                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
UNITED STATES OF AMERICA             )
                                     )  Criminal No. 93-365 (RCL)
      v.                             )
                                     )
DARRICK COOK                         )
      also known as                  )
DERRICK COOK                         )
                                     )
                 Defendant.          )
____________________________________)

                                  MEMORANDUM OPINION

       Defendant Derrick Cook, acting pro se, filed a motion to reduce his sentence pursuant to

18 U.S.C. § 3582(c)(2). Def.’s Mot. Reduce 1, Feb. 12, 2012, ECF No. 100. The Federal Public

Defender’s office subsequently filed a Supplemental Motion to Reduce Sentence on defendant’s

behalf. Def.’s Supp. Mot. Reduce 1, Jul. 3, 2012, ECF No. 101. Upon consideration of Mr.

Cook’s Motion [100], the Supplemental Motion [101] filed on his behalf, the government’s

Opposition [103], the defendant’s Reply [104], the entire record herein, the applicable law, and

for the reasons set forth below, the Court will deny the motion.

I.     BACKGROUND

       On September 7, 1993, defendant was arrested carrying 114.51 grams cocaine base

(“crack”). Presentence Investigation Report Revised ¶ 6, May 5, 1994 (“PSR”). He was indicted

on October 7, 1993, for possession with intent to distribute 50 grams or more of cocaine base

(“crack”) in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(iii). On January 12, 1994,

before trial, the United States filed an information giving notice of the defendant’s prior drug

conviction, in accordance with 21 U.S.C. § 851. Information 1, Jan. 12, 1994, ECF No. 22. On

February 28, 1994, a jury found the defendant guilty as charged. Based on his offense level—

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32—and his criminal history category—II—his guideline range was calculated at 135 to 168

months. PSR ¶ 38. However, because the statutory mandatory minimum was higher than the

guideline range, defendant was sentenced to the mandatory minimum—240 months

incarceration. Defendant now seeks a reduction of his sentence under 18 U.S.C. § 3582(c)(2).

II.    LAW

       Under 18 U.S.C. § 3582(c)(2), the Court is allowed to modify a sentence when a

defendant was sentenced “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . if such a reduction is consistent with the applicable policy

statements issued by the Commission.” The crack guidelines have been reduced a number of

times, most recently in response to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-

220, 124 Stat. 2372, which took effect on August 3, 2010. The pre-FSA crack sentencing

guidelines were greatly criticized for their disproportionately harsh treatment of crack versus

powder cocaine possession and distribution. See, e.g., Dorsey v. United States, 132 S. Ct. 2321,

2328–29 (2012). Under the pre-FSA guidelines, there was a 100-to-1 disparity in the amount of

crack cocaine necessary to trigger strict mandatory-minimum sentences. Id. The FSA lowered

that disparity to 18-to-1. Id. at 2329. The United States Sentencing Commission (“USSC”)

promulgated Emergency Amendment 748, which became effective on November 1, 2010, and

lowered the guidelines ranges for crack offenses. U.S. Sentencing Guidelines Manual (USSG)

App. C. Vol. III. Amendment 750, which made the new lower sentencing ranges established by

Amendment 748 permanent, took effect on November 1, 2011. Id. The most recent USSG

policy statement made Amendment 750 retroactive. USSG § 1B1.10. However, “where a

defendant is sentenced to a statutory mandatory minimum sentence, relief under section

3582(c)(2) is unavailable because the sentence is no longer ‘based on’ a sentencing range.”



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United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010).

III.   ANALYSIS

       Defendant, here, was found guilty of possession with intent to distribute at least 50 grams

of crack.   This was at least defendant’s second felony drug conviction and, therefore, the

mandatory minimum sentence at the time was no less than 20 years—240 months—

imprisonment. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) (1994). Judge Harris imposed that

mandatory minimum sentence on the defendant on July 5, 1994. Because the defendant was not

sentenced pursuant to a guideline sentencing range that has been subsequently lowered but

received the statutory mandatory minimum sentence, his sentence cannot be reduced under §

3582(c)(2). See Cook, 594 F.3d at 886.

       The only remaining question is whether the FSA’s new lower mandatory minimums are

themselves retroactive, which would allow the Court to re-open the defendant’s sentencing and

impose a lower sentence. In Dorsey, the Supreme Court determined that the FSA applies

retroactively only to those defendants convicted of crack offenses before the enactment of the

FSA but sentenced after the FSA took effect—August 3, 2010. 132 S. Ct. at 2335. The Court is

now asked to extend Dorsey to defendants who were convicted and sentenced pre-FSA.

       Defendant makes a strong argument that the reasoning used by the Supreme Court in

Dorsey is applicable to his case. Supp. Mot. Reduce Sent. 5–12, ECF No. 101. However, the

Supreme Court has already foreclosed such extended application of its reasoning by noting that

its decision would “create a new set of disparities. But those disparities, reflecting a line-

drawing effort, will exist whenever Congress enacts a new law changing sentences (unless

Congress intends re-opening sentencing proceedings concluded prior to a new law’s effective

date).” Dorsey, 132 S. Ct. at 2335. Moreover, the D.C. Circuit has made clear that the FSA does



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not apply retroactively to defendants convicted and sentenced before its enactment. See United

States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir. 2012). Because “district judges . . . are

obliged to follow controlling circuit precedent until either [the D.C. Circuit], sitting en banc, or

the Supreme Court, overrule it,” this Court has no authority to hold that the FSA applies

retroactively. United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).

IV.     CONCLUSION

        For the foregoing reasons, the Court holds that the defendant’s Motion to Reduce

Sentence [100] must be denied. A separate Order consistent with this Memorandum Opinion

shall issue this date.

        Signed by Royce C. Lamberth, Chief Judge, on November 30, 2012.




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