                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

           v.                                             Criminal No. 00cr383-01 (CKK)
 DWAYNE KEITH SUMNER,

    Defendant.


                                 MEMORANDUM OPINION
                                   (September 28, 2016)

       Presently before the Court is Defendant Dwayne Keith Sumner’s [42] Letter which the

Court previously indicated it shall construe as a motion seeking a reduction of sentence and granted

leave to file on the docket. See Order (Mar. 1, 2016), ECF No. [43]. Mr. Sumner, who is

proceeding pro se, argues that his sentence is unjust and unreasonable under the circumstances and

requests that the Court reduce his sentence. The Government opposes Mr. Sumner’s request.

Upon a searching review of the parties’ submissions, 1 the relevant authorities, and the record as a

whole, the Court finds that Mr. Sumner is not entitled to the requested relief. Accordingly, the

Court shall DENY Mr. Sumner’s [42] motion for a reduction of sentence.

                                       I. BACKGROUND

       On October 25, 2000 at approximately 9:15 a.m., Mr. Sumner entered the outer foyer of

the SunTrust Bank located at 2 Massachusetts Avenue, NW, and wrote a demand letter. 2 The

demand letter, which he then handed to a teller, demanded money and declared that Mr. Sumner




       1
         Def.’s Ltr. (“Def.’s Mot.”), ECF No. [42]; Govt.’s Opp’n to Def.’s Mot. to Reduce
Sentence (“Govt.’s Opp’n”), ECF No. [44]. Mr. Sumner filed no reply.
       2
         The following account of the facts underlying Mr. Sumner’s conviction are taken from
the Factual Proffer in Support of the Guilty Plea in this matter.
had a bomb. At the time, Mr. Sumner had a black duffle bag strapped over his shoulder. The teller

activated two silent alarms and promptly went to the back of the bank away from the window. Mr.

Sumner did not wait for the teller to return and, rather, left the bank. He later was stopped at on

the 400 block of K Street, NW. Mr. Sumner confessed in writing and orally to law enforcement

officers that he intended to rob the bank. Surveillance cameras captured clear pictures of Mr.

Sumner inside the bank, his fingerprints were identified on the demand note which was written in

blue ink, and a blue ink pen was recovered from Mr. Sumner’s pocket.

       On November 15, 2000, Mr. Sumner was indicted on one count of attempted bank robbery

in violation of 18 U.S.C. § 2113(a). On May 3, 2001, Mr. Sumner entered into a written plea

agreement with the government whereby he agreed to plead guilty to an Information charging one

count of attempted armed bank robbery in violation of § 2113(a) and (d). Govt.’s Opp’n, Ex. 2

(Plea Agmt.) at 41-46, ECF No. [44-1]. As part of the terms of the plea agreement, the government

indicated it would not seek any further criminal charges against Mr. Sumner for the any acts or

conduct relating to the events set out in the Information and Factual Proffer. Moreover, the

government withdrew its Notice of Mandatory Life Imprisonment Upon Conviction Pursuant to

18 U.S.C. § 3559(c)(4). 3 Id. at 42. The plea agreement provided:

       Pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure [Mr.
       Sumner] and the Government agree that the appropriate sentence for the offense to
       which your client is pleading guilty is a twenty-five year sentence of imprisonment
       followed by a five year period of supervised release . . . . If the Court accepts the
       plea agreement and the specific sentence agreed upon by the parties, then the Court
       will embody in the judgment and sentence the disposition provided for in this plea
       agreement, pursuant to Rule 11(e)(3) . . . .

Id. The Court conducted a plea colloquy on May 3, 2001, and ultimately accepted Mr. Sumner’s



       3
         Defendant had prior convictions for rape and robbery and a separate conviction for
robbery involving a bank.
                                                2
guilty plea and the parties’ agreed-upon sentence as described in the plea agreement as reasonable.

