                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      v.                            )                Criminal No. 07-0084 (PLF)
                                    )
JUAN STEWART,                       )
                                    )
            Defendant.              )
____________________________________)


                           MEMORANDUM OPINION AND ORDER

               On January 11, 2008, defendant Juan Stewart was sentenced to a five-year term of

imprisonment after he pled guilty to a charge of Unlawful Possession with the Intent to Distribute

Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). As part of his plea

agreement, Mr. Stewart agreed that he would be held accountable for 29.6 grams of cocaine base.

Under 21 U.S.C. § 841(b)(1)(B)(iii), a five-year term of imprisonment was the minimum

sentence that could be imposed on a defendant in Mr. Stewart’s position. See 21 U.S.C.

§ 841(b)(1)(B)(iii) (2008). In other words, it was a mandatory sentence below which the Court

had no discretion to go.

               On June 9, 2009, the Court announced in a criminal case unrelated to this one that

it would from that point forward sentence defendants convicted of crack cocaine offenses using

the Sentencing Guidelines formulated for powder cocaine offenses. See United States v. Lewis,

623 F. Supp. 2d 42, 47 (D.D.C. 2009). This change in sentencing practice meant that some crack

cocaine offenders would receive substantially lower sentences than would otherwise be the case.

See, e.g., id. at 43, 48 (noting that, under the Guidelines for crack offenses, Mr. Lewis would
have a Guidelines sentencing range of 151 to 188 months, whereas under the Guidelines for

powder cocaine offenses, his recommended sentence would be 46 to 57 months).

               On July 15, 2009, shortly after the Court’s announcement in Lewis, Mr. Stewart

filed a motion for a reduced sentence under 18 U.S.C. § 3742, asking that the Court resentence

him using the Guidelines for powder cocaine. Before the Court could rule on that motion, Mr.

Stewart submitted another filing, this time asking that his motion for a reduced sentence be

stayed while Congress considered passing legislation that would reduce sentences for crack

offenses to make them more comparable to sentences imposed for powder cocaine offenses. The

Court accordingly stayed Mr. Stewart’s motion. On August 3, 2010, President Obama signed

into law the Fair Sentencing Act (“FSA”), which reduced, but did not eliminate, the disparities

between sentences imposed for crack cocaine and powder cocaine offenses. See Pub. L. No.

111-220, 124 Stat. 2372. Since the FSA marked the culmination of the attempts by Congress to

address those sentencing disparities, the Court now will lift the stay on Mr. Stewart’s motion and

address its merits.

               Mr. Stewart’s sentence cannot be reduced. First, the Court is not authorized by

18 U.S.C. § 3742 or by any other statute to resentence a defendant to give him the benefit of a

change in the Court’s sentencing practices that occurred after the defendant’s conviction and

original sentence became final. See Dillon v. United States, 130 S. Ct. 2683, 2687 (2010) (“A

federal court generally ‘may not modify a term of imprisonment once it has been imposed.’”

(citing 18 U.S.C. § 3582(c))); United States v. Douglas, 746 F. Supp. 2d 220, 224 & n.20

(D. Me. 2010) (the FSA does not affect criminal sentences that became final before the FSA’s

effective date). Second, the term of imprisonment to which Mr. Stewart was sentenced was then



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and remains now, even after the passage of the FSA, the mandatory minimum sentence permitted

by statute. See 21 U.S.C. § 841(b)(1)(B)(iii) (2011) (requiring defendants convicted of an

offense involving more than 28 grams of crack cocaine to serve at least five years in prison).

Accordingly, it is hereby

               ORDERED that the stay imposed on these proceedings is LIFTED; and it is

               FURTHER ORDERED that [22] Mr. Stewart’s Motion to Reduce Sentence

Pursuant to 18 U.S.C. § 3742 is DENIED.

               SO ORDERED.



                                                             /s/___________________________
                                                             PAUL L. FRIEDMAN
                                                             United States District Judge
DATE: June 28, 2011




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