The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PETITIONER'S POST-SENTENCE MOTION FOR
This matter comes before the court on the pro se petitioner's
motion for relief from the sentence that he currently is serving.
Specifically, he asks the court to grant him a downward departure from
the applicable sentencing guideline range and to disregard the sentence
enhancement triggered by his possession of firearms at the time of the
underlying drug offense. The court denies the petitioner's request for
downward departure because it lacks merit. As for the petitioner's
challenge to the sentence enhancement, the court upholds the enhancement
given that the facts of the underlying criminal case establish that the
petitioner had firearms along with rounds of live ammunition present
during the time of his drug offense. Consequently, the court denies the
On August 30, 2001, the pro se petitioner pled guilty to
possession with intent to distribute a cocaine-base substance, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Thereafter, on
December 10, 2001, the court sentenced the petitioner to 63 months of
imprisonment followed by four years of supervised release. J. &
Commitment Order dated Dec. 11, 2001.
On January 15, 2002, the petitioner filed an incomplete motion to
vacate the sentence pursuant to 28 U.S.C. § 2255. Because of his
failure to state a sufficient basis for relief, the court granted
dismissal without prejudice to allow the petitioner the option of
re-filing his motion with complete information and supporting facts.
Douglas v. United States, 245 F. Supp.2d 46, 49 (D.D.C. 2003).
Rather than filing a corrected section 2255 motion, the petitioner
brought the instant motion requesting a downward departure under
18 U.S.C. § 3582, based on his post-conviction drug-rehabilitation
efforts, and challenging the application of U.S.S.G. § 2D1.1(b)(1)'s
two-level sentencing enhancement for having firearms and ammunition
present during his drug offense. The court now addresses that motion.
A. The Petitioner's Motion Does Not Contemplate Section 2255
At the outset, it is important to note that the court does not consider
the petitioner's instant motion for relief under 28 U.S.C. § 2255
because he does not invoke that statute in challenging the court's
imposed sentence. See Castro v. United States, 124 S.Ct. 786,
792 (2003) (holding that a federal court may not recharacterize a pro
se litigant's motion as a "first" section 2255 motion unless it
provides a proper warning of the preclusive effects that the
recharacterization will have on a future section 2255 motion); United
States v. Palmer, 296 F.3d 1135, 1146 (D.C. Cir. 2002) (concluding
that a court "may recharacterize a post-conviction motion made under
another rule or law as a section 2255 motion only if it first ensures
that the movant is fully informed of section 2255's restriction on . . .
successive 2255 motions . . . and [it] offers the movant an opportunity
to withdraw his motion"). With this threshold matter behind it, the court
can move on to address the petitioner's two claims.
B. The Petitioner's Request for a Post-Sentence Downward
The petitioner asserts that his post-sentence drug-rehabilitation
efforts entitle him to a downward departure. Pet'r Mot. at 7. He
attributes his claimed success in overcoming his drug
addiction to two courses that he completed while incarcerated after
the imposition of his sentence. Id. at 5. In other words, the
petitioner would have this court believe that his post-sentence
rehabilitation entitles him to a decrease in the imprisonment term of his
sentence pursuant to 18 U.S.C. § 3582(a). Id. at 2-7.
By its very terms, section 3582(a) prescribes certain enumerated
factors, outlined in section 3553(a), that courts may consider in
imposing a term of imprisonment and when departing below the sentencing
guidelines. 18 U.S.C. § 3582(a) (referencing
18 U.S.C. § 3553(a)). By its plain language, this provision of the statute
applies only to the pre-determination of a prison sentence, not the
subsequent modification thereof. Id. It is therefore evident that the
petitioner harnesses his post-sentence departure request to the wrong
statutory provision given that the posture of his criminal case is in the
post-sentence stage. Id.; Pet'r Mot. at 2-7.
That said, the court recognizes that section 3582(c) allows for the
modification of an ongoing prison sentence. 18 U.S.C. § 3582(c). In
line with the indulgence afforded to pro se litigants, the
court evaluates the petitioner's departure request under this statutory
provision. Moore, 994 F.2d at 876.
Section 3582(c) enumerates three limited circumstances for the
modification of a prison sentence, none of which apply here.
18 U.S.C. § 3582(c); United States v. Morris, 116 F.3d 501, 504 (D.C.
Cir. 1997). First, the sentencing court may reduce the petitioner's term
of imprisonment upon motion of the Director of the Bureau of Prisons if
the court finds that "extraordinary and compelling reasons warrant such a
reduction." 18 U.S.C. § 3582(c)(1)(A)(i); Morris, 116 F.3d
at 504. The Director of the Bureau of Prisons has not advanced such a
in the instant case. Second, the court may modify the petitioner's
sentence if the Sentencing Commission has lowered the applicable
guidelines after determination of the challenged sentence,
18 U.S.C. § 3582(c)(2); Morris, 116 F.3d at 504, and when "such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission." United States v. Young, 247 F.3d 1247,
1253 (D.C. Cir. 2001). No one contends that such a variance has occurred
here. Finally, the court may modify a previously-imposed imprisonment
term if statute or Federal Rule of Criminal Procedure 35 grants the court
such authority. 18 U.S.C. § 3582(c)(1)(B); Morris, 116 F.3d
at 504. As to this last point, Rule 35 allows the court to reduce a
sentence only within 120 days of the sentence's initial imposition. FED.
R. CRIM. P. 35(a)-(b). Consequently, the petitioner's instant motion,
which he filed two-and-a-half years after the original sentencing, does
not qualify him for relief under Rule 35. Id. Even if the court
were to use the filing date of the petitioner's original (incomplete)
section 2255 motion as the measuring point, the court would still
determine that such relief is not available to the petitioner.
The petitioner travels down one final avenue that could lead to a
post-sentence downward departure. The Supreme Court has allowed
sentencing courts to deviate from the customary sentencing guidelines
when an "atypical" case arises. Koon v. United States,
518 U.S. 81, 93 (1996). "If a factor is unmentioned in the Guidelines, the
court must, after considering the structure and theory of both relevant
individual guidelines and the Guidelines taken as a whole, decide whether
it is sufficient to take the case out of the Guideline's heartland."
In re Sealed Case, 292 F.3d 913, 916 (D.C. Cir. 2002) (citing
Koon, 518 U.S. at 96). To be eligible for a downward departure
based on post-conviction rehabilitation, the rehabilitative efforts must