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February 26, 2004.


The opinion of the court was delivered by: RICARDO URBINA, District Judge

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 petitioner's motion.


  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.

  III. ANALYSIS*fn1 Page 3

 A. The Petitioner's Motion Does Not Contemplate Section 2255 Relief

  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 Departure

  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 Page 4 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 motion Page 5 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. Id.

  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 be ...

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