United States District Court, D. Maryland
PAUL D. DORSEY, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. PJM 09-0468
PETER J. MESSITTE, District Judge.
Paul Dorsey, pro se, has filed a Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 [Paper No. 441] and a Motion for Appointment of Counsel [Paper No. 487]. Having considered the Motions and the Government's Opposition to same, the Court will DENY them.
On June 21, 2010, Dorsey pled guilty to one count of Conspiracy to Distribute and Possess with Intent to Distribute Fifty (50) Grams or More of Cocaine Base ("Count One") and a second count of Felon in Possession of a Firearm and Ammunition ("Count Eleven"). At sentencing, the Court found him to have a Total Offense Level of 25 and a Criminal History Category of VI. He was thereupon sentenced to 137 months imprisonment as to Count One, and a concurrent term of 120 months imprisonment as to Count Eleven.
On September 19, 2011, Dorsey appealed the Court's sentence. On July 5, 2012, the Fourth Circuit dismissed his appeal, with an effective mandate date of July 27, 2012.
On September 21, 2012, pursuant to a Petition for a Writ of Coram Nobis, the District Court for Calvert County struck one of Dorsey's prior convictions, a January 1, 2011 conviction for Resist/Interfere with Arrest.
On October 9, 2012, Dorsey filed the present Motion to Vacate.
In his Motion, Dorsey argues (1) that the Court applied an incorrect (more onerous) mandatory minimum term of imprisonment instead of the mandatory minimum established by the Fair Sentencing Act of 2010 ("FSA"), and (2) that the Court should recalculate his Criminal History Category because of the subsequently vacated state court conviction.
Specifically, Dorsey says that his "137 month term should be reduced where the district court's starting place in calculating [his] term of imprisonment was a starting place of a mandatory minimum term of ten (10) years", instead of the five year mandatory minimum in effect as of the time of his sentence. Dorsey then argues that, because one of the state court convictions that was factored into his Criminal History score was vacated subsequent to his sentencing, his Criminal History Category should be recalculated to reflect Category V rather than Category VI status. In consequence, he says, his guideline range of imprisonment should be reduced to 100-125 months from 110-137 months.
In response, the Government argues that (1) the Court should decline to address the merits of the § 2255 Motion because it is an improper vehicle for relief, (2) the Court properly sentenced Dorsey under the amended Guidelines and in fact applied the five year mandatory minimum sentence, and (3) the Court made clear at sentencing that the possible vacatur of Dorsey's state court conviction would change neither his Criminal History Category nor, in any event, the Court's sentence.
At sentencing Dorsey was found to have an Offense Level of 25. Sentencing Tr. 45:1. As to Count One, Dorsey had agreed in his Plea Agreement that his Base Offense Level was 30, "because at least 50 grams but less than 150 grams of cocaine base (crack)" was involved in the offense. Plea Agrmt at ¶6.a. To be sure, however, this Base Offense Level was revised downward in the Final Presentence Report, as of February 2, 2011, because of subsequent revisions in the Sentencing Guidelines for crack offenses. The new result was a Base Offense Level of 26. Final PSR at ¶24. The parties further agreed that a two-level increase in the offense level was appropriate "because a firearm was possessed". Plea Agrmt at ¶6.c. After a two-level reduction for acceptance of responsibility, and an additional one-level reduction for timely notification of his intention to plead guilty, Dorsey's Total Offense Level was determined to be 25. Final PSR at ¶¶30-31; Plea Agrmt at ¶6.f.; Sentencing Tr. 44:25-45:1.
Although Dorsey's Motion regarding the applicable mandatory minimum has been made as part of a Motion to Vacate under § 2255, his claim for relief based on the Fair Sentencing Act ("FSA") is better understood as a motion seeking reduction of his sentence under 18 U.S.C. § 3582. See Rios v. United States, Civil No. PJM-11-2238, Crim. No. PJM 10-0017, 2012 WL 3775832, at *2 (D. Md. Aug. 29, 2012) (Messitte, J.). As the Office of General Counsel of the United States Sentencing Commission has suggested, "[t]he proper vehicle for seeking a sentence reduction pursuant to an amendment to the guidelines given retroactive application by the Commission is a motion to reduce sentence pursuant to 18 U.S.C. § 3582." UNITED STATES SENTENCING COMMISSION, CRACK RETROACTIVITY: PROCEDURAL ISSUES 15 (2012), available at http://www.ussc.gov/Legal/Primers/Primer_Crack_Retroactivity.pdf (citations omitted); see also United States v. Chandler, 534 F.3d 45, 51 (1st Cir. 2008) ("The remedy for defendants who believe they are entitled to such resentencing [under the retroactive revisions to the guidelines for crack cocaine offenses] is to file a motion with the district court seeking relief under 18 U.S.C. § 3582(c)(2)."). Because Dorsey's Motion was filed pro se, and because labels ...