UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) UNI TED STATES OF AMERI CA, ) ) v. ) Criminal No. 07-0084 (PL F) ) J UAN STEWART, ) ) Def endant. ) ____________________________________)

MEMORANDUM OPI

NI ON AND ORDER On J anuar

y 11, 2008, defe ndant J uan Stewar t was sentenc ed to a f

ive-year term of imprisonment after he pled guilty to a cha rg e of Unlawful Possession with the Intent to Distribute Crack Coc aine in violation of 21 U.S.C. §§ 841(a)( 1) and 841( b)(1) (B )(iii). As par t of his plea ag ree ment, Mr. Stewar

t ag ree d that he would be he ld acc ountable for 29.6 g rams of c ocaine base. Under 21 U.S.C. § 841(b)(1)( B) (iii), a five -year term of imprisonment was the minimum sentenc e that could be imposed on a def endant in Mr. Stewa

rt’s position. See 21 U.S.C. § 841(b)( 1)(B )(iii) (2008) . In other wor ds, it was a mandatory sentenc e below which the Court had no discre tion to go.

On J une 9, 2009, the Court announc ed in a c riminal case unrelated to this one that it would from that point forwar d sentenc e def endants c onvicted of c rac k coca ine offe nses using the SentencingGuidelines for mulated for pow der c ocaine offe nses. See United States v. L ewis, 623 F. Supp. 2d 42, 47 (D.D .C. 2009). This chang e in sentenc ing pr actice meant that some c rac k

coca ine offe nders would r ece ive substantially lower se ntence s than would otherwise be the c ase. See, e.g ., id. at 43, 48 (notingthat, under the Guidelines for cra ck off enses, Mr. L ewis wouldhave a

Guidelines sentenc ing r ang e of 151 to 188 months, wher eas unde r the Guide lines for powder coca ine offe nses, his rec ommended sente nce w ould be 46 to 57 months). On J uly 15, 2009, shortly

afte r the Court’s a

nnounceme nt in L ewis, Mr. Stewa rt filed a motion for a

reduc ed sente nce unde r 18 U.S.C. § 3742, askingthat the Court rese ntence him using the Guide lines for powde r coc aine. B efor e the Court could r ule on that motion, Mr. Stewart submitted another filing, this time askingthat his moti on for a reduc ed sente nce be stay ed while Cong ress c onsidered pa ssing leg islation that would reduce sentenc es for cra ck offe nses to make them more compar able to sente nces imposed f or powde r coc aine of

fense s. The Court acc ording ly

stay ed Mr. Stewa

rt’s motion. On August 3, 2010, President Obama signed into law the Fa ir SentencingAct (“ FSA”) , which re duced, but did not eliminate, the dispar ities betwee n sentenc es imposed for c rac k coca ine and powde r coc aine of fense s. See Pub. L . No. 111-220, 124 Stat. 2372. Since the F SA marked the culmination of the attempts by Congr ess to addre ss those sentencingdisparities, the Court now will lift the stay on Mr. Stewar

t’s motion and addre ss its m erits.

Mr. Stewar

t’s sentenc e ca

nnot be re duced. F irst, the Court is not authoriz ed by 18 U.S.C. § 3742 or by

any other statute to re sentenc e a de fenda nt to give him the be nefit of a chang e in the Court’s sente ncingprac tices that occ urre d afte r the de fenda nt’s conviction and orig inal sentenc e bec ame f inal. See Dillon v. United States, 130 S. Ct. 2683, 2687 (2010) (“A fede ral c ourt g ener ally

‘may not modify

a ter m of imprisonment once it has bee n imposed.’” (citing18 U.S.C. § 3582(c))) ; United States v. Doug las, 746 F. Supp. 2d 220, 224 & n.20 (D. Me. 2010) (the F SA does not aff ect c riminal sentence s that beca me final be fore the FSA’ s eff ective da te). Sec ond, the term of imprisonment to which Mr. Stewa rt was se ntence d was then

-2-and re mains now, eve n afte r the pa ssag e of the FSA, the manda tory minimumsentenc e per

mitted by statute. See 21 U.S.C. § 841(b)( 1)(B )(iii) (2011) (re quiringdefe ndants convicte d of an offe nse involving more than 28 g rams of c rac k coca ine to serve at least five y ear s in prison). Acc ording ly , it is hereby

ORDERED that the stay

imposed on these proc eeding s is L I FTED ; and it is FURTHE R ORDERED that [22] Mr. Stewar t’s Motion to R educe Sentence Pursuant to 18 U.S.C. § 3742 i s DENI ED.

SO ORDERED.

/s/___________________________ PAULL . FRI EDMAN United States District J udg e DATE: June 28, 2011

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