United States v. Seldon

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 06-CR-318 (ESH)
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RICARDO SELDON, )
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Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Before the Court is defendant Ricardo Seldon’s motion to reduce his sentence of
imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that a district
court may “reduce the term of imprisonment” 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. § 994(o).” 18 U.S.C. § 3582(c)(2); see U.S.S.G.
§ 1B1.10(a)(1). Defendant’s motion is based on Amendment 750 to the Sentencing Guidelines,
which lowered the offense levels for crack cocaine offenses, see U.S.S.G. App. C, amend 750
(Nov. 2011), and which applies retroactively. See U.S.S.G. § 1B1.10(c).
Defendant, who was conviction of unlawful possession with intent to distribute 5 grams
or more of cocaine base, was initially sentenced to a term of imprisonment of 94 months, based
on a guidelines range of 78 to 97 months (offense level 27), with 60 months (the statutory
mandatory minimum) to be served consecutively to his sentence in another case, Criminal No.
05-0260. (Judgment in a Criminal Case, June 28, 2007 [ECF No. 31].) Thereafter, the
Sentencing Commission adopted Amendment 706, its first revision to the crack cocaine offense
levels. See U.S.S.G. App. C, amend. 706 (Nov. 2007). Amendment 706, which also applied
retroactively, reduced defendant’s sentencing range to 63 to 78 months (offense level 25). Based
on this lowered sentencing range, defendant filed a § 3582 motion to reduce his sentence.
Defendant sought both a reduction in his total term of imprisonment and a reduction in the
amount to be served consecutively to his sentence in Criminal No. 05-0260. The Court granted
the motion in part by reducing his sentence to 75 months, but did not alter the 60 months that had
to be served consecutively to the other sentence. (Order Regarding Mot. for Sentence Reduction
Pursuant to 18 U.S.C. § 3582(c)(2), Feb. 24, 2010 [ECF No. 38].)
Defendant’s sentencing range was again lowered by Amendment 750, so that if he were
sentenced today his sentencing range would be 51 to 63 months (offense level 23). Defendant
seeks a sentence of time served, which would fall within the new range but would be less than
the 60 month statutory mandatory minimum. Defendant argues that he is entitled to the benefit of
this further reduction, despite the statutory mandatory minimum that applied at the time he was
sentenced, because of the Fair Sentencing Act of 2010 (“FSA”), which took effect on August 3,
2010. The FSA increased the amount of crack cocaine necessary to support a 60 month
mandatory minimum sentence, so that if defendant were sentenced today he would not be subject
to a statutory mandatory minimum sentence. The Supreme Court has held that the FSA’s
reduced penalties apply retroactively to all defendants sentenced on or after August 3, 2010.
Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012). Defendant argues that “it follows directly
from the Supreme Court’s analysis that the FSA’s more lenient penalties also apply to defendants
who seek sentence reductions pursuant to the retroactive FSA guideline amendments.” (Def.’s
Mot. at 3.) The government does not oppose a reduction to 60 months, but opposes any further
reduction on the on the ground that the FSA does not apply retroactively to defendants seeking §
3582(c) sentence reductions who were originally sentenced before August 3, 2010.
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In a recent decision, the Court of Appeals for the D.C. Circuit held that the FSA does not
apply to defendants who were sentenced before August 3, 2010, even when the case is still on
direct appeal. See United States v. Fields, No. 09-3137, __ F.3d __, 2012 WL 5457682, at *3-4
(D.C. Cir. Nov. 9, 2012); see also United States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir.
2012). The decision in Fields is a clear rejection of defendant’s argument and controlling
precedent for this Court. Accordingly, defendant’s sentence can be reduced to 60 months, but no
more.
For the reasons stated, the Court will grant defendant’s motion to reduce his sentence to
60 months, but will deny any further reduction. A separate Order accompanies this
Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 3, 2012
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