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Gary v. United States

United States District Court, D. Maryland

April 4, 2019

KEVIN GARY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ELLEN LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.

         This Memorandum addresses two motions for reduction of sentence filed by Kevin Gary, who is now self represented. See ECF 1269; ECF 1560. Gary seeks relief under Amendment 750 or Amendment 782 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The government opposes the motions. ECF 1564. No. reply has been filed.

         No hearing is necessary to resolve these motions. For the reasons that follow, Mr. Gary is not entitled to relief. Therefore, I shall deny his motions.

         I. Factual and Procedural Background

         Gary was indicted on February 21, 2008, on multiple charges, including conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). ECF 1. He was one of twenty-eight defendants in the case. On January 9, 2009, before Judge William D. Quarles, Jr., Gary entered a plea of guilty to the racketeering charge (ECF 467), pursuant to a Plea Agreement. ECF 468.[1]

         The plea was entered under Fed. R. Crim. P. 11(c)(1)(C). Id. at 5, ¶ 9. Pursuant to the terms of the Plea Agreement, the parties agreed to jointly recommended to the court a term of imprisonment of 360 months. Id. Moreover, in ¶ 7 of the Plea Agreement, the parties stipulated that Gary qualified as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“Sentencing Guidelines” or “U.S.S.G.”).

         According to the “Stipulated Facts” contained in the Plea Agreement, Gary held a position of leadership in the Tree Top Pirus Gang, a subset of the “Bloods.” See generally ECF 468 at 8-18. Wiretap evidence showed that Gary, inter alia, facilitated drug transactions; ordered his subordinates to commit acts of violence; and organized the distribution of firearms. Id. at 12-17. Gary also stipulated to having sold narcotics (id. at 14) and to having participated in the gang-related murder of Terrance Williams, whose throat was slit. Id. at 15.

         On March 27, 2009, Judge Quarles sentenced Gary to the agreed upon term of imprisonment of 360 months, in accordance with the Plea Agreement. ECF 511; ECF 513. The following day, March 28, 2009, Gary noted an appeal to the Fourth Circuit. ECF 512. On December 29, 2010, the Fourth Circuit affirmed Gary's conviction and dismissed his appeal. See United States v. Penix and Gary, 406 Fed. App'x 744 (4th Cir. 2010) (per curiam); see also ECF 1138. The mandate issued on January 20, 2011. ECF 1137. Gary did not seek a writ of certiorari to the Supreme Court.

         On March 15, 2012, Gary filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and Guideline Amendment No. 750. ECF 1269. In regard to ECF 1269, it does not appear that the government responded. Nor did Judge Quarles rule; the motion remains open on the docket.

         On September 19, 2013, Gary filed a petition under 28 U.S.C. § 2255. ECF 1359 (the “Petition”). The government responded in opposition. ECF 1372. Gary replied. ECF 1396. And, on May 5, 2016, Gary amended his Petition. ECF 1473. The government again responded in opposition. ECF 1476. Thereafter, by Memorandum (ECF 1491) and Order (ECF 1492) of August 17, 2016, I denied the Petition.

         On December 26, 2018, Gary filed a request for relief pursuant to “Hughes v. United States” and “Sessions v. Dimaya.” ECF 1560. The submission contains assertions consistent with a petition under 28 U.S.C. § 2255 as well as a motion under 18 U.S.C. § 3582(c).

         In a letter of January 3, 2019 (ECF 1561) to Gary and to the government, I noted that ECF 1560 appeared to be a successive petition under § 2255. I also noted that the motion filed on March 15, 2012 (ECF 1269), seeking a reduction of sentence, appeared unresolved.

         The Office of the Federal Public Defender (“FPD”) responded on January 8, 2019. ECF 1562. It stated that the motion docketed at ECF 1560 arguably asserts claims both as a motion under 18 U.S.C. § 3582(c) and as a petition under 28 U.S.C. § 2255.[2]

         As indicated, Mr. Gary previously filed a Petition under 28 U.S.C. § 2255. ECF 1359, ECF 1473. And, I resolved that Petition in a Memorandum and Order of August 17, 2016. ECF 1491; ECF 1492. Therefore, to the extent that ECF 1560 constituted a petition under 28 U.S.C. § 2255, I denied it on January 9, 2019, without prejudice, subject to Mr. Gary's right to seek authorization from the Fourth Circuit to file a successive § 2255 petition. ...


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