United States District Court, D. Columbia
September 2, 2005.
UNITED STATES OF AMERICA
McKINLEY L. BOARD Petitioner.
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before this Court are Petitioner McKinley L. Board's
Motion and Supplemental Motion for Reduction of Sentence Pursuant
to 18 U.S.C. § 3582(c)(2). Mr. Board claims that his sentence
should be reduced in light of amendments to the United States
Sentencing Guidelines and the Supreme Court's decision in United
States v. Booker, 125 S. Ct. 738 (2005). See Def. Board's Mot.
for Reduction of Sentence Pursuant to Title
18 U.S.C. § 3582(c)(2) at 1 (hereinafter referred to as "Def.'s Mem.");
Supp'l Mot. for Reduction of Sentence Pursuant to
18 U.S.C. § 3582(c)(2) at 2 (hereinafter referred to as "Def.'s Supp'l
Mot."). Because the amendments do not alter Mr. Board's total
offense level, and therefore do not alter his current sentence,
the Court will deny Mr. Board's motion. Moreover, since Mr.
Board's supplemental motion is, in substance, a successive motion
for relief under 28 U.S.C. § 2255, the Court will transfer it to
the United States Court of Appeals for the District of Columbia
Circuit in order for the Court of Appeals to determine whether to
authorize the filing of this motion.
Mr. Board and others (the "R Street Crew") were charged with
involvement in a drug conspiracy from 1983 to 1991. On February
11, 1993, a jury convicted Mr. Board of two Counts of RICO
conspiracy (Counts 1 and 2), drug conspiracy (Count 3),
employment of juveniles to distribute and possess with intent to
distribute cocaine (Count 41), possession with intent to distribute various controlled substances (Counts 43, 44, 45, 110,
112, and 114), assault with intent to kill while armed (Count
62), possession of a firearm during a crime of violence (Count
63), unlawful transportation of a firearm to commit a felony
(Count 104), and four counts of unlawful use of a communication
facility (Counts 95, 111, 113, and 115). See Judgment in a
Criminal case filed April 6, 1994 ("Judgment") at 1. Mr. Board
was acquitted of Counts 46, 64, 65, and 103. See id.
In accordance with Mr. Board's Revised Presentence
Investigation Report ("PSI") giving him a total offense level of
43 and a criminal history category of 1, this Court sentenced Mr.
Board to life imprisonment without parole on March 10, 1994.
See id. at 3; Revised Presentence Investigation Report dated
June 9, 1993 (hereinafter referred to as "PSI") at 27.
On June 3, 1997, the United States Court of Appeals for the
District of Columbia Circuit affirmed Mr. Board and his
co-defendants' convictions, and the Supreme Court denied
certiorari on December 15, 1997. United States v. Thomas,
114 F.3d 228 (D.C. Cir. 1997), cert. denied, 522 U.S. 1033 (1997).
Mr. Board and his co-defendants filed motions for a new trial,
which this Court denied, and the D.C. Circuit affirmed that
denial on March 20, 1998. United States v. Perkins,
138 F.3d 421 (D.C. Cir. 1998).
Mr. Board filed a pro se motion to vacate, set aside, or modify
his sentence pursuant to 28 U.S.C. § 2255 on December 15, 1998.
The Court denied the § 2255 motion. United States v. Board,
2000 WL 12891 (D.D.C. Jan. 6, 2000). Mr. Board's certificate of
appealability was denied. United States v. Board. 2001 WL
1606343 (D.C. Cir. 2001).
Mr. Board was originally sentenced in March 1994, at which time
he was found to have a total offense level of 43 and a criminal history category of 1.
See PSI at 27. Following the parameters outlined in the United
States Sentencing Guidelines ("U.S.S.G."), this Court sentenced
Mr. Board to a life term of imprisonment. See U.S.S.G. Manual
Sentencing Table (1993).*fn1
Mr. Board asks the Court to re-calculate and reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). See Def.'s Mem. at
1. He claims that the U.S.S.G. reduced his base offense level,
and Amendment 599 eliminates the two-level specific offense
characteristics enhancement applied to his sentence. See id.
at 4-5. The base offense level reduction Mr. Board refers to
occurred under Amendment 505 to the U.S.S.G. See U.S.S.G.
Manual app. C (2004), amend. 505. Amendments 505 and 599 of the
U.S.S.G. are discussed below. Mr. Board also argues that the
Supreme Court's decision in Booker is further grounds for
reducing and recalculating his sentence under § 3582(c)(2). See
Def.'s Supp'l Mot at 1.
A. Legal Standard
Generally, a term of imprisonment may not be modified once
imposed. 18 U.S.C. § 3582(c). Title 18 U.S.C. § 3582(c)(2),
however, provides an exception:
The court may not modify a term of imprisonment once
it has been imposed except that . . . (2) in 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 . . . if such a reduction is
consistent with applicable policy statements issued
by the Sentencing Commission.
