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

_________________________________________ ) UNI TED STATES OF AMERI CA ) ) v. ) Criminal No. 06-0152 (PL F) ) SHANE WOODEN, ) ) Def endant. ) __________________________________________)

MEMORANDUM OPI

NI ON AND ORDER This matter is befor e the Court on the motion of the de fenda nt, Shane Wooden, to reduc e his sentenc e under 18 U.S.C. § 3582(c)(2) . Am. Mot. at 1. Mr. Wooden’s motion will 1 be g rante d in part and de nied in part. Althoug h Amendment 750 to the United States Sentenc ing Guidelines lower s Mr. Wooden’s g uideline sentenc ing r ang e, the F air Sentenc ing A ct of 2010 (“F SA”) e nacte d by

Congr ess does not apply retroa ctively

to defe ndants like Mr. Wooden who

wer e both convicte d and sente nced be fore its enactment. Mr. Wooden’s se ntence , there fore , cannot be reduc ed below the mandatory minimum sentenc e of 120 months in eff ect at the time of his sentencing

.

The pa

pers r eviewe d in connec tion with the pending motion include: the 1 defe ndant’s motion for re duction of sentenc e (“ Mot.”) [Dkt. No. 62]; the def endant’ s amende d motion for reduc tion of sentence (“A m. Mot.”) [Dkt. No. 63] ; the g overnme nt’s response (“G ovt.’s Resp.”) [Dkt. No. 66]; t he def endant’ s reply

[Dkt. No. 67] ; the defe ndant’s supplement to his reply

(“D ef.’ s Supp.”) [Dkt. No. 68] ; the g overnme nt’s sur-re ply to defe ndant’s supplement [Dkt. No. 69] ; the defe ndant’s re sponse to the g overnme nt’s sur-re ply [Dkt. No. 70] ; the plea a g ree ment (“Plea ”) [Dkt. No. 49]; t he pre sentenc e investig ation repor t (“PSR”) [Dkt. No. 52]; t he Judgment and Commitment (“Judgment”) [Dkt. No. 58] ; and the Probation Off ice memorandum of F ebrua

ry 28, 2012 (“Proba

tion Mem.”) [Dkt. No. 65].I . BA CKGROUND Shane Wooden pled guilty on October

31, 2008 to one count of posse ssion with the intent to distribute 50 gr ams or more of coc aine ba se or c rac k, in violation of 21 U.S.C. § 841(a) (1) a

nd (b)( 1)(A) (iii), and one c ount of possession of a f irea rm by a per son previously convicted of

a crime punishable by

imprisonment for a ter

m exceedingone y ear , in violation of 18 U.S.C. § 922(g) . At the time of his plea, he acknow ledg ed that he w as ac countable f or 81 g rams of c rac k coca ine. Plea at 2. On F ebrua ry 25, 2009, the Court sentenc ed Mr. Wooden to 127 months’ imprisonment on the crac k conviction and 120 months’ imprisonment on the gun char g e, the se ntence s to run concur rently . J udg ment at 3. Under Section 841(b)( 1)(A) , Mr. Wooden was subject to a ma ndatory minimum sentenc e of 120 months on the cr ack c onviction. See 21 U.S.C. § 841(b)(1) (A). H is guide line sentenc ing r ang e other wise would have been 108 to 135 months, P robation Mem. at 1; Govt.’s Resp. at 4, but the bottom of the rang e wa s trumped by the statutory

mandatory

minimum . See Dor sey

v. United States, 132 S. Ct. 2321, 2327 (2012) (“L ike other se ntencingstatutes, [t he 1986 Dr ug Act] trumps the Guidelines . . . . [N] o matter what ra ng e the Guide lines set forth, a se ntencingjudge must sentence a n offe nder to at least the minimum prison term set for th in a statutory

mandatory

minimum .”). Cong ress subseque ntly

enac ted the F air Sentenc ing A ct, ef fec tive August 3, 2010, which incre ased the drugamounts that trig g ere d the mandator

y minimum s for c rac k traff icking offe nses. See Dor sey v. United States, 132 S. Ct . at 2329.

