                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

    Plaintiff,

           v.                                              Criminal No. 13-117 (CKK)
                                                            (Civil Action No. 14-052)
 CARLOS GAYTAN,

    Defendant.



                                 MEMORANDUM OPINION
                                   (September 25, 2014)

       Presently before the Court is Defendant Carlos Gaytan’s [23] Motion to Vacate Sentence

pursuant to 28 U.S.C. § 2255. The Defendant, who is proceeding pro se, requests that the Court

reconsider and reduce his sentence because the Court imposed a lesser sentence on his

codefendant, Alicia Gaytan. Upon a searching review of the parties’ submissions, 1 the relevant

authorities, and the record as a whole, the Court finds that the Defendant is not entitled to the

requested relief.   Accordingly, the Court shall DENY the Defendant’s Motion to Vacate

Sentence.

                                        I.     BACKGROUND

   A. Factual Background

       Defendant pled guilty to one count of Conspiracy to Distribute and Possess With Intent to

Distribute One Kilogram or More of Heroin and Five Hundred Grams or More of Cocaine in

violation of 21 U.S.C. §§ 846 and 841(a)(1)(A)(i) & (b)(1)(B)(ii). The underlying facts in this

case to which the Defendant agreed in a signed statement and during the plea colloquy under
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           Def.’s Mot. to Vacate Sentence, ECF No. [23]; Govt.’s Opp’n, ECF No. [31]. The Defendant
filed no reply.
oath are as follows: In April of 2012, Daniel Zintura-Flores [hereinafter “Zintura”] offered to

give Defendant a large quantity of cocaine to sell. Gov’t. Factual Proffer (Apr. 23, 2013) at 5,

ECF No. [2]. Defendant approached Juan Gaytan [Defendant’s brother] and Sergio Cuadros-

Menchaca, both of whom were living in the same apartment as Defendant, and asked if they

would be able to distribute a large quantity of cocaine. Id. Both men said they could, and

encouraged Defendant to get cocaine from Zintura. Id. Zintura gave Defendant a kilogram of

cocaine and indicated the price, which was either $32,000 or $33,000. Id. Defendant gave the

kilo to his brother and Cuadros-Menchaca. Id.       They “cut” or diluted the cocaine with a

supplement they purchased at a GNC store. Id. They distributed all of the cocaine, and then gave

Defendant the money to pay Zintura for the cocaine. Id. at 5-6. Zintura came to Defendant’s

apartment to collect the money. Id. at 6.

       In May of 2012, Zintura and Maria Gaytan [Defendant’s aunt] brought two kilograms of

cocaine to Defendant in his apartment. Id. Zintura said he wanted Defendant to pay him back

$32,000 for each of those kilos. Id. Juan Gaytan [Defendant’s brother] and Cuadros-Menchaca

were able to distribute the first kilogram. Id. However, when they opened the second kilogram,

it appeared to them to be of poor quality. Id. As a result, they were not able to distribute that

kilogram. Id. Defendant attempted to return the kilogram to Zintura, but was not immediately

able to do so, and so that kilogram of poor quality cocaine was discovered and seized by the FBI

during the search warrant executed at the apartment shared by Defendant, Juan Gaytan, and

Cuadros-Menchaca on the day of his arrest. Id. In addition, the FBI recovered over $11,000 in

cash and a device used to press cocaine into a kilogram form from that apartment. Id.

       In May of 2012 at 5:05 p.m., Maria Gaytan, using Zintura’s phone, asked Defendant if he

had any customers for “the stronger type, the most expensive type?” Id. She stated that she

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could not say the name but it starts with an “E,” and that they are being offered some. Id.

