                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA

                   v.                                                Criminal Action No. 08-284 (JDB)
    STACY MOORE,
        Defendant.


                                MEMORANDUM OPINION & ORDER

         Defendant Stacy Moore seeks to reduce his 120-month sentence for conviction of a crack

cocaine offense based on a retroactive amendment to the sentencing guidelines. See 18 U.S.C.

§ 3582(c)(2). Because his sentence is the mandatory minimum under the governing statute, the

Court will deny Moore’s motion.

         In 2008, Moore was arrested and indicted for unlawful possession of crack cocaine,

possession of a firearm by a felon, and a number of other offenses. He entered a Rule 11(c)(1)(C)

plea agreement—an agreement that specifies an agreed-upon sentence or sentencing range.1

Pursuant to the agreement, Moore pled guilty to unlawful possession with intent to distribute 50

grams or more of cocaine base (also known as crack) in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii) (2006), and 18 U.S.C. § 2, and unlawful possession of a firearm and ammunition

by a felon, in violation of 18 U.S.C. § 922(g). See Plea Agreement [Docket Entry 30] ¶ 1 (Mar.

20, 2009). He acknowledged responsibility for 59.6 grams of crack cocaine, 516 grams of

cocaine powder, and 33.5 grams of heroin. See id. ¶ 2; see also Factual Proffer [Docket Entry 31]



1
 Federal Rule of Criminal Procedure 11(c)(1)(C) provides that, if the parties reach agreement on a plea, the plea
agreement may specify that an attorney for the government will:
         agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a
         particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not
         apply (such a recommendation or request binds the court once the court accepts the plea agreement ).
Fed. R. Crim. P. 11(c)(1)(C).

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at 2 (March 20, 2009). The plea agreement stipulated “that the mandatory minimum sentence of

120 months is the appropriate sentence for the offenses.” Plea Agreement ¶ 3. After reviewing

the presentence investigation report and comparing the agreed-to sentence to both the applicable

United States Sentencing Guidelines range (108 to 135 months), and the applicable mandatory

minimum (120 months), the Court accepted the plea agreement. On June 19, 2009, the Court

imposed concurrent sentences of 120 months in prison for the two convictions, followed by a

period of supervised release, and imposed a fine and special assessment. Subsequently, Moore

filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) [Docket Entry

53], which he supplemented with certificates of the educational and training programs he has

completed in prison [Docket Entry 55]. Assisted by counsel, he then supplemented his section

3582(c)(2) motion [Docket Entry 57]. The government opposes any reduction in Moore’s

sentence [Docket Entry 61].

       At the time of Moore’s crime and of his sentencing date, the governing statute set forth a

mandatory minimum penalty of 120 months for possessing with intent to distribute 50 grams or

more of crack cocaine. See 21 U.S.C. § 841(b)(1)(A)(iii) (2006). This reflected a gross disparity

in the treatment of crack cocaine and powder cocaine, “impos[ing] upon an offender who dealt in

powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth

that amount of crack cocaine.” Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012). In 2010,

Congress enacted the Fair Sentencing Act of 2010 (“FSA”), which reduced the crack-to-power

disparity from 100-to-1 to 18-to-1. See Pub. L. No. 111-220, 124 Stat. 2372. The statute took

effect on August 3, 2010. Under the FSA, the mandatory minimum sentence for possessing, with

intent to distribute, 59.6 grams of crack cocaine would only be 60 months. See 21 U.S.C.

841(b)(1)(B)(iii) (2012); see also FSA § 2(a), Pub. L. No. 111-220, 124 Stat. 2372.



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       In light of the FSA, the United States Sentencing Commission promulgated amendments

that lowered the guidelines ranges for crack offenses. See United States Sentencing Commission

Guidelines Manual (U.S.S.G.), amends. 748 & 750 (2011 app. C, vol. 3). The Sentencing

Commission made the reduced guidelines retroactive. See U.S.S.G. § 1B1.10(c) (2012). The

government agrees with Moore that because the sentencing guidelines range was lowered

retroactively, the applicable guidelines range is now 70 to 87 months, substantially below his

actual sentence.