Mr. Wooden has filed a

motion to reduce his sente nce unde r 18 U.S.C. § 3582(c) (2). See Mot.; Am. Mot. He contends that the F SA is retroac tive and that he the ref ore is subject to the benef

it of the new, lowe r mandatory minimum established by the FSA of

five

2y ear s in prison. I d. at 3. He a lso claims that, beca use he posse ssed 81 g rams of c rac k coca ine, Amendment 750 to the Sentenc ing Guidelines, promulg ated pur suant to the FSA, lowe red his g uideline sentenc ing r ang e to 70 to 87 months. I d. at 2-3. He there fore maintains that he is elig ible for a

sentenc e re duction under Sec tion 3582(c)( 2). While the g overnme nt acc epts Mr. Wooden’s argument with respec t to the retroa ctivity of the Guide lines and there fore does not oppose re ducingMr. Wooden’s sentenc e fr om 127 months t o 120 months, it argues that the FSA’s ne w, lower

mandatory

minimum s cannot be applied to a de fenda nt like Mr. Wooden who was both convic ted and se ntence d befor e ena ctment of the F SA. Govt.’s Resp. at 1.

I I . DI SCUS SI ON A. Retroactivity of the FSA Mr. Wooden argues that the F air Sentenc ing A ct, which incr ease d the amount of

cra ck coc aine ne cessa

ry to trigg er ma

ndatory minimum sentenc es, applies r etroa ctively to persons who, like him, we re se ntence d befor e the e ffe ctive date of the Ac t. Am. Mot. at 3. The FSA wa s passed in 2010, and Mr . Wooden was sentenc ed in Fe bruar y 2009. I d at 1. Mr. Wooden cannot pr evail on this argument.

The D.C. Circuit has rule d that the FSA doe s not apply retroa ctively

to a defe ndant whose c onviction and orig inal sentenc e bec ame f inal befor e the F SA was passe d. United States v. Big esby , 685 F.3d 1060, 1066 ( D.C. Cir. 2012) (holding that the def endant “[could not] benef

it from the FSA be cause it was ena cted e ight months afte r her J anuar y 2010 sentenc ing, a

nd it is notretroa ctive”) ; see a lso United States v. Fields, 699 F .3d 520, 522 (D.C. Cir. 2012) (F SA inapplicable to off ender s sentence d befor e passa g e of the statute). I n concluding

3that the FSA doe s not apply to defe ndants sentenc ed bef ore its ena ctment, the D.C. Circuit alig ned itself with the cle ar w eig ht of authority . See United States v. B ige sby , 685 F.3d at 1066; United States v. Ba

ptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (per curia m) (citingdecisions from

ever y circ uit ex cept D.C. Circuit and F eder al Circuit holding that F SA did not apply to defe ndants sentenc ed prior to August 3, 2010).

Mr. Wooden relies on the Supre me Court’s re cent de cision in Dorsey v. United States, 132 S. Ct . 2321 (2012), to ar g ue that the F SA is fully retroa ctive and a

pplies even to persons sente nced before the Act’ s eff ective date. See De f.’s Supp. at 3, 8. Unfor tunately for Mr. Wooden, Dorsey ’s holding is too nar row to provide him any

relief . The Supreme Court in Dorsey held only that the new, mor e lenient mandatory minimum provisions of the FSA a pply to offe nders who c ommitt ed a c rac k coca ine offe nse bef ore Aug ust 10, 2010 but were se ntence d afte r August 10. Dorsey

v. United States, 132 S. Ct. at 2326, 2331, 2335. I t said nothing a bout those who off

ended be fore the ena ctment of the F SA and wer e also sente nced be fore its effe ctive date. While it is t rue that the FSA could potentially have a pplied to “those who have not y et offe nded; offe nders not y et convicte d; offende rs convicte d but not y et sentenc ed; [and] offender s alre ady sentenc ed,” United States v. Doug las, 746 F. Supp. 2d, 220, 221 (D. Me . 2010), af f’d, 644 F.3d 39 ( 1st Cir. 2011), “g ener al re fer ence s to ‘retroa ctivity ’ ar e not helpful. The re a re various possible deg ree s of ‘re troac tivity [.] ’” I d. at 221 n.2. And the Supre me Court alre ady has explained the deg ree to which the F SA is retroac tive.