Defendant asked the price. Id.     In this conversation Maria Gaytan inquired as to whether

Defendant would be able to distribute heroin. Id. The call refers to heroin; the “H” in “heroin” is

a silent H in Spanish and the word, phonetically, begins with an “E” sound, and heroin is much

more expensive than cocaine. Id. At 5:45 p.m., Maria Gaytan asked Defendant if he “found that

out for her.” Id. Defendant needed to be reminded of what she was talking about. Id. Maria

Gaytan sounded out “ERO” (as if to sound out the Spanish pronunciation of heroin). Id. She

restated that it is double the price. Id. Maria Gaytan went on to tell Defendant that “it” would

happen tomorrow for sure. Id. A tractor-trailer with Texas plates carrying a load of heroin

arrived the next day and parked outside Defendant’s stepmother’s home. Id. at 6-7. In a later

conversation at 6:41 p.m., Defendant told Maria Gaytan that he did not find anyone but

Defendant was waiting for Juan to call him. Id. at 7. This conversation was in reference to Maria

Gaytan’s earlier inquiry regarding heroin. Id.

       On May 21, 2012, at 7:34 p.m., Defendant spoke to Maria Gaytan, who indicated that

they were working on the stuff she told him about. Id. She then said that their stuff would get

here on Wednesday. Id. Zintura is heard in the background saying cars. Id. Maria Gaytan then

revised her statement to say that the cars would arrive on Wednesday. Id. Maria Gaytan then

stated that the stuff that had arrived was the other stuff she told him about, the other cars. Id.

Defendant understood that Maria Gaytan meant the heroin they had spoken about had arrived.

Id. Defendant was to understand that the referenced “stuff” that would arrive Wednesday would

be cocaine which would be available to Defendant to sell. Id.

       On May 22, 2012, codefendants Sunny Jo Schwinn and Andrew Slavinski drove the

Dodge Durango loaded with the first group of nine or ten kilograms of heroin to New York City.

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Id. Zintura, Maria Gaytan, and Alejandro Chapa followed some distance behind in another

vehicle. Once in New York City, the heroin was transferred to others for redistribution. Id.

       That day at 12:42 p.m., Defendant called Zintura’s phone and spoke to Maria Gaytan, and

asked if she had parking. Id. He informed Maria Gaytan that he had offered to pay $600, since

there would be enough. Id. This was in reference to finding a safe place to park a vehicle; at that

time Maria Gaytan and Zintura were engaged in the first of the two planned trips to New York

City to distribute heroin sent by Guadalupe Galaviz. Id.

       Upon returning from New York City, the group began making arrangements to make

another trip the following day to transport the remaining kilograms of heroin to New York City.

Id. at 8. On May 23, 2012, at approximately 9:45 a.m., agents on surveillance observed Zintura

arrive at the Knights Inn in Laurel, Maryland, driving the white Durango. Id. Zintura knocked

on the door of one of the hotel rooms. Id. Acting pursuant to previously issued arrest warrants,

agents moved in, arresting Zintura, as well as Sunny Jo Schwinn and Andrew Slavinski, who

were in the hotel room. Id. Acting pursuant to court-authorized search warrants, agents seized

and searched the white Dodge Durango. Id. In a hidden compartment in the left rear wheel well

of the vehicle, law enforcement discovered thirteen packages, each weighing approximately one

kilogram and each separately wrapped, which contained a white substance consistent with

cocaine. Id. Though each package field tested positive for cocaine, laboratory analysis proved

12 of the packages to be over 91% pure heroin, and one kilogram to be “compound 6,” a heroin

derivative and a schedule 1 controlled substance. Id.

       A search of the bedroom shared by Zintura and Maria Gaytan revealed over $198,000 in

cash. Id. at 9. In addition, law enforcement found a ledger recording amounts owed by and paid

to Zintura by his cocaine customers. Id. The defendant’s name appears in that ledger. Id.

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        The Government filed an Information on April 16, 2013, on the sole count of conspiracy

to distribute and possess with intent to distribute one kilogram or more of heroin and five

hundred grams or more of cocaine hydrochloride in violation of 21 U.S.C. § 846 against

Defendant. An arraignment and plea agreement hearing was held before the Court on April 23,

2013.

