                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
UNITED STATES OF AMERICA                  )
                                          )
     v.                                   )                 Criminal No. 06-CR-318 (ESH)
                                          )
RICARDO SELDON,                           )
                                          )
     Defendant.                           )
_________________________________________ )


                                    MEMORANDUM OPINION

       Before the Court is defendant Ricardo Seldon’s motion to reduce his sentence of

imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that a district

court may “reduce the term of imprisonment” 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 pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2); see U.S.S.G.

§ 1B1.10(a)(1). Defendant’s motion is based on Amendment 750 to the Sentencing Guidelines,

which lowered the offense levels for crack cocaine offenses, see U.S.S.G. App. C, amend 750

(Nov. 2011), and which applies retroactively. See U.S.S.G. § 1B1.10(c).

       Defendant, who was conviction of unlawful possession with intent to distribute 5 grams

or more of cocaine base, was initially sentenced to a term of imprisonment of 94 months, based

on a guidelines range of 78 to 97 months (offense level 27), with 60 months (the statutory

mandatory minimum) to be served consecutively to his sentence in another case, Criminal No.

05-0260. (Judgment in a Criminal Case, June 28, 2007 [ECF No. 31].) Thereafter, the

Sentencing Commission adopted Amendment 706, its first revision to the crack cocaine offense

levels. See U.S.S.G. App. C, amend. 706 (Nov. 2007). Amendment 706, which also applied
retroactively, reduced defendant’s sentencing range to 63 to 78 months (offense level 25). Based

on this lowered sentencing range, defendant filed a § 3582 motion to reduce his sentence.

Defendant sought both a reduction in his total term of imprisonment and a reduction in the

amount to be served consecutively to his sentence in Criminal No. 05-0260. The Court granted

the motion in part by reducing his sentence to 75 months, but did not alter the 60 months that had

to be served consecutively to the other sentence. (Order Regarding Mot. for Sentence Reduction

Pursuant to 18 U.S.C. § 3582(c)(2), Feb. 24, 2010 [ECF No. 38].)

       Defendant’s sentencing range was again lowered by Amendment 750, so that if he were

sentenced today his sentencing range would be 51 to 63 months (offense level 23). Defendant

seeks a sentence of time served, which would fall within the new range but would be less than

the 60 month statutory mandatory minimum. Defendant argues that he is entitled to the benefit of

this further reduction, despite the statutory mandatory minimum that applied at the time he was

sentenced, because of the Fair Sentencing Act of 2010 (“FSA”), which took effect on August 3,

2010. The FSA increased the amount of crack cocaine necessary to support a 60 month

mandatory minimum sentence, so that if defendant were sentenced today he would not be subject

to a statutory mandatory minimum sentence. The Supreme Court has held that the FSA’s

reduced penalties apply retroactively to all defendants sentenced on or after August 3, 2010.

Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012). Defendant argues that “it follows directly

from the Supreme Court’s analysis that the FSA’s more lenient penalties also apply to defendants

who seek sentence reductions pursuant to the retroactive FSA guideline amendments.” (Def.’s

Mot. at 3.) The government does not oppose a reduction to 60 months, but opposes any further

reduction on the on the ground that the FSA does not apply retroactively to defendants seeking §

3582(c) sentence reductions who were originally sentenced before August 3, 2010.

                                                2
        In a recent decision, the Court of Appeals for the D.C. Circuit held that the FSA does not

apply to defendants who were sentenced before August 3, 2010, even when the case is still on

direct appeal. See United States v. Fields, No. 09-3137, __ F.3d __, 2012 WL 5457682, at *3-4

(D.C. Cir. Nov. 9, 2012); see also United States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir.

2012). The decision in Fields is a clear rejection of defendant’s argument and controlling

precedent for this Court. Accordingly, defendant’s sentence can be reduced to 60 months, but no

more.

        For the reasons stated, the Court will grant defendant’s motion to reduce his sentence to

60 months, but will deny any further reduction. A separate Order accompanies this

Memorandum Opinion.



                                                                /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

Date: December 3, 2012




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