UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
UNITED STATES OF AMERICA, )
)
)
) Criminal Action No. 95-CR-46 (RCL)
v. ) _
) F ll ila §
MARK E. BUNDY )
) nat =a 2009
Defendanf- ) NANcvM/avea wumm<,~m
)

u.s. oasm:cr counr'

MEMORANDUM & ORDER
I. INTRODUCTION
Defendant Mark E. Bundy’s motion under 18 U.S.C. § 3582(0)(2) to reduce his sentence
based on amendments to the United States Sentencing Guidelines is before this Court. Upon
consideration of the motion, the United States’ opposition, the defendant’s reply, applicable law,

and the entire record herein, the motion will be DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 1996 the defendant pleaded guilty to conspiracy to distribute and to
possess with intent to distribute fifty grams or more of "crack" cocaine. He did so pursuant to a
plea agreement under Federal Rule of Criminal Procedure ll(e)(l)(C).‘ In that agreement, the
defendant and the United States agreed to a l44-month tenn of imprisomnent, to be followed by

a five year tenn of supervised release. The agreement also states that the parties arrived at the

' Rule ll(e)(l)(C) has since been renumbered as Rule ll(c)(l)(C). As such, subsequent
references in this Order will refer to Rule ll(c)(l)(C).

agreed 144-month term using the then applicable sentencing guidelines. Since the time of the
defendant’s sentence, however, the United States Sentencing Commission has lowered the
applicable sentencing guidelines for crack cocaine offenses and made the amended guidelines
apply retroactively. U.S.S.G., Supplement to Appendix C, Amendments 706, 7ll (Nov. l,
2007); 18 U.S.C. § 3582(0)(2). Accordingly, defendant has filed a motion for a reduction of his
sentence. Because his request is contrary to 18 U.S.C. § 3582(0)(2), the rules of criminal

procedure, the sentencing guidelines, and applicable case law, his motion will be denied.

III. ANALYSIS
The examination of defendant’s motion must begin with the statute under which he seeks

relief. 18 U.S.C. § 3582(c)(2) provides that a defendant may make a motion to reduce his
sentence if he was sentenced to a term of imprisonment based on a sentencing range that has
been subsequently reduced by the United States Sentencing Commission. Bundy is unable to
avail himself of this section, however, because a sentence agreed to in a Rule ll(c)(l)(C)
agreement is not a sentence "based on a sentencing range" that has been set by the Sentencing
Commission. The D.C. Circuit has stated that "[a] sentence arising from a Rule ll(e)(l)(C) plea
. . . does not result from the determination of an appropriate guidelines offense level, but rather
from the agreement of the parties: an agreement that is binding on the court once it is accepted by
the court." United States v. Heard, 359 F.3d 544, 548 (D.C. Cir. 2()04) (citing Fed. R. Crim. P.
ll(e)(l)(C)). As such, 18 U.S.C. § 3582(0)(2) has no application to this case.

Moreover, as noted by the D.C. Circuit in Heard, the rule of criminal procedure under

which Bundy entered his plea does not allow this Court to modify his sentence. Heard, 359 F.3d

 

at 548. Federal Rule of Criminal Procedure ll(c)(l)(C) states that an agreement on a sentence
under this rule "binds the court once the court accepts the plea agreement." Certainly, the
sentencing guidelines may have some bearing on what sentence a defendant decides to plead to
because they help inform the defendant of what sentence he could face in the event that he were
to go to trial and be convicted. Indeed, in this case the guidelines helped the parties calculate the
agreed to sentence. But the parties were under no obligation to use the guidelines to determine
the agreed to sentence. As noted by the rule, the ultimate agreement is a contract signed by the
parties and is not a result of the court consulting the sentencing guidelines and sentencing the
defendant accordingly. Indeed, when a court accepts a Rule ll(c)(l)(C) plea it forgoes that
opportunity. As a result, a court has no power to modify the sentence under the Federal Rules of
Criminal Procedure.

The sentencing guidelines themselves also counsel against the defendant’s request.
Section lBl.l0 of the sentencing guidelines, which governs retroactively lowering a defendant’s
sentence, states that a court may only reduce a defendant’s sentence as provided by 18 U.S.C. §
3582(0)(2). In other words, the sentencing guidelines do not confer on defendants additional
avenues for challenging a sentence. And, as noted above, section 3582(0)(2) itself only allows
for a sentencing reduction if the defendant was originally sentenced under the guidelines. Cf
United States v. Profeta, No. 01-3030, 2001 WL 1488668, at *1 (D.C. Cir. 2001) (per curiam)
(stating that if a defendant is sentenced to a statutorily mandated minimum sentence the district
court has no authority to reduce a sentence under 18 U.S.C. § 3582(¢)(2)).

This Court has once before rejected a similar motion in the context of the retroactive

crack cocaine amendments to the sentencing guidelines. United States v. Oliver, 589 F. Supp. 2d

39, 40-41 (D.D.C. 2009). So too, have the majority of federal courts to have considered the
question.z See, e.g., United States v. Scurlark, 560 F.3d 839, 841 (8th Cir. 2009); United States
v. Clayborn, No. 08-2617, 2009 WL 929945, *l (3d Cir. Apr. 8, 2009); United States v. Grz`gsby,
560 F. Supp. 2d 1066, 1067-68 (D. Colo. 2008); United States v. Johnson, No. 05-40107-01-
RDR, 2008 WL 4758581, *1 (D. Kan. Oct. 27, 2008); United States v. Fonville, No. 01-1015-
LRR, 2008 WL 2953610, *2 (N.D. lowa July 29, 2008); United States v. Tindall, No. 04-00031-
2, 2008 WL 2518546, *l (W.D. Va. June 19, 2008); United States v. Arroyo, No. 97-l146-ILG,
2008 WL 249'7430, *l (E.D.N.Y. June l8, 2008); United States v. Clayborn, No. 05-51-01, 2008
WL 2229531, *2 (M.D. Pa. May 28, 2008); United States v. Gordon, No. 97-24-FHS, 2008 WL
901911, *1 (E.D. Okla. Mar. 31, 2008). While some other recent decisions have granted this
type of motion, see, e.g., United States v. Dews, 551 F.3d 204, 208-10 (4th Cir. 2008), the Court
finds the minority position unpersuasive and contrary to its prior decision. As those cases are not
binding precedent, this Court will follow its prior decision in Oliver, as well as those of the

majority of courts to have considered this question. For the reasons stated in this opinion the

defendant’s motion will be denied.

zAmendment 706 of the Sentencing Guidelines generally reduces the offense level that is
applicable to cocaine base offenses by two levels. The Sentencing Commission set l\/larch 3,
2008 as the date that Amendment 706 could be applied retroactively. As a result, decisions on
this precise issue are of recent vintage. However, earlier decisions addressing this issue with
regard to other amendments to the sentencing guidelines have reached the same conclusion. See,
e.g., United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004) ("[T]he plain language of the
current version of Rule ll(e)(l)(C), now Rule ll(c)(l)(C), generally precludes the district court
from altering the parties’ agreed sentence under 18 U.S.C. § 3582(c). This conclusion applies
despite the retroactivity of a subsequent amendment to a relevant guidelines utilized to determine
the defendant’s sentence.").

IV. CONCLUSION AND ORDER

Because the defendant was sentenced under a F ederal Rule of Criminal Procedure
l1(c)(1)(C) agreement, rather than under the sentencing guidelines, this Court has no power to
modify his sentence under 18 U.S.C. § 3582(0)(2). Accordingly, it is hereby

ORDERED that defendant’s motion is denied.

SO ORDERED.

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