        B.     Written Plea Agreement

   The Defendant signed a written plea agreement on April 23, 2013.              See Gov’t. Plea

Agreement (Apr. 23, 2013), ECF No. [3]. The agreement contained “Factual Stipulations”

which included the Defendant’s agreement that he “is accountable for at least 10 kilograms of

heroin and 3 kilograms of cocaine powder, which quantity represents the total amount involved

in [his] relevant criminal conduct and amounts reasonably foreseeable by him.” Gov’t. Plea

Agreement (Apr. 23, 2013) at 2. The “Factual Stipulations” further included Defendant’s

agreement that “the attached ‘Government Proffer of Facts’ fairly and accurately describes [his]

actions and involvement in the offenses to which [he] is pleading guilty.”         Id.   The plea

agreement also contained a signature page with a heading entitled “Defendant’s Acceptance.”

The paragraphs under this heading read as follows:

        I have read this Plea Agreement and have discussed it with my attorney, Pleasant
        Brodnax, Esquire. I fully understand this Agreement and agree to it without
        reservation. I do this voluntarily and of my own free will, intending to be legally
        bound. No threats have been made to me nor am I under the influence of
        anything that could impede my ability to understand this Agreement fully. I am
        pleading guilty because I am in fact guilty of the offense identified in this
        Agreement.

        I reaffirm that absolutely no promises, agreements, understandings, or conditions
        have been made or entered into in connection with my decision to plead guilty
        except those set forth in this plea agreement. My attorney has reviewed with me
        the likely Sentencing Guidelines applicable under the terms of this plea as well as
        those which might apply after a trial in this case. I am satisfied with the legal

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       services provided by my attorney in connection with this plea agreement and
       matters related to it.

See Gov’t. Plea Agreement (Apr. 23, 2013) at 11. The plea agreement also specifically advised

that “[y]our client understands that the sentence in this case will be determined by the Court,

pursuant to the factors set forth in 18 U.S.C., Section 3553(a),” “that the sentence to be imposed

is a matter solely within the discretion of the Court,” and “that the Court is not obligated to

follow any recommendation of the Government at the time of sentencing . . . .” Id. at 2, 4.

       C.      Sentencing

       On August 1, 2013, this Court committed Defendant to the custody of the Bureau of

Prisons for a term of fifty-one months with credit for time served, followed by thirty-six months

of supervised release. Defendant was further ordered to pay a special assessment of $100. On

August 12, 2013, the Court held a resentencing hearing to correct an offense level calculation in

the presentence report. Accordingly, the Court changed Defendant’s sentence, committing him to

the custody of the Bureau of Prisons for a term of forty-six, rather than fifty-one, months. This

sentence represented the lower end of the Advisory Sentencing Guideline range for an offense

level of 23 and a criminal history category of I, advising a period of incarceration from forty-six

months to fifty-seven months.

       D.      Plea and Sentencing of Alicia Gaytan

       Alicia Gaytan, Defendant’s stepmother, also pled guilty to a role in the conspiracy.

Gov’t. Factual Proffer (Apr. 29, 2013) at 5, ECF No. [150]. Alicia Gaytan pled guilty to one

count of Conspiracy to Distribute and Possess With Intent to Distribute Five Hundred Grams or

More of Cocaine Hydrochloride in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii). A

summary of the underlying facts in that case to which Alicia Gaytan agreed in a signed statement


                                                6
and during the plea colloquy under oath are as follows: In or around April of 2012, Alicia Gaytan

learned that Maria Gaytan [her sister-in-law] and Maria Gaytan’s boyfriend, Daniel Zintura-

Flores, were trafficking in multiple kilograms of cocaine. Id. In April of 2012, Maria Gaytan

arranged for Alicia Gaytan to be given a kilogram of cocaine to sell with the promise that Alicia

Gaytan would pay approximately $33,000 at a later date. Id. Alicia Gaytan received the cocaine

in an apartment, from Maria Gaytan and Zintura. Id. Maria Gaytan showed Alicia Gaytan two

other kilos that she had in the apartment, and showed Alicia Gaytan how to hide a kilo in her

pants. Id.

        After receiving the kilogram of cocaine, Alicia Gaytan added two ounces of inositol to

dilute the cocaine in order to increase her profits. Id. Alicia Gaytan then sold portions of the

kilogram of cocaine to two different buyers, one of whom she knew as “Pollo” but later learned

was named “Anibal.” Id. These sales involved different amounts of cocaine ranging from four

ounces to 250 grams. Id. Alicia Gaytan eventually sold the entire kilogram and paid all or a

portion of the money she owed for the cocaine to Maria Gaytan and Zintura. Id. at 5-6.

