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Price v. United States

United States District Court, D. Maryland

March 7, 2017

DUVINE ERSKINE PRICE Petitioner
v.
UNITED STATES OF AMERICA Respondents Crim. No. ELH-13-364

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         Duvine Price, petitioner, pled guilty on June 19, 2014, to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. ECF 163, ECF 164. On November 4, 2014, this Court sentenced Petitioner to 100 months' imprisonment. ECF 212, ECF 215, ECF 216. The Judgment of Conviction was docketed on November 5, 2014. ECF 215. Petitioner did not appeal his conviction or his sentence.

         On September 6, 2016, Price filed a motion to reduce sentence (ECF 236, “Motion”), pursuant to 18 U.S.C. § 3582(c)(2). Price claims he is entitled to a reduction in sentence based on revisions to the sentencing guidelines with respect to drug quantity. Id. at 2. The government opposes the Motion. ECF 255.

         In addition, on October 24, 2016, Price filed a Motion to Vacate, Set Aside, or Correct a Sentence (the “Petition”), pursuant to 28 U.S.C. § 2255. ECF 244. In his Petition, Price claims he is entitled to relief pursuant to the decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He complains that his sentence was “wrongfully enhanced due to a firearm which was never proven to have been in [his] possession . . . .” Id. at 5. He also asserts: “The Residual Clause Has Been Declared Unconstitutional By The Supreme Court of the United States.” Id. at 2; see also Id. at 3, 4.

         Thereafter, on November 8, 2016, this court directed the government to respond to the Petition. ECF 247. In its response (ECF 254), the government moved to dismiss the Petition as untimely. Alternatively, it claims the Petition lacks merit. Id. Although Petitioner was granted 28 days from the date of the government's response to file a reply (see ECF 247), he did not do so.

         For the reasons stated below, the Petition and the Motion shall be denied. Moreover, a certificate of appealability shall not issue.

         I. Motion to Reduce Sentence

         In his Motion, Price asserts that he is entitled to a reduction of his sentence “in regards to the drug quantity, ” and notes that he has completed drug and other programs considered rehabilitation under 18 U.S.C. §3553(a). ECF 236 at 2. Respondent explains, inter alia, that petitioner is not entitled to a reduction of his 100 month term of incarceration because at sentencing he received the benefit of the revisions to U.S.S.G. § 2D1.1, as amended by Amendment 782, and made retroactive by U.S.S.G. § 1B1.10(d). ECF 255 at 2. The government also notes that the sentence imposed on Price is “almost three years below the low-end of his guidelines range.” Id.

         As noted, Price entered a plea of guilty on June 19, 2014. ECF 163. His Plea Agreement (ECF 164) provided, in part, id. ¶ 7:

In anticipation of the forthcoming changes to the Drug Quantity Table in the United States Sentencing Guidelines 2D1.1, the United States hereby agrees not to oppose a 2-level downward variance. In exchange, the defendant agrees not to seek a sentence reduction under 18 USC 3582(c)(2) based on the retroactive application of Amendment #3 to the USSG submitted to Congress on April 30, 2014.

         The amended guidelines took effect on November 1, 2014, i.e., prior to Price's sentencing on November 4, 2014. Therefore, at sentencing, the Court calculated Petitioner's offense level under U.S.S.G. § 2D1.1, as revised pursuant to Amendment 782.

         In particular, the Plea Agreement contemplated a base offense level of 34. ECF 164, ¶ 6(B). But, the Court found a base offense level of 32, pursuant to U.S.S.G. § 2D1.1(c)(3). Thus, Price received the benefit of the amendment at the time of his sentencing.

         In addition, in accordance with the Plea Agreement, ¶ 6(B), defendant agreed to a two-level increase to his offense level under U.S.S.G. § 2D1.1(b)(1), because a dangerous weapon was possessed in connection with the offense.[1] When combined with the other guideline applications, Petitioner's adjusted offense level was 31.[2] At the established criminal history category of III, this resulted in an advisory sentencing guidelines range for Price of 135 to 168 months.

         In the Plea Agreement, the government agreed to recommend a sentence within the advisory sentencing guidelines range. ECF 164, ¶ 10. Based upon 18 U.S.C. § 3553(a) factors, however, this Court granted a 35-month variance from the bottom of ...


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