United States District Court, D. Maryland
K. Bredar Chief Judge.
February 20, 2018, Monica McCants, an inmate confined at the
Federal Prison Camp in Alderson, West Virginia, filed a
missive with the Court seeking a “waiver and/or removal
of specific characteristic enhancement [made pursuant to]
2D1.1(b)(2) . . . .” The letter was alternatively
construed as correspondence and as a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct a sentence by a
person in federal custody. United States v. McCants,
Criminal No. JKB-11-0426 (D. Md.) at ECF Nos. 461 & 462.
McCants attacks her 2013 sentencing enhancements, seemingly
claiming that she did not use violence, make a threat of
violence, or direct the use of violence, and the sentencing
enhancements should not have applied to her. She asks to
remove the enhancement so that she may participate in a
Residential Drug and Alcohol Program (RDAP) and receive early
release. The correspondence shall be analyzed in the
alternative as a motion to vacate and as a motion for
reduction of sentence under 18 U.S.C. § 3582. For
reasons to follow, the motion to vacate shall be dismissed
without prejudice, while the motion for reduction of sentence
shall be denied.
24, 2013, McCants was sentenced to concurrent 180-month terms
on counts of conspiracy to participate in a racketeering
enterprise and conspiracy to distribute and possess with
intent to distribute a mixture containing heroin and cocaine
base, in violation of 18 U.S.C. § 1962(d) and 21 U.S.C.
§ 846. McCants was also ordered to serve concurrent
five-year terms of supervised release and to pay a special
assessment of $200.00. Judgment was entered on May 29, 2013.
United States v. McCants, Criminal No. JKB-11-0426
(D. Md.) at ECF No. 426. No. appeal was noted.
2, 2014, the court received McCants's self-represented
motion to vacate raising a claim under the Supreme Court
opinion of Alleyne v. United States, 570 U.S. 99
(2013). McCants alleged that “any fact that increases
the penalty for a crime beyond the maximum, must be submitted
to a jury, and proved beyond a reasonable doubt, or agreed
upon, during plea negotiations, by the defendant.”
United States v. McCants, Criminal No. JKB-11-0426
(D. Md.) at ECF No. 373. She claimed that elements not
charged, proven to a jury, or agreed upon by McCants were
used to enhance her sentence. After briefing, on August 29,
2014, the court dismissed the motion to vacate as time-barred
and declined to issue a certificate of appealability.
Id. at ECF Nos. 383 & 384. On December 18, 2014,
the Fourth Circuit denied a certificate of appealability and
dismissed the appeal. See United States v. McCants,
588 F. App'x. 234 (4th Cir. 2014).
December 8, 2014, the Court received McCants's second
§ 2255 motion, attacking the effectiveness of her
criminal trial attorney and the “threat[s] and
intimidat[ion]” employed by an Assistant United States
Attorney. United States v. McCants, Criminal No.
JKB-11-0426 (D. Md.) at ECF Nos. 400 & 401. The matter
was dismissed as successive on December 11, 2014.
Id., at ECF Nos. 401 & 402.
Motion to Vacate
was McCants's intention to file her letter as a §
2255 motion, the law is well settled that the district court
lacks jurisdiction to consider a second or successive motion
filed under 28 U.S.C. § 2255 unless the motion has been
certified in advance by a panel of the appropriate circuit
court of appeals and found to contain newly discovered
evidence bearing on the innocence of the movant or is based
on “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h);
see also United States v. Winestock, 340
F.3d 200, 205 (4th Cir. 2003). In this case, McCants filed
prior § 2255 motions, which related to the same judgment
and sentence that she presently challenges.
neither states nor does the record show that she has obtained
prior authorization from the Fourth Circuit to bring this 28
U.S.C. § 2255 action. Without prior appellate prefiling
authorization, this Court is unable to hear McCants's
claim. Winestock, 340 F.3d at 205. The motion must
be dismissed for lack of jurisdiction. See Evans v.
Smith, 220 F.3d 306, 325 (4th Cir. 2000).
18 U.S.C. § 3582
court alternatively construes McCants's filing as a
motion for reduction of sentence. The authority to modify or
correct a previously imposed sentence occurs only in the
“limited number of circumstances” set out in 18
U.S.C. § 3582(c). These circumstances are limited to (1)
when the Bureau of Prisons (“BOP”) moves the
Court to modify the sentence for reasons outlined in §
3582(c)(1); (2) under Federal Rule of Criminal Procedure 35
(on the government's motion due to substantial assistance
or to correct a clerical mistake within seven days of the
date the sentence was imposed); and (3) when the guidelines
under which the defendant was sentenced have been
subsequently lowered, and a modification of sentence is
consistent with the guidelines' policy statements.
See 18 U.S.C. § 3582(c).
McCants is aware, on September 13, 2016, the court granted
her previous motion to reduce sentence, finding that she was
entitled to an offense level reduction from 35 to 33 under
Amendment 782 of the United States Sentencing Guidelines. Her
sentence was reduced to a 168-month term. United States
v. McCants, Criminal No. JKB-11-0426 (D. Md.) at ECF No.
438. McCants sought further sentencing reductions for
post-sentencing rehabilitation programming, employment, and
positive family relationships. Those motions were denied.
Id., ECF Nos. 440-441, & 458-460.
review of the underlying criminal case and McCants's most
recent motion, the Court finds no factual, legal, or
statutory basis for providing McCants any further sentence