United States District Court, D. Columbia.
Decided September 4, 2014
For UNITED STATES OF AMERICA, Plaintiff: Morris Rudolph Parker, LEAD ATTORNEY, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, VA; Patrick Stokes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Alexandria, VA; Roderick L. Thomas, LEAD ATTORNEY, WILEY REIN LLP, Washington, DC.
Thomas F. Hogan, UNITED STATES DISTRICT JUDGE.
Pending before the Court is defendant Antowan Thorne's Motion to Correct Sentence and for Collateral Review, [ECF No. 64] (" Def. Mot" ). After careful consideration of the motion, the related legal memoranda in support and in opposition, and the entire record of this case, this Court now DENIES defendant's motion. An appropriate Order will accompany this Opinion.
On September 15, 2000, Antowan Thorne pled guilty to unlawful possession
with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(iii) (Count One) and unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Three). On May 1, 2001, this Court sentenced him to 80 months' incarceration for each count, to be served concurrently. [ECF No. 36]. Defendant was also sentenced to four years of supervised release on Count One and three years of supervised release on Count Three, to be served concurrently. Defendant's supervised release began on April 6, 2006.
In October of 2006, defendant was arrested and for conspiracy to obstruct justice in violation of 22 D.C. Code § § 1805a and 722(a)(2)(A). According to the indictment filed in the Superior Court for the District of Columbia, defendant conspired to intimidate or harm government witnesses testifying in the murder prosecution of Thorne's cousin, George Phillip Foreman III. Defendant was convicted on a plea of guilty in November or 2007. Pursuant to his plea agreement, Mr. Thorne was sentenced in Superior Court to 36 months in prison. Mr. Thorne's conviction represented a violation of the terms of his supervised release, specifically, that he not commit any federal, state, or local offenses. This Court found that defendant had committed a Class A violation of his supervised release, as defined in U.S.S.G. § 4B1.2(a), because Mr. Thorne's violation was a crime of violence punishable by more than one year in prison. Mr. Thorne had a criminal history category of III, resulting in a Guidelines range of 30-37 months. See U.S.S.G. § 7B1.4(b)(1)(2). Taking into account the Guidelines and the record of this case, this Court sentenced Defendant to 30 months of imprisonment consecutive the term of imprisonment he was then serving in Superior Court. See [ECF No. 59].
Mr. Thorne appealed to the D.C. Circuit, arguing that his sentence was invalid on a number of grounds. See [ECF No. 58]. Defendant claimed that the sentence imposed for the violation of his supervised release breached his plea agreement in Superior Court and violated his right to Due Process. Appellant Brief, United States v. Thorne, 08-3109 (D.C. Cir. July 28, 2010) at 2-3, 17 [ECF No. 1257989]. Mr. Thorne also argued that this Court abused its discretion in sentencing him to 30 months in prison concurrent with his Superior Court sentence, id. at 7-8; that his sentence violated his Sixth Amendment right to a jury trial under Booker, id. at 8; that his sentence violated the Ex Post Facto Clause, id. at 9; that his sentence violated Double Jeopardy Clause, id. at 17-18; and that he is entitled to a reduction of his sentence under 18 U.S.C. § 3582(c)(2), id. at 17. On January 12, 2013, the D.C. Circuit affirmed this Court's judgment in a brief per curium opinion. United States v. Thorne, 405 F.App'x 513, 514 (D.C. Cir. 2011).
Mr. Thorne filed this motion in September 2010, while his direct appeal was pending. As in his direct appeal, Mr. Thorne argues that his sentence violates the Ex Post Facto Clause, the Double Jeopardy Clause, his right to a jury trial, and was a breach of his Superior Court plea agreement. In addition, defendant seeks a reduction of his sentence under 18 U.S.C. § 3582(c)(2) based on a reduction of the Guidelines for offenses involving cocaine base.
A. Standard of review