UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )
)

vs. ) Crim. No. 00-0050 (TFH)
)
)
ANTOWAN THORNE, )
Defendant. )
)
)
)

MEMORANDUM OPINION

Pending before the Court is defendant Antowan Thome’s Motion to Correct Sentence and for
Collateral Review, [ECF No. 64] ("Def. Mot"). After careful consideration of the motion, the related
legal memoranda in support and in opposition, and the entire record of this case, this Court now
DENIES defendant’s motion. An appropriate Order will accompany this Opinion.

I. Background

On September l5, 2000, Antowan Thorne pled guilty to unlawful possession with intent to
distribute five grams or more of cocaine base in violation of 21 U.S.C. § 84l(a)(l) and 21 U.S.C. §
841(b)(l)(B)(iii) (Count One) and unlawful possession of a firearm and ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(l) (Count Three). On May l, 2001, this Court sentenced
him to 80 months’ incarceration for each count, to be served concurrently. [ECF No. 36]. Defendant
was also sentenced to four years of supervised release on Count One and three years of supervised
release on Count Three, to be served concurrently. Defendant’s supervised release began on April 6,
2006.

In October of 2006, defendant was arrested and for conspiracy to obstruct justice in violation
of 22 D.C. Code §§ l805a and 722(a)(2)(A). According to the indictment filed in the Superior Court

for the District of Columbia, defendant conspired to intimidate or harm government witnesses

testifying in the murder prosecution of Thorne’s cousin, George Phillip Foreman Ill. Defendant was
convicted on a plea of guilty in November or 2007. Pursuant to his plea agreement, Mr. Thome was
sentenced in Superior Court to 36 months in prison. Mr. Thorne’s conviction represented a violation
of the terms of his supervised release, specifically, that he not commit any federal, state, or local
offenses. This Court found that defendant had committed a Class A violation of his supervised
release, as defined in U.S.S.G. § 4Bl.2(a), because Mr. Thorne’s violation was a crime of violence
punishable by more than one year in prison. Mr. Thome had a criminal history category of III,
resulting in a Guidelines range of 30-37 months. See U.S.S.G. § 7Bl .4(1)(2). Taking into account the
Guidelines and the record of this case, this Court sentenced Defendant to 30 months of imprisonment
consecutive the tenn of imprisonment he was then serving in Superior Court. See [ECF No. 59].

Mr. Thome appealed to the D.C. Circuit, arguing that his sentence was invalid on a number of
grounds See [ECF No. 58]. Defendant claimed that the sentence imposed for the violation of his
supervised release breached his plea agreement in Superior Court and violated his right to Due
Process. Appellant Brief, United States v. Thorne, 08-3109 (D.C. Cir. July 28, 20l0) at 2-3, 17 [ECF
No. 1257989]. Mr. Thome also argued that this Court abused its discretion in sentencing him to 30
months in prison concurrent with his Superior Court sentence, id. at 7-8; that his sentence violated his
Sixth Amendment right to a jury trial under Booker, id. at 8; that his sentence violated the Ex Post
Facto Clause, id. at 9; that his sentence violated Double Jeopardy Clause, id. at 17-]8; and that he is
entitled to a reduction of his sentence under 18 U.S.C. § 3582(c)(2), id. at l7. On January l2, 2013,
the D.C. Circuit affirmed this Court’s judgment in a brief per curium opinion. United States v.
Thorne, 08-3109 (D.C. Cir. Jan 12, 20l0) at l-2.

