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United States v. Washington

October 22, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TERRENCE WASHINGTON, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on Defendant's pro se request for an evidentiary re-sentencing hearing and a further reduction in his sentence (#101). Defendant's pro se request is DENIED.

BACKGROUND

On August 15, 2002, Defendant, Terrence Washington, pled guilty to one count of possession of 500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On February 18, 2003, a sentencing hearing was held. This court found that Defendant was responsible for 3.56 kilograms of crack cocaine, 69.97 kilograms of powder cocaine and 22.68 kilograms of marijuana. Based upon a total offense level of 38 and a criminal history category of VI, the guideline sentencing range was 360 months to life. However, because the statutory maximum penalty was 40 years, the sentencing range was 360 to 480 months. This court sentenced Defendant to a term of 420 months in the Federal Bureau of Prisons, the exact middle of the applicable guideline sentencing range.

Defendant appealed, and the Seventh Circuit affirmed on July 30, 2003. United States v. Washington, 70 Fed. Appx. 897 (2003). On January 17, 2006, Defendant filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 in Case No. 06-2007. On March 9, 2006, this court entered an Order which denied the Motion based upon a finding that the Motion was untimely.

On March 10, 2008, Defendant filed a pro se Motion to Reduce Sentence (#83) based on the retroactive amendment to the sentencing guideline range regarding crack cocaine sentencing. On March 10, 2008, this court entered a text order and appointed the Federal Defender for the Central District of Illinois to represent Defendant. On April 4, 2008, Defendant filed a pro se Motion to Appoint Counsel (#84). On July 7, 2008, Defendant filed a letter in support of his pro se Motion to Reduce Sentence (#85). Defendant argued that he should be resentenced based upon United States v. Booker, 543 U.S. 220 (2005) and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558 (2007).

On July 7, 2008, Defendant's appointed counsel filed an Amended Motion to Reduce Sentence (#87). Defendant's counsel thoroughly detailed the facts of Defendant's case. Defendant's counsel also set out the applicable retroactive amendments to the United States Sentencing Guidelines. Defendant's counsel concluded that, based upon the retroactive amendments, Defendant's offense level was reduced to an offense level of 36, making his amended applicable guideline range 324 to 405 months. Defendant's counsel further stated that a sentence reduction to the exact middle of the amended guideline range would result in a sentence of 364.5 months of imprisonment. Defendant's counsel noted that "Defendant has filed other pro se motions and letters with the Court regarding additional reductions in sentence not addressed in this amended motion." Defendant's counsel asked this court to enter an Amended Judgment sentencing Defendant to 364.5 months of imprisonment. On September 11, 2008, the Government filed its Response (#98) and stated that it had no objection to this court reducing Defendant's sentence to a term of 364 months of imprisonment. On September 16, 2008, this court entered an Order (#99) which granted Defendant's Amended Motion and reduced Defendant's term of imprisonment to 364 months.

However, in the meantime, on August 6, 2008, Defendant filed a Motion to Waive Counsel and Proceed Pro-Se regarding his Motion to Reduce Sentence (#92). Defendant stated that he wanted to file a pro se brief in this cause. On September 16, 2008, this court entered an Order (#100) which found Defendant's Motion to Appoint Counsel (#84) MOOT and which GRANTED Defendant's pro se Motion to Waive Counsel and Proceed Pro Se (#92). This court stated that Defendant's appointed counsel was withdrawn as Defendant's attorney and that Defendant was allowed to proceed pro se. This court gave Defendant 30 days to file his brief and explain why he is entitled to a further reduction in his sentence.

On October 17, 2008, Defendant filed 38 pages of argument regarding why this court should conduct an evidentiary resentencing hearing and further reduce his sentence (#101). Defendant attached, as exhibits, certificates showing that he had successfully completed educational programs at the Federal Bureau of Prisons. One of the certificates stated that Defendant had completed 240 hours of training in masonry. Defendant also sent a letter (#102) to this court thanking the court for giving him the opportunity to file a brief and for the chance to be heard. Defendant stated that he has made constructive use of his time in the Federal Bureau of Prisons to aid in his successful re-entry into society as a positive productive citizen. Defendant also stated that he has obtained his G.E.D. and has paid his fine in full. Defendant again asked this court to further reduce his sentence so that he could "create a better future for myself and my children."

ANALYSIS

The general rule is that a court may not modify a term of imprisonment once it has been imposed. 18 U.S.C. § 3582(c). The exceptions to this rule are very limited, and the only exception which applies in this case is § 3582(c)(2) which provides that:

[I]n the case 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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

In this case, the "applicable policy statement[] issued by the Sentencing Commission" is the amended version of United States Sentencing Guideline (U.S.S.G.) ...


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