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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

) 

UNITED STATES OF AMERICA ) 

) Criminal No. 93-365 (RCL) 

v. ) 

) 

DARRICK COOK ) 

also known as ) 

DERRICK COOK ) 

 ) 

 Defendant. ) 

____________________________________) 

MEMORANDUM OPINION

Defendant Derrick Cook, acting pro se, filed a motion to reduce his sentence pursuant to 

18 U.S.C. § 3582(c)(2). Def.’s Mot. Reduce 1, Feb. 12, 2012, ECF No. 100. The Federal Public 

Defender’s office subsequently filed a Supplemental Motion to Reduce Sentence on defendant’s 

behalf. Def.’s Supp. Mot. Reduce 1, Jul. 3, 2012, ECF No. 101. Upon consideration of Mr. 

Cook’s Motion [100], the Supplemental Motion [101] filed on his behalf, the government’s 

Opposition [103], the defendant’s Reply [104], the entire record herein, the applicable law, and 

for the reasons set forth below, the Court will deny the motion. 

I. BACKGROUND 

On September 7, 1993, defendant was arrested carrying 114.51 grams cocaine base 

(“crack”). Presentence Investigation Report Revised ¶ 6, May 5, 1994 (“PSR”). He was indicted 

on October 7, 1993, for possession with intent to distribute 50 grams or more of cocaine base 

(“crack”) in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(iii). On January 12, 1994, 

before trial, the United States filed an information giving notice of the defendant’s prior drug 

conviction, in accordance with 21 U.S.C. § 851. Information 1, Jan. 12, 1994, ECF No. 22. On 

February 28, 1994, a jury found the defendant guilty as charged. Based on his offense level—
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32—and his criminal history category—II—his guideline range was calculated at 135 to 168 

months. PSR ¶ 38. However, because the statutory mandatory minimum was higher than the 

guideline range, defendant was sentenced to the mandatory minimum—240 months 

incarceration. Defendant now seeks a reduction of his sentence under 18 U.S.C. § 3582(c)(2). 

II. LAW 

 Under 18 U.S.C. § 3582(c)(2), the Court is allowed to modify a sentence when a 

defendant was sentenced “based on a sentencing range that has subsequently been lowered by the 

Sentencing Commission . . . if such a reduction is consistent with the applicable policy 

statements issued by the Commission.” The crack guidelines have been reduced a number of 

times, most recently in response to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-

220, 124 Stat. 2372, which took effect on August 3, 2010. The pre-FSA crack sentencing 

guidelines were greatly criticized for their disproportionately harsh treatment of crack versus 

powder cocaine possession and distribution. See, e.g., Dorsey v. United States, 132 S. Ct. 2321, 

2328–29 (2012). Under the pre-FSA guidelines, there was a 100-to-1 disparity in the amount of 

crack cocaine necessary to trigger strict mandatory-minimum sentences. Id. The FSA lowered 

that disparity to 18-to-1. Id. at 2329. The United States Sentencing Commission (“USSC”) 

promulgated Emergency Amendment 748, which became effective on November 1, 2010, and 

lowered the guidelines ranges for crack offenses. U.S. Sentencing Guidelines Manual (USSG) 

App. C. Vol. III. Amendment 750, which made the new lower sentencing ranges established by 

Amendment 748 permanent, took effect on November 1, 2011. Id. The most recent USSG 

policy statement made Amendment 750 retroactive. USSG § 1B1.10. However, “where a 

defendant is sentenced to a statutory mandatory minimum sentence, relief under section 

3582(c)(2) is unavailable because the sentence is no longer ‘based on’ a sentencing range.” 
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United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010). 

III. ANALYSIS 

Defendant, here, was found guilty of possession with intent to distribute at least 50 grams 

of crack. This was at least defendant’s second felony drug conviction and, therefore, the 

mandatory minimum sentence at the time was no less than 20 years—240 months— 

imprisonment. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) (1994). Judge Harris imposed that 

mandatory minimum sentence on the defendant on July 5, 1994. Because the defendant was not 

sentenced pursuant to a guideline sentencing range that has been subsequently lowered but 

received the statutory mandatory minimum sentence, his sentence cannot be reduced under § 

3582(c)(2). See Cook, 594 F.3d at 886.

The only remaining question is whether the FSA’s new lower mandatory minimums are 

themselves retroactive, which would allow the Court to re-open the defendant’s sentencing and 

impose a lower sentence. In Dorsey, the Supreme Court determined that the FSA applies 

retroactively only to those defendants convicted of crack offenses before the enactment of the 

FSA but sentenced after the FSA took effect—August 3, 2010. 132 S. Ct. at 2335. The Court is 

now asked to extend Dorsey to defendants who were convicted and sentenced pre-FSA. 

Defendant makes a strong argument that the reasoning used by the Supreme Court in 

Dorsey is applicable to his case. Supp. Mot. Reduce Sent. 5–12, ECF No. 101. However, the 

Supreme Court has already foreclosed such extended application of its reasoning by noting that 

its decision would “create a new set of disparities. But those disparities, reflecting a linedrawing effort, will exist whenever Congress enacts a new law changing sentences (unless 

Congress intends re-opening sentencing proceedings concluded prior to a new law’s effective 

date).” Dorsey, 132 S. Ct. at 2335. Moreover, the D.C. Circuit has made clear that the FSA does 
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not apply retroactively to defendants convicted and sentenced before its enactment. See United 

States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir. 2012). Because “district judges . . . are 

obliged to follow controlling circuit precedent until either [the D.C. Circuit], sitting en banc, or 

the Supreme Court, overrule it,” this Court has no authority to hold that the FSA applies 

retroactively. United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997). 

IV. CONCLUSION 

For the foregoing reasons, the Court holds that the defendant’s Motion to Reduce 

Sentence [100] must be denied. A separate Order consistent with this Memorandum Opinion 

shall issue this date. 

Signed by Royce C. Lamberth, Chief Judge, on November 30, 2012.