        On May 15, 2012, Alicia Gaytan asked Maria Gaytan to meet her. Maria Gaytan told

Alicia Gaytan that she if they could not get together today, then they would do so the following

day. Id. at 9. Alicia Gaytan indicated that tomorrow was too far away and asked Maria Gaytan to

separate her part – meaning set aside the cocaine so that it would be ready for Alicia Gaytan to

pick up. Id. Alicia Gaytan spoke to Maria Gaytan again the following day about obtaining

cocaine. Id. However, Maria Gaytan said she had to have all the money back in three days, and

Alicia Gaytan could not distribute it that quickly. Id.

        On May 21, 2012, Maria Gaytan asked Alicia Gaytan if anybody was at Alicia Gaytan’s

house. Id. Alicia Gaytan told Maria Gaytan that the door to her house could be opened

                                                  7
[unlocked] with a stiff card from the side, then push the door open. Id. Alicia Gaytan then told

Maria Gaytan that she can use the room and do whatever Maria Gaytan wants. Id.

       Later that day, a large shipment of drugs was transported to the Washington, D.C. area in

a tractor-trailer. Id. The source of the shipment was Guadalupe Galaviz, and the shipment was

being overseen by Alejandro Chapa, who worked for Galaviz. Id. When the trailer arrived, it was

directed to park in front of Alicia Gaytan’s home. Id. The trailer contained over twenty

kilograms of heroin. Id. at 6-7. When Alicia Gaytan returned to her home that afternoon, she

observed a tractor-trailer parked in front of her home, and a white truck in her driveway. Id. at 7.

A man she did not know was standing in front of the house. Id. When Alicia Gaytan went into

the house, she saw Zintura, Maria Gaytan, and a young man named Alex. Id. Alex and Zintura

were wrapping a large amount of currency in plastic on a table. Id. While she did not personally

see any drugs, Alicia Gaytan understood during these events that her home was being used for

drug trafficking by, among others, Zintura and Maria Gaytan, from whom she had previously

purchased narcotics. Id. Alicia Gaytan assumed the drugs to be cocaine and she did not attempt

to stop the operation or to distance herself from the activities. Id.

       That same day, Alicia Gaytan later went out of the house with Maria Gaytan and watched

to ensure that no persons interfered with or observed work that Zintura and Alex were doing in

the back of the trailer in order to access and remove the kilograms of heroin. Id. At some point

Alicia Gaytan saw a mechanic arrive at her house. Id. The kilograms of heroin were brought

inside Alicia Gaytan’s home and handed over to the mechanic, who was then responsible for

sealing the packages in a secret compartment in the Dodge Durango for further transport. Id.

Alicia Gaytan was present during these events, was aware of their illegal nature, and allowed her

home to be used to facilitate these activities. Id. Alicia Gaytan did not receive any money or

                                                   8
drugs for allowing Zintura and Maria Gaytan to use her home that day. Id.

       As previously noted, on May 23, 2012, Zintura was arrested.          Id. A search of the

bedroom shared by Zintura and Maria Gaytan revealed over $198,000 in cash, which were

proceeds from drug sales. Id. at 8. In addition, law enforcement found a ledger recording

amounts owed by and paid to Zintura by his cocaine customers. Id. Alicia Gaytan’s name

appears in that ledger. Id. The ledger indicates that Alicia Gaytan received but did not pay for

one kilogram of cocaine. Id.

       The Government filed an Information on April 19, 2013, on the sole count of conspiracy

to distribute and possess with intent to distribute five hundred grams or more of cocaine

hydrochloride in violation of 21 U.S.C. § 846 against Alicia Gaytan. Alicia Gaytan signed a

written plea agreement on April 29, 2013. See Gov’t. Plea Agreement (Apr. 29, 2013), ECF No.