Whil e holding in Dorsey

that the FSA’ s mandatory minimum s would apply

to offe nders se ntence d afte r its enac tment, the Supreme Court sug g ested a distinction between such offe nders a

nd those like Mr. Wooden who we re se ntence d ear lier, noting that sentenc ing

4disparities will continue to exi st “whene ver Cong ress e nacts a new law chang ing se ntence s ( unless Congress intends re-opening sente ncing proce edings conc luded prior to a new law’s effectivedate ).” D orsey

v. United States, 132 S. Ct. at 2335 (emphasis added) . Thus, whateve r forc e Mr. Wooden’s a

rgument might other

wise have , the Supreme Court’s de cision in Dorsey actua lly confirms [t he] decision in Big esby , for the [S upreme ] Court expressly ackn o wl edged that it was cre ating a disparity “betwe en pre- Act offe nders sentenc ed befor e August 3 and tho s e s en tence d after that date.” 132 S. Ct. at 2335. Although this is d i ct u m , “ca ref ully co n s idere d languag e of the Supreme Court, even if technica lly dictum, g ener ally must be treated as authorit ative.” United States v. Oaka

r, 111 F.3d 146, 153 (D.C. Cir. 1997) (interna l quotation marks omitted). To be sure, the FSA, as i n t erp re ted by Dorsey , produce s a cer tain deg ree of arbitra

riness. Individuals who comm i t t he same offe nse on the same day may rec eive differ ent sentenc es based purely on when they are sentenc ed – a date deter mined by the vag arie s of the judicial sy stem and not anyt h i n g related t o the goals of sentenc ing. But “disparities, ref

lecting a line-dra

wing eff ort, will exis t whene ver Congr ess enac ts a new law chang ing sentenc es.” Dorsey , 132 S. Ct. at 2335. United States v. Fie lds, 699 F.3d at 522.

In sum, as noted, eve ry

circ uit – now including the D .C. Circuit – has concluded that it was not Congr ess’ intent to retr oactively apply the FSA to those off

ender s who wer e both convicted a

nd sentenc ed prior to e nactment of the FSA. See , e.g ., United States v. Fie lds, 699 F.3d at 522; United States v. Big esby , 685 F.3d at 1066; United States v. Baptist, 646 F.3d at 1228-29. Dorse y

did nothing to alter

that conclusion.

5B. Reduc tion to 120 Months’ Imprisonment under Se ction 3582( c) ( 2) In g ener al, “the Court is not authorized . . . to rese ntence a def endant to g ive him the bene fit of a c hang e in the Court’s sente ncingprac tices that occ urre d afte r the de fenda nt’s conviction and or igina l sentence beca me final.” United States v. Stewart, Civ. Action No. 07-0084, 2011 WL2600502, at *1 (D.D .C. J une 28, 2011) ( citing D illon v. United St ates, 130 S. Ct. 2683, 2687 (2010)). 18 U.S.C. § 3582(c) provides “a narr ow exception to [ that] rule of finality .” Dillon v. United States, 130 S. Ct. at 2687; s ee a lso United States v. Armstrong , 347 F.3d 905, 909 ( 11th Cir. 2003). Under that statute, the Court may modifya sente nce when the defe ndant was se ntence d to a term of imprisonment that wa s “base d on” a guideline sentenc ing rang e that subseque ntly

has bee n lowere d. Dillon v. United States, 130 S. C t. at 2687. Be cause the Court based Mr . Wooden’s sentenc e of 127 months on the cr ack c ocaine g uideline ra ng e, which wa s subsequently

