UNITED STATES DISTRICT CoURT Fl E.ED

.§f'i.l"é 3 . Z?§§§

FOR THE DISTRICT OF COLUMBIA

 

)
UNITED STATES OF AMERICA, )
)
v. )

) Criminal Case N0. 93-365 (RCL)
DERRICK COOK, )
)
Defendant. )
)

MEMORANDUM OPINION

I. INTRODUCTION
Now before the Court comes defendant C00k’s motion [95] for the Court to reconsider its
November 25, 2008 ruling, which denied his motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582. The defendant’s motion will be denied.

g ANALYSIS
In his motion for reconsideration, the defendant attempts to distinguish the cases cited by

this Court in its memorandum opinion by stating that in those cases "the applicable guideline
range had not been reduced and the court had no authority under § 3582. Here, however, the
applicable guideline range has been reduced." (Def.’s Mot. for Reconsideration 2.) The
defendant flatly mischaracterizes the posture of the case; as stated in the memorandum opinion,
C00k’s applicable guideline range was not reduced because he was sentenced pursuant to a

statutory minimum sentence, not the sentencing guidelines.‘ After that fact is straightened out,

‘In its memorandum opinion of November 25, 2008, this Court stated that "[t]he
[sentencing] guidelines did not apply to Cook because the guideline range was lower than the

by the defendant’s own admission his motion for reconsideration has no merit because this Court
lacks the authority to reduce his sentence.

Since the Court has no authority to reduce the defendant’s sentence, the defendant’s
discussion of whether Booker would apply to a § 3582(c)(2) reduction is entirely irrelevant.
Nevertheless, the defendant disputes the Court’s statement that Booker would not apply to a §

35 82(c)(2) at considerable length, citing United Slates v. Hicks, 472 F.3d 1167, 1170 (9th Cir.
2007); Um'ted States v. Ragland, 568 F. Supp. 2d 19 (D.D.C. 2008) (Friedman, J.); and Um`ted
States v. Reid, N0. 04-415, 2008 WL 4826062 (D.D.C. Nov. 6, 2008) (Kessler, J.). This Court
has no occasion to revisit the reasons it has already given in holding that Booker would not apply
to a sentencing reduction under § 3582(0)(2) (See November 25, 2008 Mem. Op. [94] at 4-6);
the Court will only add that in the time since that decision the Tenth Circuit has concurred in

holding that Booker does not apply to a § 35 82 reduction.z

III. CONCLUSION

statutory minimum for his offense. If the guidelines did not apply in the first instance, a
retroactive revision of the guidelines does not affect Cook because l8 U.S.C. § 3582(0)(2)
confers no power on the district court to reduce a minimum sentence mandated by statute."
(Docket entry [92] at 5.) (citing cases).

zln one portion of the opinion, the Tenth Circuit states: "[T]he Sixth Amendment

concerns that gave rise to the Booker decision will not be replicated in sentence modification
proceedings. Given the narrow scope of sentence modification proceedings, there is no concern
that a district court in such a proceeding will make factual findings that in turn will raise a
defendant’s sentence beyond the level justified by ‘the facts established by a plea of guilty or a
jury verdict . . . .’ Booker, 543 U.S. at 244. Indeed, a district court in a sentence modification
proceeding is authorized only to ‘reduce the [originally imposed] term of imprisonment, 18
U.S.C. § 3582(c)(2), not to increase it. As a result, we conclude that Booker simply has no
bearing on sentencing modification proceedings conducted under § 35 82(c)(2)." United States v.
Rhoa'es, 549 F.3d 833, 840 (l0th Cir. 2008).

Cook was not sentenced pursuant to the sentencing guidelines but was instead correctly
sentenced pursuant to a statutory minimum sentence. Accordingly, the Court has no power under
l8 U.S.C. § 3582(c)(2) to modify his sentence. As a result, the defendant’s discussion of Booker
is irrelevant.3 The defendant’s motion for reconsideration will be DENlED.

A separate order shall issue this date.

SO ORDERED.

Zb,,, <. f»..am~ )/7,, /.,~»,

Chief Judge Royce C. Lamberth Date

3Even the law cited by defendant states that "[i]t is completely uncontroversial to note
that Booker is not itself grounds for a Section 35 82(c) motion for a reduction in sentence . . . ."
Um'ted States v. Ragland, 568 F. Supp. 2d l9, 22 (D.D.C. 2008) (Friedman, J.).

