UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )
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)

v. ) Criminal No. 06-330 (RJL)

)
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PATRICK M. YANSANE, ) F l L E o
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Defendant. ) JUL, 07 2016
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MEMO NDUM OPINION C¢!\ll'f$f°ffh¢fll¥ffl¢\°l¢°l\*"\b\*
(Juli_, 20l6) [Dkt. # 32]
Before the Court is defendant Patrick Yansane’s motion to reduce his sentence

under 18 U.S.C. § 3582(0)(2) based on Amendment 782 to the United States Sentencing
Guidelines, Def.’s Mot. to Reduce Sentence ("Def.’s Mot.") [Dkt. # 32], which the
Govemment opposed, see Gov’t’s Opp’n to Def.’s Mot. to Reduce Sentence ("Gov’t’s
Opp’n") [Dkt. # 34]. Upon consideration of the parties’ pleadings, the relevant law, and

the entire record herein, the Court DENIES defendant’s motion.

BACKGROUND
On February l6, 2007, Patrick Yansane pleaded guilty to one count of unlawful
possession with intent to distribute 50 grams or more of cocaine base, in violation of 21
U.S.C. § 84l(a)(l) and (b)(l)(A)(iii). See Minute Entry (Feb. l6, 2007); Plea Agreement
il l [Dkt. # 9]. ln his plea agreement, Yansane acknowledged he was accountable for at
least 150 grams but less than 500 grams of crack, Plea Agreement 1 2, and in the factual

proffer accompanying his plea he specifically admitted to possessing 173.1 grams of

crack, see Gov’t’s Submission to the Ct. in Preparation for the Upcoming Plea Hr’ g of

Patrick M. Yansane 3-4 [Dkt. # 8].' At the time 1 sentenced him, on March 6, 2008, an
offense involving at least 150 grams but less than 500 grams of crack cocaine carried a

base offense level of 32, see U.S. Sentencing Guidelines Manual ("U.S.S.G.")

§ 2D1.l(c)(4) (2007) (Drug Quantity Table), and the statutory mandatory minimum
sentence for offenses involving 50 grams or more of crack was 120 months in prison, see
21 U.S.C. § 841(b)(l)(A)(iii) (2006). At sentencing, I determined that the applicable
guideline sentencing range was 151 to 188 months, based on an offense level of 32 and a
criminal history category of III,Z and I sentenced him to 188 months, at the high end of
that range. See Minute Entry (Mar. 6, 2008); Judgment [Dkt. # 19]; Statement of
Reasons [Dkt. # 22]; Sentencing Tr. (Mar. 6, 2008) at 24, 33; U.S.S.G. ch.`5, pt. A

(Sentencing Table) (2007).
Subsequently, Congress passed the Fair Sentencing Act of 2010 ("FSA"), Pub. L.

No. 111-220, 124 Stat. 2372, which reduced the statutory mandatory minimum sentences

' The Presentence Investigation Report ("PSR") also specifically found Yansane accountable for
l73.l grams of crack. PSR (Feb. 5, 2008) at 4.

2 Probation calculated Yansane’s guideline sentencing range to be 188 to 235 months in prison.
See PSR at l3. Probation reached this range by calculating a base offense level of 32 under
U.S.S.G. § 2D1 .1(c)(4) (2007), then applying the career offender enhancement under U.S.S.G.
§ 4B1 .l(b) (2007) to reach an adjusted offense level of 34 (which also increased his criminal
history category to Category VI), and then decreasing the adjusted offense level by three points,
down to 31, for acceptance of responsibility under U.S.S.G. § 3El.l (2007). PSR at 4-5. At
sentencing, however, I declined to apply the career offender enhancement, and 1 also denied
credit for acceptance of responsibility. See Sentencing Tr. at 24. I therefore determined the
offense level to remain at 32 and, with a criminal history category of III, I found the applicable
guideline range to be 151 to 188 months. See z`a’.; Statement of Reasons [Dkt. # 22].

2

 

applicable to certain quantities of crack.3 Pursuant to the FSA, the U.S. Sentencing

Commission amended the guidelines to reduce the base offense levels for quantities of
crack. See U.S.S.G. App. C, Vol. lIl, Amends. 748 (2010), 750 (201 1). The

Commission also determined that the new base offense levels should apply retroactively
in sentence reduction proceedings under 18 U.S.C. § 3582(0)(2). See id. Amend. 759
(2011). Thereafter, on June 7, 2012, defendant filed a motion to reduce his prison
sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 750, as well as Congress’
enactment of the FSA, On July 23, 20l4, l issued a Memorandum Order granting
defendant’s motion in part and shortened the prison term from 188 to 151 rnonths."
Mem. Order (July 23, 2014) [Dkt. # 31].

Effective November 1, 2014, the Sentencing Commission amended and lowered
the base offense levels by two points for nearly all drug offenses pursuant to Amendment
782. See U.S.S.G., Supp. to App. C, Amend. 782 (Nov. l, 2014). Amendment 782
reduces Yansane’s total offense level by two points. Currently before this Court is
defendant’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on

Amendment 782. See Def.’s Mot.