lowere d from 108 to 135 months to 70 to 87 m onths, Mr. Wooden is elig ible for a

reduc tion under Section 3582. For the Court to modify

a sente nce pur suant to Section 3582(c) (2), howe ver, not only must the defenda

nt have be en sente nced to a term of imprisonment that was “ ‘base d on a sentenc ing r ang e that has subse quently been lowe red by

the SentencingCommi ssion,’” but “‘such a

reduc tion [ must be] consist ent with’ applica ble Commiss ion policy

statements.” Dillon v. United States, 130 S. C t. at 2687 (quoting18 U.S.C. § 3582(c)(2) ); see a lso United States v. Cook, 594 F.3d 883, 885-86 (D .C. Cir. 2010); United States v. Doe, 564 F .3d 305, 309 (3d Cir. 2009). Unf

ortunately for Mr. Wooden, a lthough the se ntence the Court g ave him wa s “base d on” a guideline sentenc ing r ang e that has subse quently been r educe d, the re duction he

6seeks would not be c onsistent with “applicable Commission poli cy statements.” Dillon v. United States, 130 S. Ct . at 2687 (quotations omitted).

I f the Court we re a

uthorized to disreg ard the applicable statutory mandatory minimum , Mr. Wooden’s guideline sentenc ing r ang e under Amendment 750 would be 70 to 87 months. As discussed above in Part A, how ever , the mandator y minimum sentenc e of 120 months sti ll applies to Mr. Wooden. W here the guideline ra ng e for an off ense is lower

than the statutory mandatory

minimum , the mandator

y minimum statute “re place s the guideline ra ng e and become s the guideline sentenc e.” I n re Sea led Case, - -- F .3d --- -, 2013 WL3305706, at *5 (D.C. Cir. 2013); see U.S. S E N T E N C I N G G U I D E L I N E S M A N U A L § 5G1.1(b) ( “Where a statutorily require d minimum sentenc e is g reater than the maxi mum of the applica ble guideline ra

ng e, the statutorily require d minimum sentenc e shall be the g uideline sentenc e.”) . The Commission has explained that a “r eduction in the def endant’ s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) ” if a

n amendment to the Guide lines “does not have the ef fec t of loweringthe defe ndant’s applica

ble guideline ra

ng e bec ause of

the oper ation of anothe r guideline or statutory provision (e.g ., a statutory mandatory minimum term of imprisonment).” U .S. S E N T E N C I N G G U I D E L I N E S M A N U A L § 1B1.10 c mt. n.1(A)(ii) ( 2012) (e mphasis added) ; see a lso I n re Sea led Case, 2013 WL3305706, at *5 (“ [W ]here a de fenda nt fac ed a ma

ndatory minimum that trumped his origina l guide line rang e, the lowe ringof that ra ng e would have had no ef fec t on the sentenc e

rec eived.” ). Be cause the FSA is not retr oactive to those se ntence d befor e August 1, 2010, the mandatory

minimum sentenc e in ef

fec t before the FSA “ subsume[s] and displace [s] ” Mr. Wooden’s amende d guideline sentenc ing r ang e. United States v. Doe , 564 F.3d at 312. Mr.

7Wooden theref ore is elig ible for a

reduc tion of his sentence from 127 months to 120 months, but not to any reduc tion below that statutory mandatory

minimum . Acc ording ly , it is hereby ORDERED that the def

endant’ s motion [ Dkt. No. 63] for a re duction in his sentenc e is GRANTED in pa rt and de nied in part; it is FURTHE R ORDERED that Mr. Wooden’s sentenc e will be re duced to 120 months; and it i s

FURTHE R ORDERED that the Clerk of Court shall pre pare an Amende d J udg ment for the Court’ s signature.

SO ORDERED.

/s/________________________ PAULL . FRI EDMAN DATE: Jul y

11, 2013 United States District J udg e

8