       But a district court “may not modify a term of imprisonment once it has been imposed,”

except in limited circumstances. See 18 U.S.C. § 3582(c); see also Dillon v. United States, 130

S. Ct. 2683, 2690 (2010). As relevant here, a court may reduce the term of imprisonment “in the

case of a defendant who has been sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.” See 18 U.S.C.

§ 3582(c)(2). Moore argues that he is eligible for a sentencing reduction under this provision, but

his argument runs into two insurmountable hurdles: first, his sentence was not “based on” the

sentencing guidelines; second, even if the lower guidelines range applied, the Court would still

be required to sentence Moore to 120 months because the FSA is not retroactive and 120 months

is the minimum sentence under the governing statute.

        Turning to the first issue, the D.C. Circuit recently explained that whether a defendant

who enters a Rule 11(c)(1)(C) plea can be said to have been sentenced “based on” the guidelines,

within the meaning of section 3582(c)(2), depends on the district court’s reasons for accepting

the sentence that it ultimately imposed. See United States v. Epps, No. 11-3002, 2013 WL

500241, at *10 (D.C. Cir. Feb. 21, 2013). Here, in considering the parties’ stipulated sentence

under Rule 11(c)(1)(C), the Court considered the sentencing guidelines—which, at that time



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recommended a sentence of 108 to 135 months. But the sentence the parties agreed to and the

one the Court ultimately imposed was the lowest sentence permitted by statute. In this

circumstance, the guidelines were only relevant to the Court’s analysis in determining whether

the parties’ stipulated sentence was too low. In other words, even if the guidelines had advised a

sentence of 70 to 87 months at the time of sentencing, the Court would still have accepted the

plea agreement and sentenced Moore to 120 months. The sentence, based on the statutory

minimum and the parties’ agreement, was not based on the guidelines.

       Even setting aside the fact that the sentence arose in the context of a Rule 11(c)(1)(C)

plea, however, the Court cannot reduce Moore’s sentence. Sentencing statutes “trump[] the

Guidelines,” so the Court must sentence an offender to at least the minimum prison term set out

in the statute regardless of the applicable guidelines range. See Dorsey, 132 S. Ct. at 2327. If the

120-month mandatory minimum applies to Moore, the fact that the revised guidelines range now

recommends a lower sentence can have no impact. Accordingly, the key question—as the parties

recognize—is whether the FSA, which repealed the 120-month mandatory minimum, applies to

Moore, who was sentenced on June 19, 2009, before the FSA’s enactment. Binding authority has

answered this question “no.” In Dorsey, the Supreme Court held that “the Fair Sentencing Act’s

new minimums apply to all of those sentenced after August 3, 2010,” id. at 2336, while

acknowledging that this rule creates a disparity “between pre-Act offenders sentenced before

August 3 and those sentenced after that date.” Id. at 2335. And the D.C. Circuit has squarely held

that the FSA “is not retroactive” and a defendant who was “sentenced prior to the August 3, 2010

date of the Act’s enactment” “cannot benefit from [it].” United States v. Bigesby, 685 F.3d 1060,

1066 (D.C. Cir. 2012) (internal quotation marks omitted); see also United States v. Fields, 699




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F.3d 518, 522 (D.C. Cir. 2012) (“the FSA is inapplicable to offenders, like Fields, who were

sentenced before passage of the statute”).

         Given this rule—that only defendants sentenced after August 3, 2010, can benefit from

the FSA—Moore could benefit from the reduced minimums only if this section 3582 proceeding

constitutes a new sentencing. The Supreme Court has considered and rejected this very

characterization of section 3582(c)(2) proceedings, however, holding that the provision

“authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary

resentencing proceeding.” Dillon, 130 S. Ct. at 2691 (emphasis added); see also U.S.S.G.

