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U.S. v. BOARD

September 2, 2005.

UNITED STATES OF AMERICA
v.
McKINLEY L. BOARD Petitioner.



The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District

MEMORANDUM OPINION

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.

I. BACKGROUND

  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).

  II. DISCUSSION

  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 ...


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