3 Under the FSA, 50 grams of crack is no longer the threshold for a 120-month mandatory
minimum sentence. Instead, 280 grams is the threshold for 120 months, while offenses
involving at least 28 but fewer than 280 grams now carry a 60-month mandatory minimum. See

FSA § 2(a) (codified as amended at 21 U.S.C. § 84l(b)(1)(A)(iii), (B)(iii)).

4 lt was undisputed that any such reduction could not be lower than the 120-month statutory
mandatory minimum sentence that was in force on the date 1 sentenced him. See Def.’s Mot. for
Hr’g on Def.’s Mot. to Reduce Sentence [Dkt. # 30] at 1; United States v. Swangin, 726 F.3d
205, 206-07 (D.C. Cir. 2013) (holding that FSA’s lower mandatory minimums do not apply
retroactively in 18 U.S.C. § 3582(c)(2) proceedings).

3

ANALYSIS
Under 18 U.S.C. § 3582(0)(2), a defendant may move for a reduction in his

sentence if he was sentenced "based on a sentencing range that has subsequently been
lowered by the Sentencing Commission." Ia’. The Court’s power to reduce a sentence is
discretionary. See id.; Um'ted States v. Kennea’y, 722 F.3d 439, 442 (D.C. Cir. 2013). "A
section 3582(0)(2) proceeding is not a plenary resentencing proceeding, nor is it a license
for the defendant to re-litigate his sentence wholesale or challenge previously adjudicated
aspects of his conviction." Unitea’ States v. Wyche, 741 F.3d 1284, 1292 (D.C. Cir. 20l4)
(internal quotation marks and citations omitted). Accordingly, in evaluating such a
motion, this Court conducts only "a limited, two-step inquiry." Ia’. (citing Dillon v.
Unz`ted States, 560 U.S. 8l7, 826-27 (2010)). First, l must "detennine the prisoner’s
eligibility for a sentence modification and the extent of the reduction authorized" by
"‘determin[ing] the amended guideline range that would have been applicable to the
defendant’ had the relevant amendment been in effect at the time of the initial

sentencing." Dz`llon, 560 U.S. at 827 (quoting U.S.S.G. § lBl.l0(b)(l) (brackets in
original)). Next, if the defendant is eligible, l must then "consider any applicable
§ 3553(a) factors and determine whether, in [my] discretion, the reduction authorized by

reference to the policies relevant at step one is warranted in whole or in part under the
particular circumstances of the case." Dz'llon, 560 U.S. at 827.

On July 23, 2014, l issued a Memorandum Order granting in part defendant’s
previous motion to reduce his sentence pursuant to Amendment 750, which reduced base
offense levels for quantities of crack. See Mem. Order (July 23, 2014); U.S.S.G. App. C,

4

Vol. III, Amends. 748 (2010), 750 (2011), and 759 (20l1). At the time of the requested
reduction, the effective amended guideline range was 120 to 121 months. 5 See U.S.S.G.
§ 5G1.1. Whi1e the statute authorized a potential reduction in sentence to as low as 120

months, 1 determined a smaller reduction was appropriate and shortened the prison term
from 188 to 151 months in prison.

Here, as before, it is undisputed that Yansane is eligible for a sentence reduction,
this time pursuant to Amendment 782. lt also remains undisputed, however, that any
reduction may not result in a sentence lower than the 120-month statutory mandatory
minimum sentence that was in force on the date 1 sentenced him. See Gov’t’s Opp’n at
10-14; Def.’s Mot. for Hr’g on Def.’s Mot. to Reduce Sentence [Dkt. # 30] at 1; Um'ted
States v. Swangin, 726 F.3d 205, 206-07 (D.C. Cir. 2013) (holding that FSA’s lower

mandatory minimums do not apply retroactively in 18 U.S.C. § 3582(c)(2) proceedings).

5 Yansane pleaded guilty to an offense involving at least 150 grams but less than 500 grams of
crack, which at the time of sentencing carried a base offense level of 32. See U.S.S.G.

§ 2D1.1(c)(4) (2007) (Drug Quantity Table). At the initial sentencing, 1 made no adjustments to
the offense level of 32 and thus determined that his guideline range was 151 to 188 months (with
a criminal history category of III). See U.S.S.G. § 2D1.1(c)(4) (2007) (Drug Quantity Table);

Sentencing Tr. at 24.