[151]. The “relevant conduct” for Alicia Gaytan involved one kilogram of cocaine and for the

purposes of calculating the Advisory Sentencing Guidelines, heroin between ten and 30

kilograms. On November 13, 2013, this Court committed Alicia Gaytan to the custody of the

Bureau of Prisons for a term of thirty-eight months with credit for time served, followed by

thirty-six months of supervised release. Alicia Gaytan was further ordered to pay a special

assessment of $100. While the Advisory Sentencing Guidelines range, which, pursuant to the

guidelines calculation, advised a period of incarceration from 46 months to 57 months, the Court

granted Alicia Gaytan’s motion for downward departure to which the government objected. The

Court granted the downward departure and a variance because it found that Alicia Gaytan had a

minimal role in this 20 codefendant conspiracy case, was a single parent to two minor children,

demonstrated financial hardship, was a deportable alien, was sexually abused and neglected in

childhood, and had severe medical problems. The Court specifically noted that one of the

                                               9
reasons for sentencing of Alicia Gaytan outside the Guidelines was parity with the closest

codefendant, namely Defendant, who also played a minimal role in the conspiracy.

       E.      Present Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255

       On December 11, 2013, a letter was sent by Defendant to the Court requesting that his

sentence be reconsidered.      Def.’s Mot., ECF No. [25].        The letter states: “If there is a

requirement for you to be presented with a formal motion before you can act I would request, if

need [sic], you treat this as a 2255 petition for a reduction of sentence.” Def.’s Mot. The Court

let this motion be filed on January 13, 2014. Id. Defendant indicates that his stepmother, Alicia

Gaytan, who also pled guilty on related charges was sentenced to 36 months incarceration. Id.

The Court notes that while Defendant’s Motion indicates Alicia Gaytan was sentenced to 36

months incarceration, in fact she was sentenced to 38 months incarceration. Defendant states:

“Because of the sentence[] you imposed for her I am requesting you reconsider the sentence you

imposed for me. I am requesting you reconsider my sentence[] because the evidence clearly

showed her role in the conspiracy, and her culpability, was clearly more involved than mine.”

Id.

                                    II. LEGAL STANDARD

       Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may

move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that

the sentence was imposed “in violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §

2255(a).

       The circumstances under which such a motion will be granted, however, are limited in

                                                 10
light of the premium placed on the finality of judgments and the opportunities prisoners have to

raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a

prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United

States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “unless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .

grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions

of law with respect thereto.” 28 U.S.C. § 2255(b). However, the decision whether to hold a

hearing is entrusted to the district court’s discretion, particularly where, as here, the reviewing

judge presided over the proceeding in which the petitioner claims to have been prejudiced.

United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996), cert. denied, 520 U.S. 1131

(1997). “If it plainly appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court, the judge must dismiss the petition . . . .” Rules Governing

Section 2255 Proceedings for the United States District Courts, Rule 4.

                               III.    DISCUSSION

          Defendant requests that the Court reconsider his sentence of 46 months incarceration in

light of the fact that the Court sentenced Alicia Gaytan to 38 months of incarceration for related

charges. The Court finds that Defendant’s request shall be denied for the reasons described

herein.

          Courts have consistently held that the mere fact that a codefendant receives a lesser

sentence than defendant is not a basis for granting relief pursuant to 28 U.S.C. § 2255. See

generally, e.g., Hilbrich v. United States, 371 F.2d 826 (7th Cir. 1967) (holding that a defendant

was not entitled to a relief under section 2255 when he asserted that the sentencing judge, who

was not the trial judge, was influenced by the sentence imposed by the trial judge on a

                                                  11
codefendant); Montalvo v. United States, 174 F. Supp. 2d 10, 12 (S.D.N.Y. 2001) (rejecting

defendant’s argument that his sentence should be realigned with that of another defendant in a

related case who was sentenced by a different judge); Lewis v. United States, 369 F. Supp. 659

(E.D. Mo. 1973) (rejecting defendant’s claim that he was denied Equal Protection because he

received a longer sentence than his codefendant).