On July 26, 2001, the Court sentenced Mr. Sumner to a twenty-five year term of imprisonment

followed by a five-year period of supervised release. Mr. Sumner did not file a direct appeal of

his conviction or sentence. On July 24, 2002, Mr. Sumner filed a Motion Under 28 USC § 2255

to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody which the Court denied

pursuant to a Memorandum Opinion and accompanying Order. See Mem. Op. (Jun. 26, 2004);

Order (Jun. 26, 2004). On April 25, 2005, Mr. Sumner filed an Application for Certificate of

Appealability which the Court denied pursuant to a Memorandum Opinion and accompanying

Order. See Mem. Op. (May 20, 2005), ECF No. [38]; Mem. Op. (May 20, 2005), ECF No. [39].

Mr. Sumner now moves to reduce his sentence.

                                       II. DISCUSSION

       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). None of these exceptions to the general rule are

applicable here and, accordingly, the Court must deny Mr. Sumner’s request.

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

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

Rule of Criminal Procedure 35 to reduce Mr. Sumner’s sentence. Mr. Sumner has not pointed to

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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). Neither of the provisions

of Rule 35 is applicable here.

       Finally, the applicable guideline range has not been retroactively lowered by the

Sentencing Commission and Mr. Sumner was sentenced above the applicable guideline range.

Indeed, Mr. Sumner’s sentence was imposed in light of the parties’ Rule 11(e)(1)(C) (now Rule

11(c)(1)(C)) plea agreement and the Court expressly departed from the guideline range in imposing

Mr. Sumner’s sentence. Pursuant to the terms of that plea agreement, the parties agreed that a 25-

year (300-month) period of incarceration was an appropriate sentence for attempted armed bank

robbery, the offense to which Mr. Sumner pled guilty. The Court accepted the parties’ plea

agreement and ultimately sentenced Mr. Sumner to the agreed-upon 25-year term of imprisonment

after conducting a plea colloquy, reviewing the Presentence Investigation Report, and describing

its basis for the sentence on the record during the sentencing hearing. In imposing this sentence,

the Court noted that imprisonment range under the guidelines was 188 to 235 months. However,

the Court departed from the guideline range, specifically noting in the Statement of Reasons that

there was a Rule 11(e)(1)(C) plea and indicating: “As part of plea, life papers were withdrawn.

Sentenced to statutory maximum.” Judgment (Aug. 9, 2001) at 7. As such, while the Court

considered the guideline range, it ultimately elected to sentence Mr. Sumner above that range in

light of the parties’ plea agreement and after its own independent consideration as to whether to

accept the parties’ agreed-upon sentence as appropriate. Moreover, as the government notes in its

opposition, the guideline range for attempted armed bank robbery has not been subsequently

                                                 4
lowered by the United States Sentencing Commission.            Compare U.S.S.G. § 2B3.1 with

Presentence Investigation Report at 5 (Offense Level Computation) (both setting forth a base

offense level of 20 pursuant to U.S.S.G. § 2B3.1, a 2-point increase because the offense involved

the property of a financial institution pursuant to U.S.S.G. § 2B3.1(b)(1), and a 2-point increase

because the offense involved a threat of death pursuant to U.S.S.G. § 2B3.1(b)(2)(F)).

Accordingly, there is no valid basis for the Court to reduce Mr. Sumner’s sentence pursuant to 18

U.S.C. § 3582(c) and Mr. Sumner has not provided the Court with any other authority under which

it may reduce his sentence.

       Although the Court has found that Mr. Sumner is ineligible for a sentence reduction, the

Court shall briefly address Mr. Sumner’s specific objection to his sentence. Mr. Sumner cites to

the United States District Court for the Eastern District of New York’s opinion in United States v.

Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014), in support of his argument that his sentence is

unjust and should be reduced. The decision in Holloway does not provide the Court with a basis

to reduce Mr. Sumner’s sentence. In Holloway, the defendant was charged with three violations

of 18 U.S.C. § 924(c) related to three armed carjackings committed by the defendant and an

accomplice over a two-day span. Id. at 312. After rejecting an offer to plead guilty to one § 924(c)

violation, the defendant proceeded to trial and was convicted of three § 924(c) offenses. Id. The

defendant was sentenced to a total prison term of 57 years and 7 months, in part, because § 924(c)

required certain mandatory consecutive sentences for multiple violations. Id. at 312-13. The court

in Holloway noted that the difference between the defendant’s sentence if he had accepted the plea

agreement and as imposed after trial was 42 years in prison. Id. at 313. The court also noted other

additional facts including the sentence imposed on the defendant’s accomplice (27-month term of

imprisonment), various programs and classes that the defendant participated in while incarcerated,

                                                 5
and the defendant’s disciplinary record since his incarceration. Id. at 313-14. Further, the court

noted its view of the “harsh impact” of § 924(c) in sentencing in light of the mandatory sentences,

enhancements for multiple § 924(c) convictions, and the requirement that sentences be served

consecutively. Id. at 312.

