                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA,           )
                                     )
                                     )
            v.                       ) Criminal No. 04-0353 (ESH)
                                     )
RALPH J. PREPETIT,                  )
                                     )
                  Defendant.        )
____________________________________)


                          MEMORANDUM OPINION AND ORDER

       After entering a plea of guilty in the above-captioned case, defendant Ralph J. Prepetit

was convicted of access device fraud, in violation of 18 U.S.C. § 1029(a)(2). (See Judgment in a

Criminal Case, May 2, 2005.) He was sentenced to 120 months imprisonment, three years of

supervised release, and restitution in the amount of $1,120,516.00, to be paid at the rate of

$300.00 per month. (Id.) He now moves the Court to reduce his term of imprisonment due to

recent amendments to the United States Sentencing Guidelines and to reduce or suspend his

obligation to pay restitution. (See Def.’s Mot to Reduce Sentence, Apr. 22, 2015 [ECF No. 105];

Def.’s Mot. to Reduce/Modify/Suspension Restitution Obligation, Dec. 10, 2015 [ECF No. 103];

Def.’s Mot. to Reduce Sentence, Dec. 21, 2015 [ECF No. 104].) For the reasons stated herein,

his motions are denied.

I.     MOTIONS TO REDUCE TERM OF IMPRISONMENT

       Two of defendant’s pending motions ask the Court to reduce his term of imprisonment

pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c) provides that:

       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 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). Defendant argues that he should receive a sentence reduction in light of

Sentencing Guideline Amendments 791 and 792,1 both of which altered Guideline § 2B1.1, the

Guideline used to calculate defendant’s offense level. At the time he was sentenced, defendant’s

base offense level was increased by 16 levels due to the amount of loss, see § 2B1.1(b)(1), and

by 4 levels due to the number of victims, see 2B1.1(b)(2). Amendment 791 altered the “loss”

table in § 2B1.1(b)(1) to account for inflation. Amendment 792 altered § 2B1.1(b)(2) “to better

account for harm to victims, individual culpability, and the offender’s intent.” Defendant

contends that if the amended Guideline § 2B1.1 were applied to him, the increase in his base

offense level due to the amount of loss would drop from 16 to 14 and that the increase in his base

offense level due to the number of and effect on victims would drop from 4 to 2, resulting in an

overall decrease in his total offense level from 27 to 23, reducing his sentencing range to 84 to

105 months.

       Even if defendant is correct that his sentencing range would be lowered under the

amended § 2B1.1, he is not entitled to the relief he seeks because in order to obtain relief under §

3582(c)(2), the Sentencing Commission must also have decided that an amendment applies

retroactively. See 28 U.S. C. § 994(u); U.S.S.G. § 1B1.10(a)(2); Dillon v. United States, 560

U.S. 817, 824-25 (2010) (“Section 3582(c)(2) establishes an exception to the general rule of

finality ‘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


1
  Although defendant’s first motion refers to Guideline Amendment 783, it is clear from the
record and the substance of his motions that the amendments he is relying on are, in fact,
Amendments 791 and 792.
                                                 2
28 U.S.C. § 994(o )’ and made retroactive pursuant to § 994(u).” (quoting 18 U.S.C. §

3582(c)(2))). Amendments 791 and 792 have not been made retroactive, see U.S.S.G. §

1B1.10(d) (2015),2 and thus defendant is not entitled to a reduction in his term of imprisonment

based on their enactment.3

II.    MOTION TO REDUCE, MODIFY OR SUSPEND RESTITUTION

       Defendant has also filed a motion to reduce, modify or suspend his restitution obligation

pursuant to 18 U.S.C. § 3664(k).4 He asserts that the Court “failed to consider his ability to pay”

when it awarded restitution and that his “future economic circumstances will be materially

adversely affected” by his “present medical and mental diagnosis, as well as the high cost of life

saving medication to treat his condition.” (Mot. to Modify Restitution at 2.)

       Generally, a court lacks the power to modify a restitution order except under the limited

circumstances recognized in 18 U.S.C. § 3664(o).5 See United States v. Banks, 62 F. Supp. 3d


2
 The amendments covered by § 1B1.10 are “126, 130, 156, 176, 269, 329, 341, 371, 379, 380,
433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by
711, 715, 750 (parts A and C only), and 782 (subject to subsection (e)(1)).” U.S.S.G. §
1B1.10(d).
3
  Defendant should be aware of this limitation. (See Order, Mar. 12, 2013 [ECF No. 101]
(denying motion to modify sentence pursuant to non-retroactive amendment to the Guidelines);
Order, Feb. 3, 2011 [ECF No. 93] (same).)
4
 This same motion was also filed in two other cases: No. 94-cr-0021 (D.D.C.) and No. 94-cr-
0267 (D.D.C.).
5
  Other than adjustment under § 3664(k), § 3664(o) identifies the following means by which an
order of restitution may be modified by a court: (1) it may “be corrected within fourteen days
after sentencing for ‘arithmetical, technical, or other clear errors,’” Fed. R. Crim. P. 35(a)”; (2) it
“may be modified or corrected on appeal under section 3742”; (3) “it may be amended under
section 3664(d)(5) because losses were not ascertainable at the time of sentencing”; (4) “the rate
at which a defendant must make payments may be accelerated on default under sections 3572
and 3613A”; and (5) “under sections 3565 and 3614, a court may resentence or revoke the
probation of a defendant who violates his probation conditions.” See United States v. Banks, 62
F. Supp. 3d 125 (D.D.C. 2014).


                                                   3
125 (D.D.C. 2014). As defendant recognizes, one of those circumstances is if the order is

“adjusted under section 3664(k).” 18 U.S.C. § 3664(o). Section 3664(k), though, provides only

that a district court, upon receiving “notification of a material change in the defendant’s

economic circumstances” from the defendant, the United States or a victim, “may, on its own

motion, or the motion of any party, including the victim, adjust the payment schedule, or require

immediate payment in full, as the interests of justice require.” 18 U.S.C. § 3664(k) (emphasis

added). It does not authorize a court to permanently reduce or waive a restitution obligation.

Accordingly, defendant’s motion to reduce, modify or permanently suspend his restitution

obligation is denied. To the extent defendant is anticipating being unable to comply with the

$300.00 per month payment schedule upon his release from prison, his motion is denied as

premature as it is impossible for the Court to determine what his “economic circumstances” will

be at that time and whether they will have changed so as to warrant an adjustment in the payment

schedule ordered at the time of sentencing.

                                              * * *

       Accordingly, it is hereby

       ORDERED that defendant’s motions for reduction of sentence pursuant to 18 U.S.C. §

3582(c) [ECF Nos. 104 & 105] are DENIED; and it is further

       ORDERED that defendant’s motion to reduce or suspend his restitution obligation

pursuant to 18 U.S.C. § 3664(k) [ECF No. 103] is DENIED without prejudice.


                                                      /s/ Ellen Segal Huvelle
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge

Date: January 7, 2016


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