UNITED STATES DISTRIC'I` COURT
FOR THE D1STR1CT OF COLUMBIA

 

UNI'I`ED S'i`ATES OF AMERICA,
v. Crim.inal No. 08~0118-5 (PLF)

EDWARD TYRONE FARLEY,

Defendant.

 

MEMORANDUM OPlNlON AND ORDER
This matter comes before the Coui't on defendant Edwa:'d Tyrone Farley’s iler §
motion for retroactive application of the Sentencing Guidelines to his conviction under
Amendment 782 to the Sentencing Guidelines and 18 U.S.C. § 3582 (“Section 3582 l\/Iot.”) [Dkt.

No. 212] and his p§ § motion pursuant to Rule 60(d) of the Federal Rules of Civil Procedure

 

(“Rule 60(d) Mot.”) [Dkt. No. 214]. Thc government opposes both motions See United States’
Opp. to Dl<t. Nos. 212 and 214 (“Opp.”) [Di<t. No. 216]. Because Mr. Farley is proceeding p§
§ in this matter, the Court wishes to make Mr. Farley aware of his opportunity to reply to the
government’s consolidated Opposition on or before January 31, 2018.

Mr. Farley’s Section 3582 motion {Dl<t. No. 212] seeks a sentence reduction
under 18 U.S.C. § 3582(<:)(2) based on Amendment 782 to the drug quantity tables in the
Sentencing Guidelines, made retroactive by Amendment 788. The government responds that the
amendments have no impact on Mr. Farley’s sentence because his offense level was determined
by his designation as a career offender under Section 4B1.1 of the Sentencing Guidelines and not

by drug quantity §_e_e Opp. at 7~8 [Dl<t. No. 216].

l\/lr. Farley’s Rule 60(d) motion [Dl<t. No. 214] seeks two forms of relief pursuant
to Rule 60 of the Federal Rules of Civil Procedure. First, 1\/11'. Farley requests a reduction in his
offense level based on Amendment 794 to Section 3131.2 of the Sentencing Guidelines, the
sentencing guideline section that provides a downward offense level adjustment if a defendant
was a minimal or minor participant in criminal activity. §e_e Ruie 60(d) 1`\/10t. at 3~9 [Dkt. No.
214]. The government suggests that this portion of the motion should be construed as a claim
under Section 3582(0)(2) and denied because Amendment 794 has not been made retroactively
applicable on collateral review. E Opp. at 13-15 [Dl<t. No. 216].

Second, l\/Ir. Farley challenges the three~point increase to his offense level for his
role as a supervisor or manager in the criminal conduct §§ Rule 60(d) Mot. at 1-2, 5*6 [Dkt.
No. 214]. The government suggests that this portion of the motion should be recharacterized as a
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. §§ Opp. at 1 1-
13 [Dl<t. No. 216]. The government further asserts that the claim is untimely and does not entitle
Mr. Farley to relief due to his designation as a career offender. E. at 13.

Before deciding whether to recharacterize this second claim as a Section 2255
claiin, the Court must first issue warnings in accordance with Castro v. United States, 540 U.S.
375, 383 (2003). Accordingly, Mr. farley is hereby notified that if the Court treats his challenge
to the supervisor/manager enhancement in his Rule 60(d) motion [Dl<t. No. 214] as his first
Section 2255 motion, any subsequent Section 2255 motion will be subject to the restrictions on
“Second or successive” motions ld_. ln such case, l\/lr. Farley Will not be permitted to file any
further motions challenging his conviction or sentence unless the U.S. Court of Appeais for the
District of Columbia Circuit authorizes him to file such a motion '1`he Court of Appeals will not

authorize him to tile a second or successive Section 2255 motion unless the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found l\/lr. Farley guilty of the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the U.S. Supreme Court, that was previously
unavailable §§ 28 U.S.C. § 225 5(h). The motion will be subject to a one-year period of
limitations that requires dismissal unless the motion is filed within one year of the latest of the
dates listed in Section 225 5(f). Based on the consequences that may result if the Court
recharacterizes this claim as a Section 2255 claim, the Court hereby affords l\/lr. Farley the
opportunity either (l) to withdraw his claim challenging the supervisor/manager enhancement, or
(2) to amend it so that it contains all of the claims that he believes he may have to challenge his
conviction or sentence Accordingly, it is hereby

ORDERED that Mr. 1`*`arley may submit a consolidated reply with respect to his
Section 3582 motion [Dkt. No. 212] and his Rule 60(d) motion [Dkt. No. 214] on or before
.lanuary 31, 2018. ln particular, the consolidated reply may address the government’s arguments
raised in its Opposition [Dkt. No. 216], and further may either (1) withdraw the portion of the
Rule 60(d) motion [Dl<t. No. 214] challenging the supervisor/manager enhancement, or

(2) amend it so that it contains all of the claims that Mr. Farley believes he may have to

challenge his conviction or sentence Ifthe Court does not receive a timely reply from l\/lr.
Farley, the Court may, if appropriate, recharacterize the portion of the Rule 60(d) motion {Dl<t.
No. 214] challenging the supervisor/manager enhancement as a motion filed under Section 2255.

SO ORDERED.

PAUL L. FRIBDMAN
United States District .iudge

DATE; tall &"+l l?