Mr. Thome filed this motion in September 201 O, while his direct appeal was pending. As in
his direct appeal, Mr. Thorne argues that his sentence violates the Ex Post Facto Clause, the Double

Jeopardy Clause, his right to a jury trial, and was a breach of his Superior Court plea agreement. In

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addition, defendant seeks a reduction of his sentence under 18 U.S.C. § 3582(0)(2) based on a
reduction of the Guidelines for offenses involving cocaine base.
II. Discussion
A. Standard of review

A person in federal custody can attack his sentence and claim a right of release by petitioning
the sentencing court and requesting the sentence be vacated, set aside or corrected under 28 U.S.C. §
2255(a). The petitioner must show that the court lacked jurisdiction to impose the sentence or that
the sentence is (1) "imposed in violation of the Constitution or laws of the United States," (2) "in
excess of the maximum authorized by law" or (3) "otherwise subject to collateral attack.” Id.
Because "[r]elief under § 2255 is an extraordinary remedy[,] . . . ‘a prisoner must clear a significantly
higher hurdle than would exist on direct appeal."’ United States v. Zakas, 793 F.Supp.2d 77, 80
(D.D.C. 201 l) (quoting United States v. Frady, 456 U.S. 152, 166 (1982)). A defendant has the
burden to prove a § 2255 claim by a preponderance of the evidence. Winchester v. United States, 477
F.Supp.2d 81, 83 (D.D.C.2007) (citing United States v. Simpson, 475 F.2d 934, 935 (D.C.Cir.1973)).

A district court must hold an evidentiary hearing on a § 2255 motion "[u]nless the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28
U.S.C. § 2255(b). A hearing is required "[o]nly where the § 2255 motion raises detailed and
specific factual allegations whose resolution requires information outside of the record or the
judge's personal knowledge or recollection." Moore v. United Szates, 881 F. Supp. 2d 125, 136
(D.D.C. 20l2) (quoting United States v. Pollard, 959 F.2d 1011, 1031 (D.C.Cir.l992)). When the
same judge who tried the case also considers the § 2255 motion, the decision whether to hold a
hearing is committed to the district court’s discretion United States v. Quattlebaum, 933 F. Supp.
2d 208, 214 (D.D.C. 2013) (citing United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.l996));

see also United States v. Sayan, 968 F.2d 55, 66 (D.C. Cir. 1992). Because defendant’s petition

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raises no issues of fact, and because it is clear from his petition that he is not entitled to the relief
he seeks, this Court declines to hold an evidentiary hearing.

B. The D.C. Circuit has rejected the majority of defendant’s arguments

"It is well established in the federal circuits that a federal prisoner cannot raise collaterally
any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening
change in the law." Brodi'e v. United States, 626 F. Supp. 2d 120, 122 (D.D.C. 2009) (quoting United
States v. Greene, 834 F.2d l067, 1070 (D.C.Cir.1987)). Defendant raises several of the same
arguments_specifically, that his sentence violates the Ex Post Facto Clause, the Double Jeopardy
Clause, his right to a jury trial, and was a breach of his Superior Court plea agreement_that were
rejected by the D.C. Circuit.l Defendant cites no intervening change in law nor any other reason to
depart from the rule that issues decided on direct appeal cannot be relitigated through a § 2255
motion. Therefore, this Court rejects defendant’s arguments based on the Ex Post Facto Clause, the
Double Jeopardy Clause, the Sixth Amendment, and an alleged breach of his Superior Court plea
agreement. However, because the D.C. Circuit did not directly address defendant’s argument that 18
U.S.C. § 3582(0)(2) entitles him to a reduced sentence, this Court will briefly do so now.

C. Amendments to the Sentencing Guidelines relating cocaine base do not
entitle defendant to a reduced sentence for violation of supervised release

Defendant, relying on 18 U.S.C. § 3582(c)(2), contends he is entitled to a reduction of his 30-

month sentence for violating the terms of supervised release because the Sentencing Guidelines