In short, a petitioner may move for modification of his or her
sentence pursuant to § 3582(c)(2), as Mr. Board has done, if such
a modification is warranted by the Sentencing Commission's policy statements. Id. One such policy statement is U.S.S.G. §
1B1.10. Section 1B1.10(a) allows sentence modification pursuant
to 18 U.S.C. § 3582(c)(2) under certain circumstances:
Where a defendant is serving a term of imprisonment,
and the guideline range applicable to that defendant
has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in
subsection (c) below, a reduction in the defendant's
term of imprisonment is authorized under
18 U.S.C. § 3582(c)(2).
U.S.S.G. § 1B1.10(b) further states that "the court should
consider the term of imprisonment that it would have imposed had
the amendment(s) to the guidelines listed in subsection (c) been
in effect at the time the defendant was sentenced."
Both Amendments 505 and 599 are listed in U.S.S.G. § 1B1.10(c)
as "[a]mendments covered by this policy statement." Therefore,
under U.S.S.G. § 1B1.10(b), Amendments 505 and 599 are
retroactive to the date Mr. Board was sentenced. As explained
below, however, Mr. Board's total offense level and sentence are
not reduced by application of the amendments. Accordingly, he may
not have his sentence reduced under § 3582(c)(2).
B. Amendment 505
Amendment 505, effective November 1, 1994, established an upper
limit for the Drug Quantity Table in U.S.S.G. § 2D1.1 at level
38. See U.S.S.C. app. C (2004), amend. 505. Mr. Board claims
that under Amendment 505 he is entitled to a reduction of his
base offense level. See Def.'s Mem. at 4. Applying the
amendment, Mr. Board re-calculated his base offense level and
asserts that it should be a level 38. See id. Mr. Board's
calculation, however is incorrect. Paragraph 93 of Mr. Board's
Base Offense Level: The guideline to determine the
base offense level is found in U.S.S.G. § 2D1.2(a)(2)
which calls for a base offense level of 1 plus the
offense level from U.S.S.G. § 2D1.1 [the Drug
Quantity Table] applicable to the total quantity
controlled substances involved in the offense. In
this case, the total amount of drugs was determined
to be 300,000 kilograms of marijuana . . . and,
pursuant to U.S.S.G. § 2D1.1(a)(3)(c)(1), [which assigns a level of 42],
this establishes a base offense level of 43.
See PSI at 26-27.
Following the same analysis provided in PSI ¶ 93, application
of Amendment 505 to the calculation of Mr. Board's base offense
level would produce a level of 1 under U.S.S.G. § 2D1.2(a)(2),
plus a level of 38 under the amended U.S.S.G. § 2D1.1, for a
total base offense level of 39. Thus, Amendment 505 reduces Mr.
Board's base offense level from 43 to 39.
C. Amendment 599
Amendment 599, effective November 1, 2000, amends Application
Note 2 of U.S.S.G. § 2K2.4. U.S.S.G. Manual app. C (2004), amend.
599. The amendment clarifies under what circumstances weapon
enhancements may be added to a defendant's sentence. See id.
"The purposes of this amendment are to (1) avoid unwarranted
disparity and duplicative punishment; and (2) conform application
of guideline weapon enhancements with general guideline
principles." Id. Amendment 599 provides in part,
If a sentence under this guideline [2K2.4] is imposed
in conjunction with a sentence for an underlying
offense, do not apply any specific offense
characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining
the sentence for the underlying offense. . . . A
sentence under this guideline accounts for the
conduct covered by these enhancements because of the
relatedness of that conduct to the conduct that forms
the basis for the conviction under
18 U.S.C. § 844(h), § 924(c) or § 929(a).
Although Amendment 599 does not explicitly state that it is
only applicable to convictions based on 18 U.S.C. §§ 844(h),
924(c), or 929(a), many cases have interpreted the amendment in
that manner. See United States v. Barnes. 33 Fed. Appx. 733,
735 (6th Cir. 2002) (holding that Amendment 599 did not apply to
the petitioner's sentence because the petitioner was not
convicted under 18 U.S.C. § 844(h), § 924(c), or § 929(a));
United States v. Rice, 38 Fed. Appx. 267, 268 (6th Cir. 2002) (reasoning that since the
petitioner was not convicted under 18 U.S.C. § 844(h), § 924(c),
or § 929(a), Amendment 599 did not affect the petitioner's
sentence); Little v. United States, 242 F. Supp. 2d 478
(E.D. Mich. 2003) ("This language makes clear that Amendment 599
applies only to sentences imposed for violations of
18 U.S.C. §§ 844(h), 924(c), or 929(a)."); cf. United States v. Goines,
357 F.3d 469
, 473 (4th Cir. 2004) (holding that Amendment 599
applied to the petitioner's sentence because the petitioner was
convicted under 18 U.S.C. § 924(c)); United States v. Friend,
303 F.3d 921
, 922 (8th Cir. 2002) ("This language makes clear
that Amendment 599 applies only to 18 U.S.C. § 924(c)
In the instant case, Mr. Board erroneously contends that
Amendment 599 applies, and therefore, no levels for specific
offense characteristics should be added to his base offense
level. See Def.'s Mem. at 4-5. Mr. Board received a sentence
enhancement based on his conviction under 18 U.S.C. § 924(b),
Unlawful Transportation of a Firearm to Commit a Felony. See
PSI at 27. Because Mr. Board's conviction and sentence
enhancements were not based on 18 U.S.C. §§ 844(h), 924(c), or
929(a), Amendment 599's limitation on weapon enhancement does not
apply to his sentence calculation.*fn2 Consequently, the
two-level enhancement for specific offense characteristics
D. The Total Offense Level is Unchanged By the Amendments
The total offense level includes the base offense level and any
adjustments. As explained above. Mr. Board's base offense level taking into account
Amendment 505 is 39. See U.S.S.G. Manual app. C (2004), amend.