       The Court shall nevertheless address the issues that warranted differing sentences for

Defendant and Alicia Gaytan.      Indeed, on appeal, the D.C. Circuit “review[s] [a sentence

imposed by the district court] for both procedural soundness – including whether the district

court considered the necessary factors and adequately explained a deviation from the Guidelines

– and the substantive reasonableness of sentences is for abuse of discretion.” United States v.

Wilson, 605 F.3d 985, 1033-1034 (D.C. Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 51

(2007)). Pursuant to 18 U.S.C. § 3553(a), the Court must consider several factors in determining

an appropriate sentences. Gall v. United States, 552 U.S. 38, 49-50 (2007). Defendant’s claim

for relief invokes one of the relevant factors, codified in section 3553(a)(6), which provides that

the Court shall consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

       Here, several differences warranted the eight-month disparity in sentences between

codefendants Carlos Gaytan and Alicia Gaytan. Both codefendants had a total offense level of

23 with a criminal history category of I. This offense level for Defendant included a four-point

reduction from the otherwise applicable Sentencing Guideline that the Court granted to

Defendant during his first sentencing hearing, after finding that Defendant was a minimal

participant in the conspiracy; a finding made for Alicia Gaytan as well. For both Defendant and

Alicia Gaytan, the Court included a Smith departure as they both were subject to possible

                                                12
deportation. Accordingly, the Guidelines recommendation was 46 to 57 months imprisonment

for both codefendants.      For Defendant, at re-sentencing, the government requested that

Defendant be sentenced to 54 months in prison and the defense requested that Defendant be

sentenced to 46 months. The Court sentenced Defendant to the lowest term of imprisonment

within the Guideline range, namely 46 months. For Alicia Gaytan, the government requested

that she be sentenced to 54 months in prison and the defense requested a term of 24 months. The

Court granted Alicia Gaytan’s motion for sentencing as a departure and as a variance outside the

Guidelines to which the government objected, and sentenced Alicia Gaytan to 38 months

incarceration.

       The Court now turns to its reasons for imposing a lesser sentence on Alicia Gaytan than

on Defendant. While both Defendants distributed cocaine, Defendants were held accountable for

different quantities and types of drugs as “relevant conduct.” Notably, the Court found that

Defendant knew not just about the cocaine, but also the heroin. Indeed, he agreed to find buyers

for the heroin, although he ultimately was unsuccessful in locating buyers. Alicia Gaytan did not

plead guilty to the heroin conspiracy and denied having any direct knowledge of the heroin.

Defendant ultimately was held accountable for three kilograms of cocaine that he sold or

attempted to sell and Alicia Gaytan was held accountable for one kilogram of cocaine that she

sold. Moreover, both codefendants attempted to facilitate the parking of the tractor-trailer

hauling heroin. Although Alicia Gaytan allowed the vehicles to park at her home and served as

the look-out for the transfer of the drugs from the tractor-trailer into her home and then into the

Dodge Durango, Defendant also attempted to find parking for the cars involved in the heroin

transaction, but ultimately was unsuccessful. The Court concludes that Defendant’s knowledge

of the heroin and his agreement to find buyers for the heroin, as well as being accountable for

                                                13
three kilograms of cocaine as opposed to one kilogram of cocaine, warrants the sentencing

difference between him and Alicia Gaytan. Further, the Court made specific findings at Alicia

Gaytan’s sentencing hearing as to its reasons for imposing a sentence outside the Guideline

recommendation such as being a single parent and sole support of two minor children and having

a serious medical condition, and specifically referenced the sentence imposed on Defendant

when considering section 3553(a)(6) as required. Accordingly, the Court shall deny Defendant’s

request that the Court vacate his sentence.

                                       IV. CONCLUSION

       For all of the foregoing reasons, the Court shall DENY Defendant’s [23] Motion to

Vacate Sentence pursuant to 28 U.S.C. § 2255. Furthermore, no Certificate of Appealability

shall issue from this Court. To the extent the Defendant intends to file an appeal, he must seek a

Certificate of Appealability from the United States Court of Appeals for the District of Columbia

Circuit in accordance with Federal Rule of Appellate Procedure 22.

   An appropriate Order accompanies this Memorandum Opinion.

   SO ORDERED.

   This is a final appealable order.

                                                              /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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