United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
Karen Kimble (“Kimble” or
“Defendant”), pro se, was charged in a
twenty-one count Criminal Indictment for wire fraud, tax
fraud, aggravated identity theft, and visa application fraud.
(Indictment, ECF No. 1.) After a bench trial before Judge
William D. Quarles on January 26, 2015, she was found guilty
on all twenty-one counts of the Criminal Indictment on July
8, 2015. (Mem. Op. 1, ECF No. 91.) Kimble was
sentenced to 48 months imprisonment on October 29, 2015.
(Judgment, ECF No. 109.) Now pending before this Court is
Defendant's Motion to Reduce Sentence (ECF No. 137),
Defendant's Motion for Reconsideration (ECF No. 140),
Defendant's Motion for Recommendation Regarding Length of
RRC Placement (ECF No. 141). The Defendant's submissions
have been reviewed and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2016). For the reasons set forth
below, Defendant's Motion to Reduce Sentence (ECF No.
137) is DENIED; Defendant's Motion for Reconsideration
(ECF No. 140) is DENIED; and Defendant's Motion for
Recommendation Regarding Length of RRC Placement (ECF No.
141) is DENIED.
facts of this case were fully set forth in the Court's
Memorandum Opinion (ECF No. 91.) After a bench trial, Kimble
was found guilty on all twenty-one counts of the Criminal
Indictment, and sentenced to 48 months imprisonment. (ECF No.
109.) In the Presentence Investigation Report, the Government
calculated Kimble's offense level and sentencing range
using the 2014 United States Sentencing Guidelines. (Am.
Presentence Investigation Report and Recommendation, ECF No.
108) (SEALED.) The economic loss involved in the offense fell
between $120, 000 and $200, 000. (Id.) For a loss in
that range, 10 offense levels were added to Kimble's
sentencing calculation, bringing her total offense level to
21. U.S.S.G. § 2B1.1(b)(1)(F). The advisory sentencing
range corresponding to an offense level of 21 and falling
within Kimble's criminal history category of II is 41-51
months. U.S.S.G. § 5G1.2(c). The 48 month sentence
imposed fell within that advisory range.
number of amendments to the Sentencing Guidelines were
pending before Congress and set to become effective on
November 1, 2015, roughly one week after Kimble's
sentencing hearing. (Tr. of Sentencing 48:14-15, ECF No.
127.) Among these, Amendment 791 made several changes to the
loss amount table at Section 2B1.1(b)(1) of the guidelines.
See U.S. Sentencing Guidelines Manual, Supplement to
App. C, Amend. 791 (2016). At the sentencing hearing, the
Government noted that if this Court decided to use the
yet-enacted loss table, a different sentencing range may have
applied in Kimble's case. (Tr. of Sentencing 48:10-21.)
Nevertheless, this Court used the table which was in effect
at the time, and imposed a 48-month sentence. (Id.
Motions to Reconsider (ECF Nos. 137, 140.)
not made explicit in either of the motions, Defendant Kimble
seeks to have this Court give retroactive effect to Amendment
791 in order to reduce her sentence. Pursuant to 18 U.S.C.
§ 3582(c), a district court may, upon the motion of a
defendant, reduce an otherwise final sentence which was based
on guidelines provisions amended after sentencing. Dillon
v. United States, 560 U.S. 817, 821 (2010). The decision
to reduce a prisoner's sentence pursuant to this statute
is within the district court's discretion. United
States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013).
However, on collateral review, this Court may only reduce a
sentence of imprisonment if the amendment was made
retroactive, and “[a]ny reduction must be consistent
with applicable policy statements issued by the Sentencing
Commission.” Dillon, 560 U.S. at 821.
guideline amendment may only be applied retroactively when
expressly listed in Section 1B1.10(d) of the Sentencing
Guidelines. United States v. Dunphy, 551 F.3d 247,
249 n.2 (4th Cir. 2009). Amendment 791 is not included among
the amendments at Section 1B1.10(d), and therefore cannot be
applied retroactively to grant the relief Defendant Kimble
seeks. Accordingly, Defendant Kimble is not
entitled to a reconsideration of the sentence under Section
3582(c)(2), because the Commission did not give the
applicable changes to the loss table retroactive effect.
Motion for Recommendation Regarding Length of RRC Placement
(ECF No. 141.)
Kimble petitions this Court to recommend to the Bureau of
Prisons (“BOP”) that she should be permitted to
serve twelve months of her remaining sentence in a
Residential Re-entry Center (“RRC”). (Def.'s
Mot. for Recommendation Regarding Length of RRC Placement 1,
ECF No. 141.) Pursuant to 18 U.S.C. § 3621(b), the BOP
“shall designate the place of the prisoner's
imprisonment” and may consider “any statement by
the Court that imposed” a prisoner's sentence.
Kimble argues that this provision grants this Court the
ability to issue her requested recommendation “at any
time.” See, e.g., United States v.
Ceballos, 671 F.3d 852, 856 n.2 (9th Cir. 2011)
(explaining that district courts have the “authority to
make (or not make) non-binding recommendations to the Bureau
of Prisons at any time.”) Other district courts,
however, have found that they lack the power to make
recommendations of this type long after a sentence has been
imposed. See, e.g., United States v.
Landers, No. 6:09-cr-0893-10-JMC, 2013 WL 5530271, at *2
(D.S.C. Oct. 7, 2013) (“The court is aware of no
authority by which it may issue a recommendation for halfway
house placement at this late stage.”); see
also, Carter v. United States, No. 14-CR-150,
2018 WL 2376513, at *2 (E.D. Wis. May 24, 2018) (surveying a
split in federal district court authority on this matter).
assuming that this Court has authority to grant Kimble's
request, this Court is not willing to issue the
recommendation she seeks. Kimble has explained that she
deserves this recommendation in light of her good conduct,
positive performance reviews during her employment in the
Central Dining Room and Facilities Central Management Office,
and desire to support her children and mother. (Def.'s
Mot. for Recommendation Regarding Length of RRC Placement at
3-4.) She further notes that her home is subject to
foreclosure proceedings, and that she requires surgery.
(Id. at 3.) Nevertheless, this Court finds that the
BOP is in the best position at this stage to evaluate
Kimble's assertions and determine whether she should be
permitted to serve the remainder of her sentence in RRC.
aforementioned reasons, Defendant's Motions for
Reconsideration (ECF No. 137, 140) are DENIED.
Defendant's Motion for Recommendation Regarding ...