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Moore v. United States

February 25, 2010

SHERMAN MOORE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court is a pro se motion to reduce a sentence filed by Sherman Moore ("Petitioner") pursuant to 18 U.S.C. § 3582(c)(2). For the reasons set forth below, this motion is DENIED.

BACKGROUND

Petitioner Sherman Moore ("Petitioner") was one of thirty nine members of the Gangster Disciples Street Gang ("GDs") who were indicted on August 30, 1995. On December 13, 1995, Petitioner was charged along with nine others in a 41-count superseding indictment for participating in a drug conspiracy in violation of 21 U.S.C. § 846 (Count 1); operating a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(a) (Count 2); using minors to further the drug conspiracy and to avoid detection and apprehension in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2) (Counts 3 and 4); and being responsible for various possessions and distributions of narcotics in violation of 21 U.S.C. § 841(a) (Counts 5-8, 10, 11, 13-17, 28, 38, 39), among other charges.

On March 6, 1996, a jury found Petitioner guilty on Counts 1, 2, 3, 4, 5, 6 and 7. At sentencing, the district court, upon government's motion, dismissed Count 1 (the lesser included offense of conspiracy) and proceeded to sentencing on Count 2 (the CCE charge). As a "governor" of the GDs, Petitioner was considered a "principal administrator, organizer, or leader" of a CCE to commit crimes involving more than 1.5 kilograms of cocaine base; he was therefore subject to a statutory minimum of life imprisonment under21 U.S.C. § 848(b). The district court sentenced the defendant to life imprisonment on Counts 2, 3, 4, 5 and 6, and to twenty years on Count 7 to run concurrently with counts 2, 3, 4, 5 and 6.

On August 17, 2000, the Seventh Circuit affirmed Petitioner's convictions and sentence in United States v. Smith, 223 F.3d 554 (7th Cir. 2000), cert. denied, 536 U.S. 957 (2002). Petitioner filed a § 2255 Petition on June 2, 2003, which was denied by the district court on January 6, 2004. On April 28, 2004, the district court issued a certificate of appealability on the issue of whether Petitioner's counsel was constitutionally ineffective in failing to object to the admission of wiretap evidence at trial. On September 28, 2004, the Seventh Circuit granted Petitioner's motion to expand the certificate of appealability, but nevertheless affirmed the conviction and denied defendant's ineffective assistance of counsel claim.

LEGAL STANDARD

Once a defendant's sentence has been imposed, a court has limited authority to change it after the expiration of the limits set forth in Fed. R. Crim. P. 35. See United States v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004). Section 3582(c)(2) permits the Court to reduce a previously imposed sentence only when the defendant "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)." In addition, eligibility for a reduction under § 3582(c)(2) is triggered only by amendments designated for retroactive application in U.S.S.G. § 1B1.10(c).

U.S.S.G. § 1B1.10 cmt. n. 1. In November 2007, the Sentencing Commission passed Amendment 706, which generally reduced by two levels the offense levels applicable to crack cocaine offenses. Effective March 3, 2008, Amendment 706 (as amended by Amendment 711) was added to the list of retroactively applicable amendments in § 1B1.10(c).

When reducing a sentence, a court must consider the factors set forth in 18 U.S.C. § 3553(a) and must ensure that any reduction "is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The guidelines further state that "[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2). To determine whether a defendant's applicable guideline range is lowered, "the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." U.S.S.G. § 1B1.10(b)(1).

ANALYSIS

A petitioner is only eligible for a sentence reduction under § 3582 if retroactively applied amendments have lowered the guideline range under which the defendant was previously sentenced. See United States v. Armstrong, 347 F.3d 905, 908 (11th Cir.2003) (upholding denial of § 3582(c)(2) motion where retroactive amendment did not affect the defendant's ultimate sentence); United States v. Hickey, 280 F.3d 65, 69 (1st Cir. 2002) (reversing grant of § 3582(c)(2) reduction where amendment affected a specific offense characteristic but defendant was sentenced on an unrelated ground, as a career offender); United States v. Young, 247 F.3d 1247, 1252-53 (D.C.Cir.2001) (finding § 3582(c)(2) reduction unwarranted where amendment did not actually affect the defendant's range); United States v. Gonzalez-Balderas, 105 F.3d 981, 983-84 (5th Cir.1997) (affirming denial of § 3582(c)(2) motion where retroactive amendment did not actually reduce the defendant's imprisonment range); United States v. Townsend, 98 F.3d 510, 513 (9th Cir.1996) ("Because Amendment 506 has no effect on Townsend's sentencing range, the district court properly denied his motion for a reduced sentence under § 3582(c)(2)."); United States v. Dorrough, 84 F.3d 1309, 1312 (10th Cir.1996) (affirming denial of § 3582(c)(2) motion where, under an alternate calculation, the defendant had the "same offense level under the new guidelines as he had under the old").

Petitioner's guideline range has not been lowered by Amendments 706 or 711, which altered the base offense levels associated with crack cocaine in U.S.S.G. § 2D1.1(c). The amendments raised the threshold for the maximum initial offense level of 38 from 1.5 to 4.5 kilograms, thus "affect[ing] only defendants who are responsible for distributing fewer than 4.5 kilograms of crack cocaine." United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009).

The sentencing judge ruled that Petitioner was accountable for the sale of at least 1.9 kilograms of crack cocaine per every 2 months of his tenure as the GD's governor (as opposed to a fixed quantity of 1.9 kilograms as Petitioner suggests). At this rate, amounts far in excess of the threshold 4.5 kilograms would have been sold throughout Petitioner's 10-month to year-long governorship, resulting in a base offense level of 38 even under the amended guidelines.*fn1 Level 38 was the same starting point used by the sentencing judge before he applied level enhancements for CCE involvement and possession of firearms to arrive at a base level of 44. The amended guideline range for level 44 (or 43 when reduced to coincide with the sentencing ...


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