UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Criminal No. 01-17 (CKK)

MEMORANDUM OPINION (April 29, 2013) Defendant John Q. Wesley was convicted at trial of unlawful possession with intent to distribute 5 grams or more of cocaine base and two firearms offenses. The Defendant was sentenced to a term of 120 months incarceration for the drug offens e. Presently before the Court is the Defendant’s [60] Motion to Reduce Senten ce, seeking to reduce his sentence for the drug offense to time served. The Government opposes the Defendant’s motion. Upon consideration of the pleadings, 1 the relevant legal authorities, and the r ecord as a whole, the Court finds it lacks jurisdiction to reduce the Defe ndant’s sentence below the 120-month mandatory minimum to which the Defendant was initially sentenced. Accordingly, the Defendant’s motion is DENIED. I. BACKGROUND The Defendant was charged by superseding indictment with one count of unlawful possession with intent to distribut e 5 grams or more of cocaine ba se in violation of 21 U.S.C. §§ 841(a)(1) (count one), (b)(1)(B)(iii), one coun t of using or carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c) (count two) , and one count of possession of a firearm by a convicted felon in violation 18 U.S.C. § 922(g) (c ount three). Following a jury

1 Def.’s Mot. to Reduce Se nt., ECF No. [60]; Gov’t’s Corr ected Opp’n, ECF No. [65-1]; Def.’s Reply, ECF No. [66].

UNITED STATES OF AMERICA

v. JOHN Q WESLEY, Defendant.2 trial, the Defendant was found guilty on all three counts. The Presentence Investigation Report (“ PSR”) indicates counts one and three were grouped together in accordance with section 3D1.2( c) of the United States Sentencing Guidelines. PSR ¶ 11. The Defendant was responsible for 6.94 grams of cocaine base, commonly known as crack cocaine, making his base (and adjusted) offense level 26. Id. at ¶¶ 13, 26. With a criminal history category of IV, the Defendant’s applicable guideline range for counts one and three was 92 to 115 months imprisonment. Id. at ¶ 54. Prior to trial, the Government filed an Information of Additiona l Penalty indicating the Defendant had a prior conviction for possession with intent to distribut e cocaine. The Defendant was thus subject to a 120-month mandatory minimum sentence pursua nt to 21 U.S.C. § 841(b)(1)(B) (2001). See id. (“If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years.). On September 4, 2001, the Court sentenced the Defendant to concurrent terms of 120 months incarceration on c ounts one and three, and 60 months imprisonment on count two, to be served consecutively to counts one and three. On November 1, 2007, the United States Se ntencing Commission reduced the offense level generally applicable to cocaine base offenses by two levels, and made the amendment retroactive. U.S.S.G. App. C, amends. 706, 713. The Defendant moved to reduce his sentence pursuant to these amendments. Def.’s Pet. fo r the Reduction of Sent., ECF No. [53]. The 2007 amendments reduced the Defendant’s base of fense level, but did not alter the 120-month mandatory minimum. The Court therefore de nied the Defendant’s motion. 9/29/2009 Order, ECF No. [58]. Enacted in 2010, the Fair Sent encing Act increased the amount of cocaine base necessary3 to trigger various mandatory minimum sent ences. Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). In relevant part, the act increased the amount of cocaine base necessary to trigger the 120-month mandatory minimum for defendants with prior drug convi ctions from 5 grams to 28 grams. FSA § 2(a); see 21 U.S.C. § 841(b)(1)(B)(iii) (2013) . The Sentencing Commission subsequently revised the sentencing guidelines to account for the revised threshold quantities. U.S.S.G. App. C, amend. 750. The Defendant now moves to reduce his se ntence to time served in light of the revised mandatory minimu ms enacted by the Fair Sentencing Act. II. DISCUSSION Section 3582(c) of Title 18 of the United States Code provides that the Court may modify a term of imprisonment once imposed under three circumstances: upon motion by the Director of the Bureau of Prisons; to the extent expressly pe rmitted by statute or Federal Rule of Criminal Procedure 35; or where the applicable sentencing guideline range has been retroactively lowered by the Sentencing Commission. Only the third scen ario is at issue in this case, 18 U.S.C. § 3582(c)(2), which provides: [I]n the case of a defendant who has been sentenced to a te rm of imprisonment based on a sentencing ra nge that has subsequen tly been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment, after considering the factors set forth in secti on 3553(a) to the extent that they are applicable, if such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commission. At the time of his sentencing, the Defendant’s applicable guidelines ra nge was 92 to 115 months, with a mandatory minimum sentence of 120-mont hs. The Defendant argues that the Fair Sentencing Act and related amendment to the se ntencing guidelines lo wered the applicable guideline range to 41 to 51 mont hs, with no mandatory minimum se ntence. Def.’s Mot. at 2. The Defendant thus asks the Court to reduce the Defendant’s sentence to time served. Id. at 2-3.