§ 1B1.10(a)(3) (“proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not

constitute a full resentencing of the defendant”). In light of this, Moore’s sentencing date is

indisputably June 19, 2009; accordingly, the FSA does not apply to him.

         Moore raises a number of other arguments, but none can overcome the governing rule.

For instance, he argues that the reasoning of Dorsey supports applying the FSA retroactively to

defendants in his position. True, the Supreme Court’s Dorsey analysis supports broad application

of the FSA. But Dorsey itself limited its reasoning to defendants sentenced after August 3, 2010,

and the D.C. Circuit’s holdings in Bigesby and Fields have recognized and reaffirmed this

limitation.2 Moore also emphasizes the arbitrariness of treating differently individuals “with

identical criminal histories, who engaged in the same criminal conduct involving the same

amount of crack, and who sought § 3582(c)(2) reductions at the same time from the same judge.”

Def.’s Supp’l Mot. to Reduce Sentence [Docket Entry at 57] at 9 (July 30, 2012). But wherever

the line is drawn, disparities will remain. See Fields, 699 F.3d at 522 (“‘disparities, reflecting a


2
  Moreover, in applying the FSA to pre-Act offenders who were sentenced after the Act, the Supreme Court relied
heavily on the Sentencing Reform Act’s focus on the date “the defendant is sentenced.” See Dorsey, 132 S. Ct. at
2332 (internal quotation marks omitted). This critical statutory hook is inapplicable to defendants sentenced before
the FSA’s enactment.

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line-drawing effort, will exist whenever Congress enacts a new law changing sentences’”

(quoting Dorsey, 132 S. Ct. at 2335)). And the Supreme Court has acknowledged (and deemed

acceptable) that a disparity will exist between otherwise similar offenders based on their

sentencing date. See Dorsey, 132 S. Ct. at 2335 (acknowledging that its holding “will create a

new disparity”); see also Fields, 699 F.3d at 522 (“To be sure, the FSA, as interpreted by Dorsey,

produces a certain degree of arbitrariness.”). Moore also emphasizes the unfairness of the crack-

powder disparity and the desirability, given Congress’s recognition in the FSA that the disparity

is too high, of applying the reduced disparity broadly. It may be unfortunate that Moore, who is

serving a sentence that both Congress and the Sentencing Commission now consider greater than

necessary for his crime, cannot get a reprieve. But Congress, in choosing not to make the FSA

retroactive, decided that those like Moore should continue to serve more severe sentences, and

the Court cannot reduce his sentence in light of Congress’s choice.

        Several courts in this district have considered similar arguments about the FSA’s

application in section 3582(c)(2) proceedings and have reached the same result. See, e.g., United

States v. Baucum, No. 92-423, 2012 WL 6185715 (D.D.C. Dec. 12, 2012); United States v.

Seldon, No. 06-318, 2012 WL 6004215 (D.D.C. Dec. 3, 2012); United States v. Sartor, No. 04-

455, 2012 WL 3095351 (D.D.C. July 30, 2012). The Court joins them, holding that the pre-FSA

mandatory minimums apply to Moore and preclude any sentence reduction in this section

3582(c)(2) proceeding.3

                                               CONCLUSION



3
  In his pro se motion, Moore also appears to argue that his sentence should be reduced due to post-sentencing
rehabilitation, relying on Pepper v. United States, 131 S. Ct. 1229 (2011). That decision, however, is inapposite.
Pepper allows a court to consider post-sentencing rehabilitation in imposing a new sentence after a remand for
resentencing. Id. at 1241. Here, no remand for resentencing has occurred, and the Court’s power to modify a
previously imposed sentence is narrowly limited. Neither 18 U.S.C. § 3582(c)(2) nor any other provision allows the
Court to reopen an imposed sentence based on post-sentencing rehabilitation.

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      Accordingly, it is hereby ORDERED that [53] Moore’s motion to reduce his sentence is

DENIED.

      SO ORDERED.

                                                                         /s/
                                                                     JOHN D. BATES
                                                                United States District Judge
Dated: March 18, 2013




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