                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA,

      Plaintiff,

          v.                                                 Criminal No. 00-250 (CKK)
    RANDY McKEEVER,

      Defendant.



                                  MEMORANDUM OPINION
                                      (June 26, 2017)

         Presently before the Court is Defendant Randy McKeever’s [42] Letter Regarding Detainer

Placed on Defendant, which the Defendant was granted leave to file. See 12/16/2016 Letter [42]

at 1 (noting that leave to file was granted on 12/20/2016). The Defendant, who is proceeding pro

se, requests this Court to reduce his sentence by permitting his 18-month term of imprisonment to

run concurrently, rather than consecutively, with his Maryland state sentence. Upon a review of

the parties’ submissions, 1 the relevant authorities, and the record as a whole, the Court finds that

the Defendant is not entitled to the requested relief, and the Court shall DENY the relief requested

in the Defendant’s [42] Letter.

                                      I. BACKGROUND

         A. Procedural History

         On December 5, 2000, Defendant Randy McKeever (“Defendant” or “Mr. McKeever”)

pled guilty to one count of Unlawful Possession of a Firearm or Ammunition by a Convicted Felon.


1
  Def.’s Letter, ECF No. [42]; Govt.’s Response to Def.’s Letter (“Govt.’s Opp’n.”), ECF No.
[45]. The Defendant filed no reply.
The Court sentenced Mr. McKeever on June 21, 2001, to 12 months imprisonment, with the term

to run concurrent with Defendant’s imprisonment under any previous state or federal sentence,

followed by three years of supervised release. See 6/21/2001 Minute Order. While the Defendant

was on his supervised release, he was charged with and convicted of voluntary manslaughter and

a firearm count in Maryland, and he was sentenced to a thirty-year term of imprisonment, which

he is currently serving. On June 17, 2008, Magistrate Judge John Facciola held a revocation

hearing on Defendant’s violation of his supervised release, where Defendant conceded the

violation and acknowledged that his Maryland conviction constituted a Grade A violation. See

6/13/2008 Minute Order; Govt.’s Opp’n, Ex. A (Magistrate Judge Facciola’s 6/17/2008 Report

and Recommendation [40]) at 1.       Magistrate Judge Facciola noted that the recommended

Guidelines range for the Defendant was 18 to 24 months, but he recommended that Mr. McKeever

be sentenced to 18 months, and he rejected Defendant’s request that such sentence be concurrent

with the Maryland sentence. Ex. A [40] at 1.

       This Court adopted the Report and Recommendation on June 26, 2008. Defendant was

sentenced to 18 months imprisonment relating to his violation of supervised release, and such

sentence was to run consecutively with the Maryland sentence. See 6/26/2008 Minute Entry. At

the time the Defendant was sentenced, the Court acknowledged that the new sentence could “result

in some detainer” while Defendant was serving his Maryland sentence. See Govt.’s Opp’n, Ex. B

(June 26, 2008 sentencing transcript) [47] at 18. The Court elected however to impose a

consecutive sentence on grounds that “there should be a sentence that [Mr. McKeever] actually

serves that relates to this case.” Ex. B [47] at 8. The Court’s [41] July 15, 2008 Judgment and

Commitment Order revoked the Defendant’s supervised release and sentenced Mr. McKeever to

“[e]ighteen (18) months to be served consecutively to any sentence that the defendant is then

                                               2
serving.” See Govt.’s Opp’n, Ex. C (7/15/2008 Judgment and Commitment Order) [41].

        On December 20, 2016, this Court granted Defendant leave to file the instant Letter, in

which Mr. McKeever requests that his 18-month sentence following the revocation of his

supervised release be changed to run concurrently, instead of consecutively, with the sentence he

is serving in Maryland. The Government filed a Response to the Defendant’s Letter on February

17, 2017.

        B. Defendant’s Request for a Sentence Reduction

        Defendant requests that the sentence imposed for his violation of supervised release, which

was set by this Court, be modified so that it runs concurrently, instead of consecutively, with his

Maryland sentence. Defendant has served about 11 years of his 30-year term, and he contends that

his consecutive sentence acts as a detainer, which prevents him from participating in certain

rehabilitative activities offered through the Department of Corrections. Defendant asserts that “a

sentence may be modified or corrected on review, or the sentencing courts may run a consecutive

sentence concurrently after the final sentence is imposed.” 2 Def.’s Letter at 1. Mr. McKeever’s

Letter requesting a change in his sentence may be construed as a motion requesting a sentence

modification under 18 U.S.C. § 3582(c). See generally United States v. Ingram, 908 F. Supp.2d

1, at *6 (D.D.C. 2012) (construing one of the defendant’s requests for relief as a motion made

pursuant to 18 U.S.C. § 3582(c)(2)). “The Court is not bound by a pro se litigant’s characterization

of his cause of action [but] [r]ather, a court must determine the proper characterization of a filing

by the nature of the relief sought.” Williams v. Gonzalez, 567 F. Supp. 2d 148, 149 (D.D.C. 2008)



2
 Defendant cites United States v. Booker, 543 U.S. 220 (2005) to support his request for a sentence
reduction. It is unclear whether Mr. McKeever is referencing Booker on constitutional grounds or
whether he contends that the Sentencing Guidelines are merely advisory rather than mandatory. In either
case, Booker provides no basis for the Court to grant a sentence reduction.
                                                   3
(citing McLean v. United States, 2006 WL 543999, at *1 (D.D.C. Mar. 3, 2006)). Accordingly,

the Court will treat the Defendant’s [42] Letter (“Def.’s Mot.”) as a motion to be analyzed in the

context of 18 U.S.C. § 3582(c). 3

                                     II. LEGAL STANDARD

       Pursuant to 18 U.S.C. § 3582, which addresses modification of a term of imprisonment:

       The court may not modify a term of imprisonment once it has been imposed except
       that - -

               (1) in any case - -

                       (A) the court, upon motion of the Director of the Bureau of Prisons,
                       may reduce the term of imprisonment . . . , after considering the factors set
                       forth in section 3553(a) to the extent they are applicable, if it finds
                       that - -

                               (i) extraordinary and compelling reasons warrant such a reduction;
                               or

                               (ii) the defendant is at least 70 years of age, has served at least 30
                               years in prison, pursuant to a sentence imposed under section
                               3559(c), for the offense or offenses for which the defendant is
                               currently imprisoned, and a determination has been made by the
                               Director of the Bureau of Prisons that the defendant is not a danger
                               to the safety of any other person or the community, as provided
                               under section 3142(g);

                               and that such reduction is consistent with applicable policy
                               statements issued by the Sentencing Commission; and

                       (B) the court may modify an imposed term of imprisonment to the extent
                       otherwise expressly permitted by statue or by Rule 35 of the Federal Rules
                       of Criminal Procedure; and

               (2) in the case 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), upon motion of the defendant or the
               Director of the Bureau of Prisons, or on its own motion, the court may reduce the
               term of imprisonment, after considering the factors set forth in section 3553(a) to

3
 The Government agrees that Defendant’s Letter should be “construed as a pro se motion for a sentence
modification under 18 U.S.C. §3582(c) . . . .” Govt.’s Opp’n at 1.
                                                  4
               the extent that they are applicable, if such a reduction is consistent with applicable
               policy statements issued by the Sentencing Commission.


18 U.S.C. §3582(c).

                                         III. ANALYSIS

       Generally, a federal court “may not modify a term of imprisonment once it has been

imposed.” 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 819 (2010).

However, section 3582(c) of Title 18 of the United States Code provides three exceptions to this

general rule. Specifically, the Court is authorized to modify a term of imprisonment once imposed

only under one of these circumstances: (1) upon motion by the Director of the Bureau of Prisons;

(2) when expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) where

the applicable sentencing guideline range has been retroactively lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(1)-(2); see United States v. Morris, 116 F.3d 501, 504 (D.C.

Cir. 1997) (“Under 18 U.S.C. § 3582(c) a court may modify a sentence only in three circumstances.

. . .”) The Government argues that none of these exceptions to the general rule are applicable here

and, accordingly, “the Court lacks jurisdiction to modify defendant’s sentence in the manner he

requests.” Govt.’s Opp’n at 3.

       First, the Director of the Bureau of Prisons has not filed a motion requesting that Mr.

McKeever’s sentence be reduced. Second, the Court is not expressly permitted by statute or

Federal Rule of Criminal Procedure 35 to reduce Mr. McKeever’s sentence. Mr. McKeever has

not pointed to any statutory provision that would allow the Court to reduce his sentence. Further,

Federal Rule of Criminal Procedure 35 only authorizes the reduction of a sentence within 14 days

of sentencing to correct a clear error, or upon motion of the government if a defendant, after

sentencing, provided substantial assistance to the government. Fed. R. Crim. Proc. 35(a)-(b).

                                                 5
Neither of the provisions of Rule 35 is applicable here. Finally, there has been no change in the

applicable sentencing guideline range that would benefit Mr. McKeever.

       Defendant focuses on the fact that his consecutive sentence acts as a detainer during the

time he is serving his Maryland sentence, and thus, he is unable to participate in some of the

rehabilitative “vocational training shops” and “drug programs” that require an inmate to have no

detainers. Def.’s Mot. at 1. Defendant appears to rely upon Section 3582(c)(1)(A)(i), but under

that provision, the Court may modify a defendant’s sentence on the motion of the Bureau of Prisons

only if “extraordinary and compelling reasons” warrant such a reduction. The Bureau of Prisons

has not made such motion in this case nor has the Defendant alleged extraordinary circumstances,

and accordingly, no sentencing reduction is warranted. See generally United States v. Bynoe, No.

CR. 01-559-03 (TFH), 2006 WL 1071481, at *3 (D.D.C. Apr. 21, 2006) (finding that the

defendant’s argument under 18 U.S.C. § 3582(c) “must fail because [defendant’s] asserted

rehabilitation is not an authorized reason to reduce his sentence.”)

       Furthermore, the Government notes that “defendant raised this precise argument at his June

2008 sentencing, and the Court rejected it,” in favor of imposing an independent sentence for

Defendant’s supervised release violation. Govt’s Opp’n at 4. The Court acknowledged that the

consecutive sentence could serve as a detainer but concluded that “putting [the sentences] together

does not accomplish that particular purpose” of having the Defendant serve a sentence that relates

to the case in this Court. Ex. B [47] at 8. Defendant’s Letter, construed by this Court as a motion

for sentencing reduction under 18 U.S.C. § 3582(c), requires one of three factual or legal

predicates, of which Defendant has alleged none. For the foregoing reasons, the Court finds that

Defendant’s [42]



                                                 6
Letter requesting a sentencing reduction must be denied. An appropriate Order accompanies this

Memorandum Opinion.



                                                            /s/____       _____
                                                  COLLEEN KOLLAR-KOTELLY
                                                  UNITED STATES DISTRICT JUDGE




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