UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
UNITED STATES OF AMERICA, )
)
)

) Criminal Action N0. 91-243-01(RCL)
v. )
)

JAMES THOMAS DUNN JR., ) F l L E D
)
Defendant. ) NOV 1 2 2009
NANCYM
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MEMORANDUM

I. INTRODUCTION

Defendant J ames Dunn’s motion under 18 U.S.C. § 3582(¢)(2) to reduce his sentence
based on amendments to the United States Sentencing Guidelines is before this Court. Upon
consideration of the motion, the Government’s Response to the motion, applicable law, and the
entire record herein, the motion will be GRANTED IN PART.
II. FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Dunn entered a plea of guilty to one count of unlawful possession with intent to
distribute 50 grams or more of cocaine base, also known as crack, in violation of 21 U.S.C. §
84l(a)(1). On October l6, 1991, the Court sentenced Dunn to a tenn of 121 months
incarceration, to be followed by a five year term of supervised release. At the time of sentencing,
the sentencing range under the United States Sentencing Guidelines was 121 to 151 months with
an offense level of 30 and a criminal history category of III. Two days later, defendant was
sentenced in a Superior Court matter to a term of 15 years to life.

Effective November 1, 2007, the United States Sentencing Commission amended the

Guidelines to provide for a two level reduction in the base offense level for crack cocaine
offenses. U.S.S.G. App. C, Amend. 706 (Supp. 2007). Later, Amendment 713 made the
reduction retroactively applicable. U.S.S.G. App. C, Amend. 713 (Supp. 2008). On March 17,
2008, the defendant filed a Pro Se Motion for Reduction of Sentence to 18 U.S.C. § 35 82 and the
amendments to the Guidelines. On August 3, 2009, defendant filed a Motion to Reduce Sentence
through counsel, asserting that defendant’s sentence should be reduced to a term of 120 months
with a greater reduction to a term that is partially concurrent with a sentence the defendant is
serving in the Superior Court matter. The govemment does not oppose a reduction of defendant’s
sentence from 121 months’ incarceration to 120 months incarceration but opposes any further
reduction. For the reasons that follow, defendant’s motion will be granted in part.
III. ANALYSIS

Pursuant to 18 U.S.C. § 3582(c)(2), a district court may not ordinarily modify a term of
imprisonment once it has been imposed except where expressly permitted by statute or by
F ederal Rule of Criminal Procedure 35 . 18 U.S.C. § 3582(c)(1)(B). One statutory exception to
this general rule provides that:

[I]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 . . . 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)(2).

Amendment 706 provides for such a reduction and both parties agree that Amendment
706 applies in this case. However, the Court’s power to reduce sentence is discretionary. In
determining a sentence that is "sufficient, but not greater than necessary" to fulfill these

2

penological objectives, a court must consider (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the penological purposes stated above; (3) the
kinds of sentences available; (4) the kinds of sentence and the sentencing range established by
the Guidelines; (5) any applicable Guidelines policy statement; (6) the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. §
3553(a).

Further, U.S.S.G. § 1B1.10 comment., n.l(B)(ii) directs the district court, when
considering a sentence reduction as a result of an amended guideline, to "consider the nature and
seriousness of the danger to any person or community that may be posed by a reduction in the
defendant’s tenn of imprisonment." Additionally, the district court is allowed to consider post-
sentencing conduct when determining whether-and to what extent-a reduction is warranted.
U.S.S.G. § 1B1.10 comment., n.1(B)(ii). All original sentencing determinations are to remain
unchanged with only the amended guideline range substituted for the unamended guideline range
used at sentencing. See U.S.S.G. § lB1.10, comment. n.2.

Under the revised guidelines, defendant’s offense level in this case is now 28. At the
established criminal history category III, this results in a sentencing range of 97 to 121 months.
Nevertheless, Dunn’s sentence can not be reduced to below the mandatory statutory minimum
sentence of 120 months, pursuant to 21 U.S.C. (b)(l)(A)(iii). Courts have consistently
established the principle that this Court can not reduce the sentence below the statutory
minimum. See, e.g., United States v. Eggersdorj", 126 F.3d 1318, 1320 (11th Cir. 1997), cert.

denied, 523 U.S. 1013 (1998); United States v. Dimeo, 28 F.3d 240, 241 (lst Cit. 1994). See also

United States v. Profeta, N0. 01-3030, 2001 WL 1488668, at *1 (D.C.Cir.2001) (per curiam);
United States v. Smartt, 129 F.3d 539, 542 (10th Cir.1997); United States v. Marshall, 95 F.3d
700, 701 (8th Cir.1996); United States v. Pardue, 36 F.3d 429 (5th Cir.1994); United States v.
Hanlin, 48 F.3d 121, 124-25 (3d Cir.1995).

Under the amended sentencing guidelines, the sentencing range applicable to the
Defendant is 97 to121 months. However, the defendant is subject to a statutory mandatory
minimum sentence of 120 months. Additionally, there is no basis to the defendant’s claim that
the Court may permit the sentence to run concurrently with his sentence in the Superior Court
case and this claim will be denied. Therefore, defendant’s motion to reduce his sentence pursuant
to § 3582 is granted in part and defendant will be sentenced to 120 months incarceration.

IV. CONCLUSION AND ORDER

Section 3553 directs the Court to "impose a sentence sufficient, but not greater than
necessary," to comply with the factors it spells out. The Court concludes that a reduction to 120
months is sufficient to reflect the seriousness of the offense and provides just punishment.
Accordingly, the defendant’s motion to reduce sentence will be granted in part and the
defendant’s previously imposed sentence of imprisonment of 121 months is reduced to 120
months.

A separate order shall issue this date.

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Chief(tfudge Royce C. Lamberth Date