505; PSI at 26-27. Since Amendment 599 does not apply to Mr.
Board's sentence, the addition of two levels for specific offense
characteristics pursuant to U.S.S.G. § 2D1.1(b)(1) remains
unchanged. See U.S.S.G. Manual app. C (2004), amend. 599; PSI
at 27. The adjustment for Mr. Board's role in the offense, which
Mr. Board does not challenge, results in the addition of 3 levels
pursuant to U.S.S.G. § 3B1.1(b). See PSI at 27. As there are no
other adjustments, the new level subtotal is 44. In accordance
with the guidelines, an offense level of more than 43 is to be
treated as a level 43. U.S.S.G. Manual Sentencing Table (2004),
application notes (n. 2). Therefore, Mr. Board's recalculated
total offense level is 43, which is unchanged from the original
calculation. See PSI at 27.
A total offense level of 43 combined with a criminal history
category of I results in a life term of imprisonment. See
U.S.S.G. Manual Sentencing Table (2004). This sentence is no
different from Mr. Board's current sentence. See Judgment at 1.
Since Mr. Board's sentence has not been reduced through the
application of the amendments, he is not entitled to a sentence
reduction pursuant to 18 U.S.C. 3582(c)(2). See U.S.S.G. Manual
§ 1B1.10(a) (2004).
E. Booker is Inapplicable to § 3582(c)(2)
Mr. Board additionally claims that the Supreme Court's decision
in Booker is grounds for reducing his sentence under §
3582(c)(2). Booker, however, was a judicial change in the
federal sentencing regime, not a change made by the Sentencing
Commission. Therefore, Petitioner's supplemental motion does not
fall within § 3582(c)(2). Instead, Petitioner's motion is
properly characterized as a motion for relief pursuant to
28 U.S.C. § 2255. Under § 2255,
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside
or correct the sentence.
Thus, the core of a § 2255 motion is an attack on the
constitutionality or legality of the prisoner's conviction or
sentence or an offer of new legal arguments or additional
evidence. See United States v. Winestock, 340 F.3d 200
(4th Cir. 2003) (stating that "a brand-new, free-standing
allegation of constitutional error in the underlying criminal
judgment will virtually always implicate the rules governing" §
2255 motions): United States v. Barnes. No. CRIM.A.95-349, 2005
WL 217027, at *1-2 (E.D. Pa. Jan. 28, 2005) (explaining that
since a judicial change in the sentencing scheme is a
constitutional change and not a reduction in the sentencing range
by the Sentencing Commission under § 3582(c), the petitioner's
attack on his sentence was a constitutional one and thus properly
adjudicated as a § 2255 motion). Booker's invalidation of the
mandatory application of the United States Sentencing Guidelines
and conversion thereof into advisory guidelines is a
constitutional change. Booker v. United States, 125 S. Ct. 738
756-57 (2005) (stating that Booker is a "constitutional
holding" and that its effect is "to make the Guidelines
effectively advisory"); see Varela v. United States,
400 F.3d 864
, 867 (11th Cir. 2005) (discussing "the constitutional
rule announced in Booker"). Accordingly, Petitioner's
supplemental motion raises constitutional claims that must be
adjudicated under § 2255.
Since Petitioner filed his first § 2255 motion in 1998,
however, the instant motion is a second or successive one under
the statute. Therefore, Petitioner must obtain certification from
the D.C. Circuit before this Court can hear his motion.
28 U.S.C. § 2255 ("A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of
appeals to contain (1) newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.").
Accordingly, the Court will transfer Petitioner's supplemental
motion to the U.S. Court of Appeals for the District of Columbia
Circuit so that the Court of Appeals can determine whether to
authorize the filing of this motion.
For the foregoing reasons, Mr. Board's Initial Motion for
Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) is
denied. Additionally, Mr. Board's Supplemental Motion for
Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) will be
transferred to the U.S. Court of Appeals for the District of
Columbia Circuit so that the Court of Appeals can determine
whether to authorize the filing of this motion because this
motion is, in substance, a successive 28 U.S.C. § 2255 motion. An
appropriate Order will accompany this Memorandum Opinion.
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