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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Respondent,

criminal A¢rion No. 05-00272-01 (CKK)
V~ civil A¢rion No. 11-01925 (CKK)

REGINALD M. RUSSELL,

Defendant/Petitioner.

MEMORANDUM OPlNION
(December l2, 2011)

On August 29, 2005, Defendant Reginald M. Russell ("Russell"), acting pursuant to a
written plea agreement made under Federal Rule of Criminal Procedure ll(c)(l)(C),' pleaded
guilty to one count of unlawful possession with intent to distribute live grams or more of cocaine
base, more commonly known as "crack," in violation of 21 U.S.C. § 84l(a)(l) and (b)(l)(B)(iii).
By the terms of his [l 5] Plea Agreement, Russell agreed to a sentence of 120 months’
incarceration, no fine, a tenn of supervised release of five years, and the $100 assessment. On
November 28, 2005, the Court accepted the parties’ Plea Agreement and sentenced Russell to the
agreed-upon sentence.

Currently before the Court is Russell’s self-styled [22] "Motion Pursuant to 3582c and
2255," filed on October l2, 201 l, through which Russell seeks a reduction of his sentence under
18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, citing a retroactive amendment to the United

States Sentencing Guidelines lowering the base offense levels for most cocaine base offenses.

' Under the Rule, the Court is bound by the parties’ agreement as to a specific sentence
or sentencing range upon acceptance of a plea agreement. FED. R. CRIM. P. l l(c)(l)(C).

For two separate, independent reasons, Russell’s Motion shall be DENIED.

First, where, as here, a defendant is sentenced pursuant to a plea agreement made under
Rule 11(c)(1)(C), he may not avail himself of a subsequent reduction in the sentencing range
under a retroactive amendment to the Guidelines unless the agreement itself expressly refers to or
contemplates sentencing under the Guidelines. Freeman v. United States, _ U.S. __, 131 S. Ct.
2685, 2695-97 (Sotomayor, J., concurring).z Russell’s Plea Agreement neither refers to nor
contemplates sentencing under the Guidelines. lt does not, for instance, mention a particular
calculation, offense level, or criminal history category. Therefore, he may not avail himself of
the reduction in the base offense levels for cocaine base offenses brought about by the
amendment to the Guidelines.

Second, where the application of a retroactive amendment to the Guidelines does not
result in a different Guidelines sentencing range, the defendant is not entitled to a reduction in his
sentence. See Unitea’ States v. Berry, 618 F.3d 13, 17 (D.C. Cir. 2010) ("Section
1B1.10(a)(2)(B) of the Guidelines prohibits sentence modifications under § 3582(c)(2) if a
retroactive Guidelines amendment ‘does not have the effect of lowing the defendant’s applicable
guideline range."’) (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see, e.g., United States v. Lindsey, 556
F.3d 238, 244 (4th Cir.), cert. denz`ed, __ U.S. _, 130 S. Ct. 182 (2009); United States v. Lanier,
574 F.3d 668, 673 (9th Cir. 2009). In this case, Russell’s prior convictions for drug trafficking

offenses made him a "career offender" under Section 4B1.1 of the Guidelines, leaving the

2 In the absence of a majority opinion or a shared rationale adopted by a majority, Justice
Sotomayor’s opinion sets forth the holding in Freeman because it represents the narrowest
grounds for the result. Unitea' States v. Turner ___ F. Supp. 2d 4 2011 WL 5865490, at *5
(D.D.C. Nov. 21, 2011); accord United States v. Brown, 653 F.3d 337, 340 n.l (4th Cir. 2011).

2

applicable sentencing range unaffected by the amendment. Therefore, he may not avail himself
of the reduction in the base offense levels for cocaine base offenses brought about by the
amendment to the Guidelines. See Berry, 617 F.3d at 17-18 ("Because [the amendment] does not
lower the career-offender range, [the defendant] is ineligible for a sentence reduction if this is his
‘applicable guideline range."’).

For either of the foregoing reasons, Russell’s Motion must and shall be DENIED. The
Court has considered the remaining arguments tendered by the parties and finds them to be
without merit or superfluous in light of the Court’s reasoning above.

Furthermore, to the extent Russell’s Motion arises under 28 U.S.C. § 2255, "reasonable
jurists" could not debate whether the Motion should have been resolved differently or that the
issues merit further consideration. Slack v. McDanz'el, 529 U.S. 473, 484 (2000). Accordingly,
and because Russell has failed to make a substantial showing of the denial of a constitutional
right, no certificate of appealability shall issue from this Court. See 28 U.S.C. § 2253(0)(2);
Rules Governing Section 2255 Proceedings for the United States District Courts, Rule ll(a).

An appropriate Order accompanies this Memorandum Opinion.

Date: December 12, 2011 -
COLLEEN KO LAR-K LLY
United States District Judge

