morris, 116 F.3d at 504. The Bureau of Prisons has not
made such a motion in this case. In any event, the defendant is not over 70 years of age and does
not suggest that extraordinary circumstances apply to his case. Accordingly, this provision does
not apply to him.
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Second, the Court may modify a defendant’s sentence “to reflect a post-sentence
reduction in the applicable federal sentencing guidelines.” United States v. Morris, 116 F.3d at504 (citing 18 U.S.C. § 3582(c)). Prior to sentencing in this case, the parties debated which
guideline the Court should apply regarding Count One. The defendant argued in favor of
Section 2A3.1, which would have yielded a total offense level of 34, less three levels for
acceptance of responsibility, resulting in an adjusted offense level of 31 -- which in view of the
defendant’s criminal history (Criminal History Category V) -- resulted in a guidelines sentencing
range of 168 to 210 months. See Def. Mem. in Aid of Sentencing at 2. The government argued
that the Court should apply Section 2A4.1, yielding a total offense level of 40, less three levels
for acceptance of responsibility for an adjusted offense level of 37 with an associated sentencing
range of 324 to 405 months. See Gov. Mem. in Aid of Sentencing at 4; PSR ¶¶ 29, 89. The
Court agreed with the government, but because both calculations exceeded the statutory
maximum for a conviction under 18 U.S.C. § 922(g)(1), the Court ultimately imposed the
statutory maximum term of 120 months. See J&C at 2; U.S.S.G. § 5G1.1(a) (“Where the
statutorily authorized maximum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the guideline sentence.”). The
question of which guideline applies to the defendant therefore is irrelevant.2
On Count Two, which the parties agreed qualified as a Class 6 felony under the
District of Columbia Voluntary Sentencing Guidelines, see Def. Mem. in Aid of Sentencing at 3,
Gov. Mem. in Aid of Sentencing at 5, PSR ¶ 93, the Court adhered to the District of Columbia
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Furthermore, the United States Sentencing Commission has not lowered the
guidelines sentencing range applicable to either U.S.S.G. § 2A3.1 or U.S.S.G. § 2A4.1; as such,
neither falls under the purview of Section 3582(c)(2).
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voluntary sentencing range of 36 to 78 months. While it is unclear whether 18 U.S.C.
§ 3582(c)(2) even applies to sentences imposed pursuant to the District of Columbia Code and
not governed by the United States Sentencing Guidelines, the District of Columbia Sentencing
and Criminal Code Revision Commission has not altered the sentencing range applicable to a
Class 6 felony. Accordingly, because none of the sentencing ranges applicable to the defendant
has been lowered, 18 U.S.C. § 3582(c)(2) does not apply to his case.
Finally, the Court may modify a sentence in accordance with Rule 35 of the
Federal Rules of Criminal Procedure. See 18 U.S.C. § 3582(c)(1)(B). Rule 35 permits the Court
to modify a sentence in two circumstances: (1) when, within 14 days of imposing the sentence,
the Court determines that it has made an arithmetic, technical, or other clear error in calculating
that sentence; and (2) on the government’s motion asking the Court to reduce a defendant’s
sentence based on the defendant providing “substantial assistance” to the government. FED . R.
CRIM . P. 35(a)-(b). The defendant does not argue that the Court erred in calculating his sentence
and, regardless, more than 14 days have elapsed since the sentence was imposed. Similarly, the
defendant does not suggest that he has provided any assistance to the government, and the
government has not moved for a reduction of the defendant’s sentence on this basis. See In Re
Sealed Case No. 97-3112, 181 F.3d 128, 136 (D.C. Cir. 1999) (“[A] court may depart for
substantial assistance only upon the filing of an appropriate motion by the government.”).
Rule 35 thus is of no help to the defendant.
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B. 28 U.S.C. § 2255
The Court also declines to recharacterize the defendant’s motion as an application
for relief under 28 U.S.C. § 2255. The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in various sections of Title 28
of the United States Code), bars a litigant from filing a “second or successive” Section 2255
motion “absent exceptional circumstances and certification by” the court of appeals. See United
States v. Palmer, 296 F.3d 1135, 1144-45 (D.C. Cir. 2002); see 28 U.S.C. § 2255(h). The
Supreme Court therefore has held that a district court cannot recharacterize a pro se litigant’s
motion as a “first” Section 2255 motion unless the court
notif[ies] the pro se litigant that it intends to recharacterize the pleading, warn[s]
the litigant that this recharacterization means that any subsequent § 2255 motion
will be subject to the restrictions on ‘second or successive’ motions, and
provide[s] the litigant an opportunity to withdraw the motion or to amend it so
that it contains all the § 2255 claims he believes he has.
Castro v. United States, 540 U.S. 375, 383 (2003).
Under the AEDPA, the court of appeals may grant a litigant leave to file a second
or successive Section 2255 motion only if the motion is based on either:
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
In re Fashina, 486 F.3d 1300, 1302 (D.C. Cir. 2007) (quoting 28 U.S.C. § 2255). The defendant
does not allege that any of the provisions of Section 2255 apply to his case: he does not suggest
that the sentence imposed was unconstitutional, that the Court was without jurisdiction to impose
the sentence, or that the sentence was in excess of the maximum authorized by law.
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Furthermore, the defendant does not even seek the full amount of relief contemplated by Section
2255, which is the right to be released from prison. Rather, he only asks the Court to reduce his
sentence by 42 months. In these circumstances, the Court is unwilling to recharacterize his
motion as one brought under Section 2255. Compare Douglas v. United States, 306 F. Supp. 2d
16, 18 (D.D.C. 2004) (refusing to recharacterize a defendant’s pro se motion as one for relief
under 28 U.S.C. § 2255 when the defendant “[did] not invoke that statute” in his letter to the
court and the court was unwilling to foreclose the defendant’s ability to file future Section 2255
claims), with United States v. Akers, 519 F. Supp. 2d 94, 96 (D.D.C. 2007) (recharacterizing a
defendant’s motion as one brought under Section 2255 when it was clear that the defendant was
claiming constitutional error based on an alleged violation of his Sixth Amendment right to
effective assistance of counsel).
III. CONCLUSION
The Court commends the defendant for his rehabilitation efforts while
incarcerated and encourages him to continue his positive steps. The Court declines, however, to
modify the defendant’s sentence because it does not have authority to do so: none of the
situations included under 18 U.S.C. § 3582(c) apply to this case, and recharacterizating the
motion as one under 28 U.S.C. § 2255 would be inappropriate in these circumstances.
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Accordingly, for the foregoing reasons, it is hereby
ORDERED that the defendant’s motion to reduce his sentence [22] is DENIED.
SO ORDERED.
/s/_____________________
PAUL L. FRIEDMAN
United States District Judge
DATE: December 23, 2010
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