' The D.C. Circuit found that defendant’s sentence was "reasonable in view of the sentencing factors in 18 U.S.C. §
3553(a) the policy statements of the Sentencing Guidelines" and "consistent with the Sixth Amendment because the
court did not treat the Guidelines as mandatory." Thorne, 08-3109 (D.C. Cir. Jan 12, 2010) at 1. 'l`here was no Ex Post
Facto violation because "the Guidelines provisions defendant invoked as bases for the alleged violation do not . . .
‘impose[] a punishment for an act which was not punishable at the time it was committed’ or otherwise ‘impose[]
additional punishment to that then prescribed."’ Id. (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981)). In addition,
the D.C. Circuit held defendaiit’s the sentence was consistent with the Double Jeopardy Clause because it is "not a new
punishment but was instead part of the punishment for the original conviction." Thorne, 08-3109 at 1 (citing Johnson
v. United States, 529 U.S. 699-701 (2000)). Finally, the D.C. Circuit held that defendant had not shown that the
government breached defendant’s plea agreement in Superior Court. Thorne, 08-3109 at 1-2 (citing United States v.
Valdez-Sanchez, 414 F. 3d 539, 542 (Sth Cir. 2005).

regarding conspiracy to distribute cocaine base were reduced after he committed the original offense
in 2000 but before he committed the violation of his supervised release in 2008. Def. Mot. at 1.
Section 3582(c)(2) creates an exception to the general rule that a court may not modify an imposed
sentence if the defendant meets two requirements. First, the defendant must have been sentenced
"based on a sentencing range that has subsequently been lowered." United States v. Berry, 618 F.3d
13, 16 (D.C. Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2). Second, a reduction in the defendant's
sentence must be "consistent with applicable policy statements issued by the Sentencing
Commission." la',' see also U.S.S.G. § 1B1.10 (codifying § 3582(c)(2)).

Defendant’s argument is not supported by case law or the Guidelines. When a defendant is
sentenced to a term of imprisonment for a violation of supervised release, the Court considers
Chapter 7 of the Sentencing Guidelines. Any amendments to the Guidelines provisions governing the
underlying offense are irrelevant at that stage in the proceedings. The commentary to the Guidelines
is perfectly clear: "Only a tenn of imprisonment imposed as part of the original sentence is
authorized to be reduced under this section. This section does not authorize a reduction in the term of
imprisomnent imposed upon revocation of supervised release." U.S.S.G. § 1B1.l0, Application Note
5(A);2 see also United States v. Rivera, 332 F. App'x 575, 576 (11th Cir. 2009) ("The commentary to
the Guidelines thus explicitly provides that a defendant serving a term imposed upon revocation of
supervised release is not eligible for § 3582(0)(2) relief."); United States v. Cujf 338 F. App'x 161,
163 (3d Cir. 2009).

Even if amendments to the Guidelines for defendant’s underlying offenses were relevant,
defendant would still not be entitled to a reduction under § 3582(c)(2) because the amendments to the

Guidelines affected only one of defendant’s two counts of conviction. At the time that Mr. Thome

2 The commentary to U.S.S.G. § 1B1.l0, is policy statement this Court is obligated to follow under § 3582(¢)(2). United
States v. Morales, 590 F.3d 1049, 1051 (9th Cir. 2010); see also Di[lon v. United States, 560 U.S. 817, 821 (2010)
(holding that § 3582(c)(2)’s requirement that sentence reductions be consistent with the Commission’s policy statements
does not implicate Booker).

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committed the violation, he was serving a concurrent sentence of three years supervised release for
unlawful possession of a fireann and ammunition by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). The applicable Guidelines for § 992 have not been reduced since defendant committed
the underlying offense, and in fact have been made more severe for certain violations. Compare

U.S.S.G. § 2K2.1 (2000 ed.) with U.S.S.G. § 2K2.1 (2008 ed.). Defendant’s violation of §
922(g)(1) is a Class A felony, and because defendant was found to have committed a Grade A
violation of his supervised release and had a Crimina1 History Category of III, the applicable
Guidelines range would have been 30-37 months whether or not defendant’s prior drug conviction
was taken into account at all. See U.S.S.G. § 7B1.4.

III. Conclusion

For the reasons stated above, defendant’s Motion to Correct Sentence and for Collateral

Review, [ECF No. 64], is DENIED.

SO ORDERED.

september 4, 2014   y “ %

Thomas F. Hogan
UNITED STATES DisTRiC E

