United States v. Russell

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Respondent,

criminal A¢rion No. 05-00272-01 (CKK)

V~ civil A¢rion No. 11-01925 (CKK)

REGINALD M. RUSSELL,

Defendant/Petitioner.

MEMORANDUM OPlNION

(December l2, 2011)

On August 29, 2005, Defendant Reginald M. Russell ("Russell"), acting pursuant to a

written plea agreement made under Federal Rule of Criminal Procedure ll(c)(l)(C),' pleaded

guilty to one count of unlawful possession with intent to distribute live grams or more of cocaine

base, more commonly known as "crack," in violation of 21 U.S.C. § 84l(a)(l) and (b)(l)(B)(iii).

By the terms of his [l 5] Plea Agreement, Russell agreed to a sentence of 120 months’

incarceration, no fine, a tenn of supervised release of five years, and the $100 assessment. On

November 28, 2005, the Court accepted the parties’ Plea Agreement and sentenced Russell to the

agreed-upon sentence.

Currently before the Court is Russell’s self-styled [22] "Motion Pursuant to 3582c and

2255," filed on October l2, 201 l, through which Russell seeks a reduction of his sentence under

18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, citing a retroactive amendment to the United

States Sentencing Guidelines lowering the base offense levels for most cocaine base offenses.

' Under the Rule, the Court is bound by the parties’ agreement as to a specific sentence

or sentencing range upon acceptance of a plea agreement. FED. R. CRIM. P. l l(c)(l)(C).

For two separate, independent reasons, Russell’s Motion shall be DENIED.

First, where, as here, a defendant is sentenced pursuant to a plea agreement made under

Rule 11(c)(1)(C), he may not avail himself of a subsequent reduction in the sentencing range

under a retroactive amendment to the Guidelines unless the agreement itself expressly refers to or

contemplates sentencing under the Guidelines. Freeman v. United States, _ U.S. __, 131 S. Ct.

2685, 2695-97 (Sotomayor, J., concurring).z Russell’s Plea Agreement neither refers to nor

contemplates sentencing under the Guidelines. lt does not, for instance, mention a particular

calculation, offense level, or criminal history category. Therefore, he may not avail himself of

the reduction in the base offense levels for cocaine base offenses brought about by the

amendment to the Guidelines.

Second, where the application of a retroactive amendment to the Guidelines does not

result in a different Guidelines sentencing range, the defendant is not entitled to a reduction in his

sentence. See Unitea’ States v. Berry, 618 F.3d 13, 17 (D.C. Cir. 2010) ("Section

1B1.10(a)(2)(B) of the Guidelines prohibits sentence modifications under § 3582(c)(2) if a

retroactive Guidelines amendment ‘does not have the effect of lowing the defendant’s applicable

guideline range."’) (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see, e.g., United States v. Lindsey, 556

F.3d 238, 244 (4th Cir.), cert. denz`ed, __ U.S. _, 130 S. Ct. 182 (2009); United States v. Lanier,

574 F.3d 668, 673 (9th Cir. 2009). In this case, Russell’s prior convictions for drug trafficking

offenses made him a "career offender" under Section 4B1.1 of the Guidelines, leaving the

2 In the absence of a majority opinion or a shared rationale adopted by a majority, Justice

Sotomayor’s opinion sets forth the holding in Freeman because it represents the narrowest

grounds for the result. Unitea' States v. Turner ___ F. Supp. 2d 4 2011 WL 5865490, at *5

(D.D.C. Nov. 21, 2011); accord United States v. Brown, 653 F.3d 337, 340 n.l (4th Cir. 2011).

2

applicable sentencing range unaffected by the amendment. Therefore, he may not avail himself

of the reduction in the base offense levels for cocaine base offenses brought about by the

amendment to the Guidelines. See Berry, 617 F.3d at 17-18 ("Because [the amendment] does not

lower the career-offender range, [the defendant] is ineligible for a sentence reduction if this is his

‘applicable guideline range."’).

For either of the foregoing reasons, Russell’s Motion must and shall be DENIED. The

Court has considered the remaining arguments tendered by the parties and finds them to be

without merit or superfluous in light of the Court’s reasoning above.

Furthermore, to the extent Russell’s Motion arises under 28 U.S.C. § 2255, "reasonable

jurists" could not debate whether the Motion should have been resolved differently or that the

issues merit further consideration. Slack v. McDanz'el, 529 U.S. 473, 484 (2000). Accordingly,

and because Russell has failed to make a substantial showing of the denial of a constitutional

right, no certificate of appealability shall issue from this Court. See 28 U.S.C. § 2253(0)(2);

Rules Governing Section 2255 Proceedings for the United States District Courts, Rule ll(a).

An appropriate Order accompanies this Memorandum Opinion.

Date: December 12, 2011 -

COLLEEN KO LAR-K LLY

United States District Judge