United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge.
matter is before the Court on defendant's motion [Dkt.
No. 1546] to reconsider the decision of the Court on
defendant's unopposed motion to reduce sentence [Dkt. No.
1540], filed on April 1, 2015.
case was originally assigned to Judge Richard W. Roberts, who
presided over the trial of defendant Desmond Thurston in
2007. The jury found Mr. Thurston guilty of two counts of
unlawful distribution of less than 5 grams of cocaine base,
but Judge Roberts found as relevant conduct that defendant
Thurston was responsible for at least 1.5 kilograms of
cocaine base. The applicable Guidelines sentencing range for
Mr. Thurston at the time of sentencing therefore was 262 to
327 months, based on an Offense Level of 36 and a Criminal
History Category of IV. Judge Roberts departed downward from
the applicable Guidelines sentencing range to a range of 168
to 210 months, represented by an Offense Level of 33 and a
Criminal History Category of III. He then sentenced Mr.
Thurston in the middle of that Guidelines sentencing range to
a period of 194 months of imprisonment. Defendant Thurston
unsuccessfully appealed his sentence to the D.C. Circuit.
April 1, 2015, Mr. Thurston, represented by the Federal
Public Defender, filed a motion [Dkt. No. 1540] pursuant to
18 U.S.C. § 3582(c)(2) for a reduction of his sentence
from 194 months to 168 months. The United States did not
oppose that motion. By Memorandum Order of April 8, 2015,
Judge Roberts denied the motion to reduce the sentence,
relying upon the same aggravating and mitigating factors that
had led him at the time of the initial sentencing to reduce
the Offense Level from 36 to 33 and the Criminal History
Category from IV to III. See Memorandum Order of
April 8, 2015 at 2-4 [Dkt No. 1543]. Judge Roberts found that
a sentence of 194 months remained "fair and just"
under the factors set forth in 18 U.S.C. § 3553(a), and
that Mr. Thurston had presented no facts or arguments that
would support any different result. Id. at 4.
April 1, 2016, this case was reassigned from Judge Roberts to
the undersigned. While the undersigned therefore was neither
the sentencing judge nor the judge who considered the
original motion under 18 U.S.C. § 3582(c), it falls upon
him to consider the motion to reconsider. The Court
recognizes that post-sentencing rehabilitation may not be
considered on a motion to modify a previously imposed
sentence brought under 18 U.S.C. § 3582(c)(2). See
United States v. Clipper, No. 96-cr-0291, 2016 WL
1555671, at *3 (D.D.C. April 15, 2016); United States v.
Moore, 930 F.Supp.2d 141, 145 n. 3 (D.D.C. 2013).
Nevertheless, counsel for Mr. Thurston has included in her
motion to reconsider matters that she had thought would have
been brought to the attention of Judge Roberts when he
decided the original motion to reduce sentence, but
apparently were not brought to his attention in a timely
manner. See Defendant's Motion for Reconsideration at 3
[Dkt No. 1546]; see also Probation Office Memorandum
of April 7, 2015 at 1-4 [Dkt. No. 1542].
also points out that under the Guidelines in effect today,
Mr. Thurston would be at Offense Level 32, rather than at
Offense Level 33. Assuming that Judge Roberts would still
apply Criminal History Category III, the Guidelines
sentencing range would be 151 to 188 months. On
reconsideration, counsel therefore asks the Court to reduce
Mr. Thurston's sentence from 194 months to 168 months -
either because 168 months is the bottom of the Guidelines
sentencing range considered by Judge Roberts in his April 8,
2015 Opinion,  or because it is in the middle of the
range that would be applied if Mr. Thurston were sentenced
today with a Criminal History Category of III.
questions presented are: whether the Court has discretion
under Section 3582(c)(2) to reconsider Judge Roberts'
April 8, 2015 decision, and whether a sentence of 168 months
is fair and just under all of the factors set forth in 18
U.S.C. § 3553(a). Clearly, the Court does have the
authority to reconsider. United States v. Cabrera,
699 F.Supp.2d 35, 39 (D.D.C. 2010) (collecting cases);
United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.
2009). And while one cannot know whether Judge Roberts would
have been persuaded by the arguments set forth in the motion
to reconsider, the undersigned is. A sentence of 168 months
seems appropriate. Accordingly, it is hereby
that Mr. Thurston's motion to reconsider is GRANTED. Mr.
Thurston's sentence shall be reduced to 168 months of
 The Court notes that the government in
its response [Dkt. No. 1548] to the motion to reconsider
states as follows: "The government did not oppose the
original motion [to reduce sentence] and therefore takes no
position on the motion for reconsideration, but reserves the
right to defend on appeal any ruling by the trial
 The Probation Office, in its
memorandum of April 7, 2015 [Dkt. No. 1542] also points out
that, based on the 2014 Sentencing Guidelines considered by
Judge Roberts, defendant would be at Offense Level 32,
Criminal History Category IV, for ...