UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. : Criminal No. 06-199 (GK)

FILED
neczzzoos

CIerk, U.S. District and

DARNELL E. STEWART JR.,

Defendant.

Bankruptcy Courts
MEMORANDUM OPINION
This matter comes before the Court on Defendant Darnell E.
Stewart Jr.'s pro §§ Motion for Modification of Sentence, pursuant
to 18 U.S.C. § 3582(c)(2) [Dkt. No. 70]. Upon consideration of the

Motion, the United States’ Opposition, and the entire record
herein, Defendant’s Motion is denied and transferred in part.
I. BACKGROUND

Defendant was arrested on June l3, 2006 for possession with
intent to distribute cocaine in violation of 21 U.S.C. § 84l(a)(l).
Defendant was tried before a jury, but a mistrial was declared when
it was unable to reach a verdict.

On May l6, 2007, a superceding information charged Defendant
with possession with intent to distribute crack cocaine while
armed, in violation of D.C. Code § 48-904.0l(a)(l), 22-4502 (“Count
I”), and carrying a pistol without a license, in violation of D.C.
Code § 22-4504(a) (“Count II”). On the same day, Defendant pled
guilty to Counts 1 and ll pursuant to a plea agreement with the

Government.

On August 13, 2007, pursuant to the D.C. Sentencing
Guidelines, this Court sentenced Defendant to eighty-four months
imprisonment on Count l, and a concurrent thirty-two months
imprisonment on Count ll [as amended for clerical error, Dkt. No.
68].

Defendant filed a Motion to Reduce Sentence, pursuant to 18
U.S.C. § 3582(c)(2) on October 21, 2009, and the Government filed
its Opposition on November 19, 2009.

II. ANALYSIS

Defendant argues that his sentence should be modified based on
changes made to the Federal Sentencing Guidelines. Under §
3582(c)(2), a district court may reduce a defendant’s sentence if
it was imposed based on a Sentencing Guidelines range that has
since been lowered. Since the time of the Defendant’s sentence,
the United State Sentencing Commission has lowered the guidelines
range for crack cocaine offenses and made the change retroactive.
_§§ U.S.S.G., Supp. to App. C, Amend. 706, 711 (Mar. 3, 2008).

However, the revised guidelines are not applicable to the
Defendant, and the Federal Guidelines were not used when computing
his sentence,1 since Defendant pled guilty to D.C. Code offenses,
and the Court applied D.C. Sentencing Guidelines at the sentencing

hearing. See Tr. of Sentencing Hr’g at 17 [Dkt. No. 73 Ex. E].

1Fed. R. Crim. P. 35, Correcting or Reducing a Sentence, also
does not apply, as there is no technical error and the Government
has not made a motion for substantial assistance.

_2_

Defendant also requests modification of his sentence because
he claims that the Federal Bureau of Prisons (“BOP”) has denied him
admission to the Residential Drug Abuse Program (“RDAP”), which the
Court had recommended at the hearing.2

Regardless of whether such a recommendation was made, this
claim is properly brought in a petition for writ of habeas corpus.
See Stern, v. BOP, 601 F. Supp. 2d 303 (D.D.C. 2009) (claims
challenging conditions of confinement are properly brought under
habeas corpus). As such, this portion of Defendant's claim will be
treated as a habeas petition under 28 U.S.C. § 2241. H<)we\Ier,
this Court cannot hear the Defendant's habeas claim, as it lacks
personal jurisdiction over his custodian, who is currently the
warden of the federal prison where Defendant is confined in the
Eastern District of Kentucky. Guerra v. Meese, 786 F.2d 414, 415
(D.C. Cir. 1986) (“A district court may not entertain a habeas
corpus action unless it has personal jurisdiction over the
custodian of the prisoner.”). A habeas petition challenging the
execution of a sentence (as opposed to the legality of detention)
should be filed in the district where the Defendant is currently

incarcerated. See, e.g., Blair-BeV v. Ouick, 151 F.3d 1036, 1039

2The Government represents that there is no record of
Defendant applying for admission into RDAP. Opp’n Mot. at 10 n.6.

_3_

(D.C. Cir. 1998) (designating proper habeas respondent as the
defendant’s warden or immediate custodian).3

Under 28 U.S.C. § 1631, a district court can transfer an
action to any other court in which it could have been brought, if
it is in the interests of justice. While the Defendant could re-
file this portion of his claim in the proper district, it would be
needlessly time-consuming. Therefore, Defendant's claim that the
Bureau of Prisons has unlawfully denied his request for admission
into RDAP is transferred to the U.S. District Court for the Eastern
District of Kentucky, the district in which the Defendant is
incarcerated.
III. CONCLUSION

For the reasons stated herein, Defendant's Motion pursuant to
18 U.S.C. § 3582(c)(2) for Modification of Sentence under the
Federal Sentencing Guidelines is denied. Defendant's claim that he
is being denied entry into RDAP is treated as a petition for writ
of habeas corpus and is transferred to the U.S. District Court for
the Eastern District of Kentucky.

An Order will issue with this opinion.

December 22, 2009 /s/<;;AgfAd{”’/%;; /é;’7

Gladys Kessler l
United States Di trict Judge

3Even if this Court had jurisdiction over the Defendant, the
alleged denial of Defendant's admission into RDAP would not be
grounds to modify the sentence. §§§ 18 U.S.C. § 3621(b)(4)(A-B)
(giving Bureau of Prisons discretion to consider judicial
recommendations at sentencing).

__4_

