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.
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 ...