In United States v. Dorsey , 132 S. Ct. 2321 (2012), the Supreme Court held that the4 revised mandatory minimum penalties set forth in the Fair Sentencing Act applied to defendants who committed offenses prior to August 3, 2010, but were not sentenced until after that date. Id. at 2326. Relying on the Supr eme Court’s reasoning in Dorsey , the Defendant argues that the Fair Sentencing Act provisions should apply to defendants convi cted and sentenced prior to August 3, 2010, but who file a motion under section 3582 (c)(2) after that date . Def.’s Mot. at 8-
12. Noticeably absent from the Defendant’s moti on is any discussion of the D.C. Circuit’s decision in United States v. Bigesby , 685 F.3d 1060 (D.C. Cir. 2012). The Bigesby court held that the Fair Sentencing Act does not apply retro actively to a defendant sentenced eight months before the act went into effect. Id . at 1066. The Defendant attempts to distinguish Bigesby on the grounds it addressed only cases in which defe ndants were sentenced prior to August 3, 2010, but whose appeals were still pending on that date. Def.’s Reply at 2. The Defendant suggests that Bigesby is not dispositive of the question as to whether the Fair Sentencing Act applies to proceedings under 18 U.S.C. § 3582(c)(2). Contrary to the Defendant’s argument, the holding in Biegsby was not limited by the procedural posture of that case. The Bigesby court plainly stated that “[w]e agree with every circui t court to address the issue that there is simply no evidence that Congress intended the [FSA] to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.” 685 F.3d at 1066 (citation omitted) (emphasis added). In other words, the Defendant’s argument coul d only have merit if a motion under 18 U.S.C. § 3582(c)(2) constitutes a ne w sentencing proceeding. The Supreme Court rejected this argument Dillon v. United States , 130 S. Ct. 2683 (2010), holding that “[b]y its terms, § 3582(c)(2) doe s not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving5 courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.” Id . at 2690. “Section 3582(c)(2 )’s text, together with its narrow scope, shows that Congress intended to author ize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Id . at 2691 (emphasis added). The Dorsey court recognized that “in federal sent encing the ordinary practice is to apply new penalties to defendants not yet sentenced, whil e withholding that change from defendants already sentenced. [C]ompare 18 U.S.C. § 3553(a)(4)(A)(ii) with § 3582(c).” 132 S. Ct. at 2335 (citation omitted). A motion to reduce a defendant’s sentence under section 3582(c)(2) doe s not trigger a new sentencing proceeding such that the defendant can be said to have been sentenced after the effective date of the Fair Sentencing Act. United States v. Quattlebaum , --- F. Supp. 2d ---, 2013 WL 1164925, at *3 (D.D.C. Mar. 23, 2013); United States v. Baucum , --- F. Supp. 2d ---, 2012 WL 6185715, at *3 (D.D.C. Dec. 12, 2012); United States v. Seldon , No. 06-318, 2012 WL 6004215, at *1-2 (D.D.C. Dec. 3, 2012); United States v. Sartor , No. 04-455-11, 2012 WL 3095351, at *1 (D.D.C. July 30, 2012); see also United States v. Jiron , No. 96-210, 2012 WL 2384108, at *1 (D.D.C. June 25, 2012). Because the provision of the Fair Sentencing Act reducing the threshold quantity for the 120-mont h mandatory minimum sentence does not apply to motions under section 3582(c)(2), the Court lacks jurisdiction to reduce the Defendant’s sentence below the 120-mont h mandatory minimum. III. CONCLUSION For the foregoing reasons, the Court finds it lacks jurisdiction to reduce the Defendant’s sentence. Although the Defendant’s applicab le guideline range was reduced by the 2010 amendment to the sentencing guidelines, the Fair Sentencing Act, which reduced the threshold quantity for the 120-month mandatory minimum, is not retroactive. Ther efore, the Court cannot6 reduce the Defendant’s sentence below the 120 -month mandatory minimu m. Accordingly, the Defendant’s [60] Motion to Reduce Sentence is DENIED. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE