United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
Estep, through counsel, has filed a Motion for
Reconsideration of the Court's decision to grant his
Petition pursuant to 18 U.S.C. § 3582(c), ECF No. 581,
such that his sentence was reduced to 134 months in custody.
Having reviewed the Motion-in which Estep renews his request
for a reduction to 121 months in custody-and the
Government's Opposition thereto, the Court will DENY the
Estep's guilty plea to a three-count Superseding
Information, this Court sentenced him to 168 months in
custody to run currently as to: Count 1 - Conspiracy to
Distribute Five Kilograms or More of Cocaine and Fifty or
More Grams of a Mixture of Substance Containing a Detectable
Amount of Cocaine Base in violation of 21 U.S.C. § 846;
and Count 2 - Money Laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i). With an offense level of 32 and a
criminal history category of III, the applicable guideline
range at the time of sentencing was 151 to 188 months
10, 2015, Estep, through the Office of the Federal Public
Defender, moved under 18 U.S.C. § 3582(c)(2) for a
reduction in his sentence pursuant to Amendment 782 of the
Sentencing Guidelines, which reduced by two levels the base
offense level in the Guidelines for certain drug offenses
under § 2D 1.1. The Government consented to a two-level
reduction in Estep's offense level. With the same
criminal history category of III, but with the offense level
lowered from 32 to 30, the amended guideline range became 121
to 151 months. However, the parties disagreed as to the
extent of the reduction. Estep requested a reduction to 121
months, while the Government proposed a sentence of 134
months as the most accurate reflection of the original
sentence, using a percentage-based methodology.
Memorandum Opinion and Order dated April 4. 2016, the Court
granted Estep's Motion to Reduce Sentence, but only
reduced his sentence to 134 months. See ECF Nos.
577, 578. Then, on April 19, 2016, the Office of the Federal
Public Defender filed the instant Motion for Reconsideration
on Estep's behalf on the ground that defense counsel had
inadvertently left out Estep's progress report from the
Bureau of Prisons ("BOP"). See ECF No.
35(a) of the Federal Rules of Criminal Procedure permits the
reconsideration and correction of a sentence "[w]ithin
14 days after sentencing" only to correct an
"arithmetical, technical, or other clear error."
United States v. Goodwyn, 596 F.3d 233, 235
(4th Cir. 2010) (quoting Fed. R. Crim. P. 35(a)) (internal
quotation marks omitted). The scope of clear error under Rule
35(a) is "extremely narrow" is order to promote
"openness and finality in sentencing." United
States v. Hall, No. 15-4300, 2016 WL 1426424,
at *2 (4th Cir. Apr. 12, 2016) (quoting United
States v. Fields, 552 F.3d 401, 404-05 (4th Cir. 2009).
The Rule is limited to "cases in which an obvious error
or mistake has occurred in the sentence, that is, errors
which would almost certainly result in a remand of the case
to the trial court for further action.'" United
States v. Ward, 171 F.3d 188, 191 (4th Cir. 1999)
(quoting Fed. R. Crim. P. 35 advisory committee's 1991
Motion for Reconsideration, defense counsel renews the
request to reduce Estep's sentence to 121 months
primarily on the basis of the newly-submitted BOP report.
During his time in custody, the report shows that Hstep has
had "'zero disciplinary infractions[, ] . . . has
received positive evaluations from his counselors, has had a
consistent work history, and has taken advantage of
programming opportunities." ECF No. 581 at 1 (citing Ex
1. April 12, 2016 Progress Report at 2, 3, 15). The Motion
also notes that Estep is in a minimum security facility and
is permitted to go out into the community. Id.
(citing Ex. 1 April 12, 2016 Progress Report at 1). Defense
counsel requests that the Court take this information into
account, pursuant to the governing policy statement in the
Sentencing Guidelines, in assessing the "nature and
seriousness of the danger to any person or the community that
may be posed by a reduction, '' and the
""post-sentencing conduct of the defendant that
occurred after imposition of the term of imprisonment"
U.S.S.G. § IB 1.10 app. n. 1(B). On this basis, Estep
renews his request for a sentence of 121 months.
Government maintains that a reduction to 134 months is still
a proper amended sentence, arguing that the limited amount of
information as to the post-sentence conduct of the defendant
was not the sole reason for the Court's decision. ECF No.
considered the additional information provided by defense
counsel, the Court concludes that, on balance, 134 months is
still the most appropriate reduced sentence. It is within the
discretion of the district court to determine a reduced
sentence within the new guidelines range, "calculated by
any reasonable means, so long as it yields a new sentence
congruent with the policy statements of the Guidelines."
United States v. Fennell, 592 F.3d 506, 510-11 (4th
Cir. 2010). The Court explained in its April 4, 2016
Memorandum Opinion the relevant factors it took into account
in determining the new sentence:
While the Government's percentage-based methodology
provides an accurate way to "substitute only the
amendment(s) . . . for the corresponding guideline provisions
that were applied when the defendant was sentenced, "
U.S.S.G. §1B1.10(b)(1), the Court's analysis does
not stop there. In determining the extent of the reduction,
the Court is also instructed to consider other factors,
including the '"nature and seriousness of the danger
to any person of the community that may be posed by a
reduction in the defendant's term of imprisonment . .
." as well as "post-sentencing conduct of the
defendant that occurred after imposition of the term of
imprisonment.. .." U.S.S.G. § 1B1.10 app. n. 1(B).
Mem. Op. at 4-5, ECF No. 577. The Court went on to explain
that one reason for a sentence of 134 months rather than 121
months was that "the limited information provided as to
the post-sentencing conduct of the defendant does not warrant
a further reduction." Id., at 5.
the Guidelines' policy statements the Court
"may" take into account post-sentencing conduct,
but no one factor is dispositive. At the time of the original
sentencing, the Court considered a variety of factors,
including the history and characteristics of the defendant,
the nature and circumstances of the offense, and the
requirements of just punishment and adequate deterrence.
See 18 U.S.C. § 3553(a). For example, as the
Government notes, Estep was a "manager or supervisor in
a drug distribution conspiracy that involved three or more
people, " Gov't Resp. at 2, ECF No. 582 (citing
Presentence Report at ¶ 42), and pleaded to facts
including his role in recruiting others to the drug
trafficking organization. Id. (citing Plea Agreement