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United States v. Mubang

United States District Court, Fourth Circuit

July 5, 2013

UNITED STATES OF AMERICA
v.
THERESA MUBANG.

MEMORANDUM OPINION AND ORDER

DEBORAH K. CHASANOW, District Judge.

By a judgment entered March 1, 2005, Defendant Theresa Mubang was convicted, after a jury trial, of holding a juvenile alien to a term of involuntary servitude and harboring a juvenile alien for financial gain. She was sentenced, in absentia, to concurrent terms of imprisonment of 210 and 120 months, to be followed by a three-year term of supervised release, and ordered to pay restitution in the amount of $100, 000.00.[1] On June 11, 2013, Defendant filed the pending motions for reduction of sentence (ECF No. 126), to vacate restitution (ECF No. 127), and to modify restitution (ECF No. 128). More recently, she filed a motion for modification of sentence, attaching evidence of her successful rehabilitation during incarceration. (ECF No. 129).

In Defendant's motion for reduction of sentence, she cites "a new amendment that became effective November 1, 2012, " which "changes the probation criterion at [U.S.S.G. §] 4A1.2(c)(1) from a term of at least' one year to a term of more than' one year, when calculating criminal history points." (ECF No. 126, at 1). She appears to argue that this amendment should apply retroactively to reduce her criminal history category, which was based in part on a three-point enhancement for a 2001 healthcare fraud conviction for which she received a sentence of "37 month[s] [in] Federal Prison." ( Id. ).

While Defendant does not cite the basis of this motion, she presumably intends to move for relief pursuant to 18 U.S.C. § 3582(c)(2). That statute provides, in relevant part,

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), ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Defendant does not identify the amendment she seeks to apply, but appears to refer to Amendment 709 to the advisory sentencing guidelines. That amendment modified U.S.S.G. § 4A1.2(c) by, inter alia, "chang[ing] the probation criterion at § 4A1.2(c)(1) from a term of at least' one year to a term of more than' one year." Hooper v. United States, Civ. No. 1:08-0229, Crim. No. 1:06-0165, 2011 WL 3629152, at *3 n. 4 (S.D.W.Va. June 1, 2011). In other words, prior to the time Amendment 709 took effect, on November 1, 2007, § 4A1.2(c) provided, in relevant part, that a prior misdemeanor or petty offense could be counted for purposes of determining the criminal history category if "the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days[.]" U.S.S.G. § 4A1.2(c)(1) (2007) (emphasis added). The current version of this guideline provides that such an offense can only be counted if "the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days[.]" U.S.S.G. § 4A1.2(c)(1) (emphasis added).

Amendment 709, however, "does not apply retroactively." Hooper, 2011 WL 3629152, at *3 n. 6 (citing United States v. Gaston, 382 Fed.Appx. 297, 301-02 (4th Cir. 2010)). Because Defendant was sentenced prior to its effective date, she is not eligible for relief. Moreover, by her own admission, Defendant was sentenced to a term of imprisonment of thirty-seven months for the healthcare fraud conviction at issue, i.e., well over the thirty-day threshold set forth in § 4A1.2(c)(1). Thus, Amendment 709, which could only apply where the sentence was for a term of probation, could have no bearing.

Defendant additionally seeks vacatur or modification of her restitution order. She contends that the requirement that restitution be immediately payable "constitutes an impermissible delegation to the [Bureau of Prisons] of the Judge['s] obligations to set a payment schedule." (ECF No. 127, at 1).[2] Alternatively, she asks the court "to defer payments until [she] is transferred to a facility that has the occupational capacity to employ, " citing the fact that "employment is hard to gain" at her present facility. (ECF No. 128, at 1). She suggests that a "payment plan of $25.00 per quarter" is appropriate. ( Id. ).

Again, Defendant has not cited the legal basis of these motions, but the relevant statute is 18 U.S.C. § 3664( o ), which provides:

(o) A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that -
(1) such a sentence can subsequently be -
(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title;
(B) appealed and modified under ...

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