United States District Court, D. Maryland
L. Hollander United States District Judge.
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
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.
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.
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.
reasons stated below, the Petition and the Motion shall be
denied. Moreover, a certificate of appealability shall not
Motion to Reduce Sentence
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.
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.
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.
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.
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. When combined
with the other guideline applications, Petitioner's
adjusted offense level was 31. At the established criminal
history category of III, this resulted in an advisory
sentencing guidelines range for Price of 135 to 168 months.
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
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