In my previous order reducing defendant’s sentence pursuant to Amendment 750, 1 found the
quantity of crack for which Yansane is accountable to be 173.1 grams, based on his admission in
the factual proffer accompanying his plea, see supra p. 2, which carried a base offense level of
28. Mem. Order (July 23, 2014) at n.4; see Wyche, 741 F.3d at 1293 (holding that in a

§ 3582(c)(2) proceeding "a resentencing court is permitted to make an independent drug quantity
finding if it cannot determine the defendant’s amended guideline range without doing so");
U.S.S.G. § 2D1.1(c)(6) (2013) (Drug Quantity Table). Substituting his new offense level of 28
under the retroactive amendment 750 to the crack guidelines, and "leav[ing] all other guideline
application decisions unaffected," U.S.S.G. § 1B1.10(b)(1), including his criminal history
category of III, 1 determined that Yansane’s amended guideline range would be 97 to 121
months, absent the impact of the 120-month statutory mandatory minimum sentence. Mem.
Order (July 23, 2014) at n.4; see U.S.S.G. ch. 5, pt. A (Sentencing Tab1e). Hence the effective
amended guideline range of 120 to 121 months.

 

Thus I must determine whether to reduce defendant’s sentence any further, to as low as
120 months. For the following reasons, I find that no further reduction is warranted.

At issue here is Amendment 782, under which the Sentencing Commission
amended and lowered the base offense levels by two points for nearly all drug offenses,
effective November l, 2014. See U.S.S.G., Suppl. to App. C, Amend. 782 (Nov. 1,
2014). This broad reaching amendment differs from the two earlier rounds of
amendments to U.S.S.G. § 2D l .l that were limited to offenses involving crack cocaine
base only, including Amendment 750, the basis for defendant’s previous sentence
reduction motion. See Gov’t’s Opp’n 3.

Amendment 782 reduces the sentencing guideline range applicable to Yansane to
120 months. Under the current system, defendant’s conviction of the crime of possession
with intent to distribute crack cocaine base would be subject to a guideline range based
upon a total offense level of 26 and Criminal History Category III, or a range of 78-97
months in prison. See U.S.S.G. § 2Dl.l(c)(7) (20l6) (Drug Quantity Table). Both
parties correctly observe that the l73.l grams of crack cocaine base for which defendant
is accountable would carry a five-year mandatory-minimum term if he were convicted
today, see 2l U.S.C. § 84l(b)(l)(A), (B)(iii), but acknowledge that the Court lacks
authority to sentence defendant to a prison term shorter than 120 months, the applicable
statutory minimum prison term at the time of his original conviction and thus the

effective guideline range here. See Def.’s Mot. 3; Gov’t’s Opp’n 4; see also Swangz`n,

726 F.3d at 206-07.

Having determined the applicable guideline range to be 120 months, 1 must
determine whether any further reduction to Yansane’S 151-month sentence "is warranted
. . . under the particular circumstances of th[is] case." Dz`llon, 560 U.S. at 827. 1

conclude it is not. As before, in making this discretionary determination 1 must consider

the factors set forth in 18 U.S.C. § 3553(a), see 18 U.S.C. § 3582(c), as well as "the
nature and seriousness of the danger to any person or the community that may be posed
by a reduction in the defendant’s term of imprisonment," U.S.S.G. § lB l .lO
Cornmentary, Application Note l(B)(ii). Although the legal basis for the reduction
request has changed, the 120-month floor remains unchanged and my evaluation of the
§ 3553(a) factors and public safety leads me to the same result, particularly given
defendant’s criminal history, the scope of his crime, and his pattern of dangerous
conduct. 1 incorporate my prior evaluation of the relevant factors herein:

Based on my evaluation of the § 3553 factors and the public
safety, I find that some reduction is warranted based on
Amendment 750, but 1 decline to give a reduction to the 120-
month floor. Yansane’s conviction in this case resulted from
possessing a significant quantity of drugs, and when he came
before me for sentencing he already had a criminal history of
multiple prior convictions for drug possession with intent to
distribute. Further, after he pleaded guilty on February 16,
2007, and was released on personal recognizance, but before
sentencing, I issued a bench warrant for him on April l l, 2007,
for violations of his conditions of release, and on October 5,
201 l, he was arrested and his bond was revoked. Meanwhile,
on August 31, 2007, Prince George’s County (Maryland)
Circuit Court issued a bench warrant for Yansane after he
failed to appear for an initial arraignment on charges of
possession with intent to distribute cocaine, possession of
cocaine, possession of marijuana, and other charges. In other
words, while awaiting sentencing in this Court, defendant
allegedly committed the exact same type of drug offense to

7

 

which he had just pleaded guilty in this Court, and thus
demonstrated a continuing pattern of possession with intent to
distribute dangerous drugs_behavior from which public must
be protected. As l noted at sentencing when l declined to give
Yansane any credit for acceptance of responsibility in light of
this pre-sentencing conduct, 1 determined that he warranted a
sentence sufficiently above the mandatory minimum to reflect
the seriousness of his conduct

Mem. Order (July 23, 2014) at 6-7 (emphasis added) (footnotes and citations omitted).
Thus, l decline to reduce defendant’s sentence any further and find that defendant’s
carefully calibrated l5 l-month sentence remains appropriate.

Accordingly, taking into account the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and the policy statement set forth at U.S.S.G. § lB1.l0, defendant’s Motion to

Reduce Sentence is hereby DENlED. A separate Order consistent with this decision

accompanies this Memorandum Opinion.

