United States District Court, D. Columbia
August 29, 2005.
UNITED STATES OF AMERICA
DERRICK COOK, Petitioner.
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before this Court is Petitioner's motion for reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2). Pet'r's Mot. for
Reduction of Sentence ("Pet'r's Mot."). After careful
consideration of Petitioner's motion. Government's opposition,
Petitioner's reply thereto, as well as the entire record in this
case, Petitioner's motion will be denied.
On October 18, 1993 and while on probation from a prior
Superior Court conviction, Petitioner was arraigned in federal
court and charged with one count of Unlawful Distribution of 50
Grams or More of Cocaine Base. A jury convicted Cook of that
crime on February 28, 1994. Subsequently, on March 3, 1994,
Superior Court Judge Robert Richter revoked Petitioner's
probation and sentenced him to be incarcerated for two to six
years. Gov't's Oppo. to Def.'s Mot. for Reduction of Sentence
Pursuant to 18 U.S.C. § 3582 (C)(2) at 3. On July 5, 1994,
Petitioner was sentenced by United States District Court Judge
Stanley Harris for the federal drug offense. At the time of
sentencing, Petitioner had a category II criminal history and an
offense level of 32. Id. at 2. Under the United States
Sentencing Guidelines ("U.S.S.G." or the "Guidelines"), this
would yield a sentence range of 135-168 months. U.S.S.G.
Sentencing Table (1993). Pursuant to the enhanced penalties provided in
21 U.S.C. § 841(b)(1)(A)(iii), however, Petitioner was sentenced to 240
months imprisonment followed by 10 years of supervised release.
Gov.'s Opp'n at 1. After being paroled from his Superior Court
sentence on May 20, 1996. Petitioner began serving his District
Court sentence in consecutive sequence. Id. at 3.
The Government claims that Petitioner's Superior Court and
District Court sentences were not specifically imposed to run
concurrently and so must run consecutively. Gov.'s Opp'n at 4:
18 U.S.C. § 3584(a) ("[m]ultiple terms of imprisonment imposed at
different times run consecutively unless the court orders that
the terms are to run concurrently"). Petitioner concedes that
neither the District Court's nor the Superior Court's Judgement
and Commitment Orders indicate that his sentences should be
served consecutively. Pet'r's Resp. at 1. Cook contends, however,
that Amendment 645*fn1 altered the Guidelines to provide
that his District Court sentence should downwardly depart to
account for his prior Superior Court probation revocation
sentence. Pet'r's Resp. at 2. Petitioner further contends that
U.S.C. § 3582(c) permits this Court to apply Amendment 645
retroactively to alter his District Court sentence by crediting
it to have begun concurrently with his Superior Court
sentence.*fn2 Id. at 2.
Petitioner misinterprets the aim of the downward departure
provision of Amendment 645. Amendment 645 allows downward
departure only for a prior, discharged imprisonment term that
U.S.S.G. § 5G1.3(b) would have required to run concurrently had
the term not yet been discharged. U.S.S.G. § 5G1.3, cmt. n. 7
(2002) ("[i]n the case of a discharged term of imprisonment, a downward departure is not prohibited if
subsection (b) would have applied to that term of imprisonment
had the term been undischarged."); see United States v.
Balagula, 275 F. Supp. 2d 307, 308 (E.D.N.Y. 2003) (declining to
apply Amendment 645 where the defendant's prior term of
imprisonment was undischarged at the time of sentencing). Section
5G1.3(b), in turn, requires concurrent sentencing only where a
new sentence would account for an offense that resulted in a
prior, undischarged sentence. U.S.S.G. § 5G1.3(b) (2002) (where
the offense giving rise to a defendant's undischarged term of
imprisonment is "fully taken into account" by a new sentence, the
new sentence must be imposed concurrently). In sum, where §
5G1.3(b) would require concurrent sentencing to avoid duplicative
punishment, Amendment 645 analogously permits downward departure
where sentencing would be duplicative of a prior, completed
As Petitioner's Superior Court revocation sentence was
undischarged at the time of his District Court sentencing, the
criteria of § 5G1.3(b) would have applied if ever, at that time.
Had the District Court determined Petitioner's federal sentence
to be duplicative of his Superior Court sentence under the §
5G1.3(b) criteria, it would have necessarily imposed a concurrent
or partially concurrent sentence at that time. The District
Court, however, declined to apply § 5G1.3(b) or any other
provision to specifically sentence petitioner concurrently. The
District Court thereby imposed its sentence consecutively by
operation of 18 U.S.C. § 3584(a). Now granting Petitioner a
departure under Amendment 645 merely because he has since
fulfilled his prior revocation sentence would thwart the District
Court's sentencing determination.
In addition. U.S.S.G. § 5G1.3 specifically recommends
consecutive sentencing in Petitioner's situation where a state
parole revocation sentence precedes sentencing on federal charges. U.S.S.G. § 5G1.3 n. 4 (1993) ("[T]he sentence for the
instant offense should be imposed to be served consecutively to
the term imposed for the violation of probation. parole, or
Petitioner's claim is therefore without merit. Accordingly, the
Court will deny Petitioner's motion. An appropriate order will
accompany this Memorandum Opinion.
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