       In Holloway, the defendant moved to reopen his § 2255 proceeding under Federal Rule of

Civil Procedure 60(b) and, approximately nineteen years after the defendant began serving his

sentence, 4 the government ultimately withdrew its opposition to Rule 60(b) motion and indicated

that it did not oppose the granting of the § 2255 motion for the purpose of vesting the court with

the authority to vacate two of the defendant’s § 924(c) convictions. Id. at 314-15. Here, the

government opposes Mr. Sumner’s request that his sentence be reduced and the Court has found

no legal basis that would vest it with the authority to grant Mr. Sumner’s request. The Court

further notes that unlike the facts in Holloway where the defendant was sentenced to a much

lengthier term of imprisonment because he rejected the government’s plea offer and proceeded to

trial in light of the three § 924(c) violations, Mr. Sumner is now serving a term of imprisonment

that he agreed was reasonable for the offense of attempted armed bank robbery as part of the terms

of his plea agreement. The consequences of accepting such a plea offer were fully described to

Mr. Sumner on the record during the plea hearing held in this matter. See generally Govt.’s Opp’n,

Ex. 1 (Tr. of Plea Hrg.) at 1-40, ECF No. [44-1]. The Court notes that in his motion, Mr. Sumner

has outlined various rehabilitative and vocational programs that he has participated in during his

incarceration and the Court commends Mr. Sumner on his participation in such programs. See




       4
          This is a rough estimate based on the information provided in the opinion. The opinion
indicates that the carjackings occurred in October 1994, that defendant proceeded to trial in 1995,
and that the government set forth its position as described during a hearing held on July 10, 2014.
                                                  6
Def.’s Mot. at 5. However, for the reasons described, the Court denies Mr. Sumner’s motion for

a reduction of sentence as it finds no legal basis to grant his request.

       Finally, the Court notes that the instant decision does not affect Mr. Sumner’s pending [46]

“abridged” motion pursuant to 28 U.S.C. § 2255 which asserts that Mr. Sumner may seek to

challenge his career offender sentence under U.S.S.G. § 4B1.1 in light of the decision of the

Supreme Court of the United States in Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015).

Indeed, on June 2, 2016, Chief Judge Beryl A. Howell issued a Standing Order “appoint[ing] the

Office of the Federal Public Defender for the District of Columbia to represent any defendant

previously determined to have been entitled to appointment of counsel, or who is now indigent, to

determine whether that defendant may qualify to seek to vacate a conviction or to seek a reduction

of sentence or to present any motions to vacate a conviction and/or for reduction of sentence in

accordance with Johnson and Welch.” Pursuant to the procedures set out in that Standing Order,

Mr. Sumner, through counsel, filed an emergency motion for authorization to file a second or

successive motion pursuant to 28 U.S.C. § 2255 before the United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”). On June 23, 2016, the D.C. Circuit granted Mr.

Sumner’s emergency motion and ordered that the emergency motion be transmitted to this Court

for filing as an “abridged” motion pursuant to 28 U.S.C. § 2255. The motion currently is pending

before this Court and further briefing on this motion will be made in accordance with Chief Judge

Howell’s Standing Orders of June 2, 2016, and September 9, 2016. The Court shall render its

ruling on the pending [46] “abridged” motion pursuant to 28 U.S.C. § 2255 after briefing is

complete.

                                        III. CONCLUSION

       For the foregoing reasons, the Court finds Mr. Sumner is not eligible for a reduction of his

                                                  7
current sentence at this time because he does not meet the criteria as laid out in 18 U.S.C. § 3582(c)

and the Court has determined no other basis for granting his request. Accordingly, Mr. Sumner’s

[42] motion for reduction of sentence is DENIED. An appropriate Order accompanies this

Memorandum Opinion.



                                                          /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      UNITED STATES DISTRICT JUDGE




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