UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Defendant.

)
UNITED STATES OF AMERICA, )
)
)

) Criminal Action No. 93-315-01(RCL)
v. )
)
KEITH LAMONT DUNN, )
)
)
)

MEMORANDUM AND ORDER

On January 5, 1996, the Court sentenced Dunn to a tenn of 151 months of incarceration
with all but 60 months to run concurrent with a Superior Court case sentence. On January 21,
2010, the Court granted [Dkt. 242] defendant’s Motion to Reduce Sentence based on the
retroactive changes to the crack cocaine Sentencing Guide1ines. The Court reduced Dunn’s
sentence from a tenn of 151 months of incarceration to a term of 121 months pursuant to 18
U.S.C. § 3582(c)(2). On March 9, 2010, Dunn requested clarification [Dkt. 244] regarding the
sentence reduction because, according to the Bureau of Prisons, Dunn was released on parole in
his Superior Court case on November 20, 2009 and is currently serving the consecutive 60 month
portion of his sentence in the instant case. As a result, Dunn’s projected release date remains at
60 months from November 20, 2009, minus good time credits and he is therefore unable to
benefit from the January 2010 reduction in his sentence.

The Court instructed the parties to submit any appropriate motions regarding Dunn’s
request for clarification. In response to the Court’s March 9, 2010 order [Dkt. 243] directing the
parties to file any appropriate motions, Dunn now requests this court to amend its January 21,

2010 Order [Dkt. 246]. Dunn asserts that "[b]ecause the Court could not reduce a sentence that
l

was already completed and Mr. Dunn has completed the concurrent portion of this sentence at
the time the sentence was reduced, the 30 month reduction in his sentence must be taken from
the consecutive portion of his sentence." (Response to Order 11 3.) In other words, Dunn claims
that the Bureau of Prisons has "executed the Court’s January 2[1], 2010 Order in a manner that
violates § lB1.10(b)(2)(c) by reducing the already served concurrent portion of the sentence,
rather than the 60 months consecutive portion of the sentence." Dunn asserts that the Court has
the authority to "decide whether federal prison terms should run concurrently with or
consecutively to other prison sentences" based on 18 U.S.C. § 3584(a). (Response to Order 11 5.)
According to Dunn, by its clear language, § 3584 applies to "any imposition of a term of
imprisonment, not only imposition of an initial sentence." Id.

Unfortunately for the defendant, this Court does not have the authority to change the
original terms of the judgment to require all but 30 months to be served consecutively to the
Superior Court case. Section 3582(0) provides "a circumscribed opportunity for district courts to
give sentencing relief when the Sentencing Guidelines are changed." Um`ted States v. Lafayette,
585 F.3d 435, 438 (D.C. Cir. 2009). A defendant’s opportunity "to file under this exception to
the usual finality of sentencing decisions is triggered only by a Guidelines amendment," as is the
case in the instant case. Ia'. However, this Circuit has held that "it would be quite incongruous .
. . if section 35 82(c)(2) provided an avenue for sentencing adjustments wholly unrelated to such
an ainendment." Ia’.

Sentencing Commission policy statements impose a limit to district courts’ discretion in §
3582(0)(2) sentencing reductions. Specifically, sentence reductions pursuant to § 3582(0)(2) "do
not constitute a full resentencing of the defendant." U.S.S.G. § 1Bl.10(a)(3). Emphasizing the
limited nature of the section 3582(c)(2) remedy, the Guidelines direct that "[i]n making such

2

deterinination, the court shall substitute only the amendments listed in subsection (c) for the
corresponding guidelines provisions that were applied when the defendant was sentenced and
shall leave all other guidelines application decisions unaffected." Id. § lB1.l0(b)(1).
Additionally, § 3584(a), which gives district courts the authority to decide whether the
imposition of a term of imprisonment should run concurrently with or consecutively to other
prison sentences, is of no avail to the defendant. Section 3582(c)(2) authorizes the "modification
of an imposed term of imprisomnent," not the "imposition" of a sentence. Indeed, a similar
argument was rejected in Lafayette, where the court stated that "whatever verb one uses to
describe [the sentence reduction pursuant to §3582(0)(2)], the court did not start from scratch."
Lafayette, 585 F.3d at 438.

The authority defendant cites in support of the proposition that this court has authority to
alter the provisions of the original judgment and commitment order is unpersuasive. Defendant
has provided authority that a majority of circuits have held that §3584(a) applies to sentences
imposed following violations of supervised release, which is not the case here. While there is
nothing in § 3584(a) that precludes application in the context of a re-sentencing, as discussed
above, the plain language of 3582(c)(2) prohibits the court from altering the provisions of the
original judgment. See U.S. v. Strothers, 172 F.3d 922 (table) (D.C. Cir. 1998) (District court’s
resentencing authority from § 3582 limited to only what the statute authorizes: reduction of the
sentence in accord with the guideline amendment); T raynor v. Federal Bureau of Prisons, 131
F.3d 152 (Table) (l0th Cir. 1997) ("[T]he court has no authority to modify [defendant’s]
sentence retroactively to make it run concurrent to the state sentence he is currently serving.").

The decision of the Court is in accord with the Eighth Circuit case of Unitea’ States v.

Harris, 574 F.3d 971 (8th Cir. 2009). In Harris, the defendant filed a motion for reduction of

3

sentence and argued that the district court had authority to make his federal sentence consecutive
to a state sentence. The Eighth Circuit agreed with the district court that it lacked the authority
to revisit the consecutive versus concurrent sentencing decision. Id at 972. The court held that
proceedings under § 3582(c)(2) are "not a do-over of an original sentencing proceeding." Id. In
particular, the court noted that while some of the same factors in a sentence reduction "may
inform a judge’s original decision to make a sentence consecutive . . . such a decision is not
reopened pursuant to § 3582(¢)(2)." Id at 973.

For the forgoing reasons, the Court DENIES defendant’s request [Dkt. 246] to amend its

January 21, 2010 Order.

' c. %al>w¢@ ¢/7/¢//@

Chief ge Royce C. Lamberth Date

