UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA, )
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v. ) Criminal No. 06-0318 (ESH)
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RICARDO SELDON, )
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Defendants. )
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MEMORANDUM AND ORDER
On February 24, 2010, the Court granted in part and denied in part defendant Ricardo
Seldon’s motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence. (Order, Feb. 24, 2010
[dkt. #38].) Before the Court is defendant’s motion for reconsideration. (Mot. for
Reconsideration, Feb. 28, 2010 [dkt. #39].) For the reasons stated herein, that motion will be
denied.
BACKGROUND
Defendant was convicted of unlawful possession with intent to distribute 5 grams or more
of cocaine base in violation of 21 U.S.C. § 841(a)(1) & 841(b)(1)(B)(iii). (Judgment at 1, June
28, 2007 [dkt. #31].) Under the applicable Sentencing Guidelines, defendant’s total offense level
was 27 and his sentencing range was 78 to 97 months imprisonment, with a statutory minimum
of 60 months imprisonment. The Court sentenced defendant to a 94-month term of
imprisonment, 60 months to be served consecutively and 34 months to be served concurrently to
the sentence he was already serving in United States v. Seldon, No. 05-cr-0260 (D.D.C.). (Id. at
2.)
Effective November 1, 2007, the United States Sentencing Commission amended the
Sentencing 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). That amendment was made
retroactive on March 17, 2008. U.S.S.G. App. C, Amend. 713 (Supp. 2008).
On January 19, 2010, defendant filed a motion under 18 U.S.C. § 3582(c)(2) seeking a
reduction in his sentence based on the amendment. (Def.’s Mot. to Reduce Sentence, Jan. 19,
2010 [dkt. #33].) Under the revised Guidelines, defendant has a total offense level of 25 and a
sentencing range of 63-78 months. Defendant’s motion asked the Court to reduce his sentence of
imprisonment from 94 to 75 months (again 3 months less than the high end of the sentencing
range), but also to reduce the amount of the sentence to be served consecutively from 60 months
to 48 months, on the ground that “a 19 month reduction in his sentence is a 20% reduction - the
60 months consecutive would be the equivalent of 48 months consecutive.” (Id. at 2). The
government did not oppose the reduction of defendant’s sentence from 94 to 75 months, but did
oppose any alteration in the time to be served consecutively on the ground that such a change
would “impermissibly revisit[] other sentencing issues and exceed[] the limited nature of an 18
U.S.C. § 3582(c) proceeding.” (Gov’t’s Resp. to Def.’s Mot. to Reduce Sentence, Feb. 16, 2010
[dkt. #36].) Agreeing with the government that it could not revisit other sentencing issues in a §
3582(c) proceeding, the Court reduced defendant’s sentence to 75 months imprisonment, but
kept the requirement that 60 months be served consecutively to the sentence in Criminal Action
No. 05-0260. (Order, Feb. 24, 2010 [dkt. #37].)
On February 28, 2010, defendant filed the pending motion, asking the Court to reconsider
its decision to keep the requirement that 60 of the 75 months be served consecutively and,
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instead, reduce the consecutive portion to 41 months. (Def.’s Mot. for Reconsideration, Feb. 28,
2010 [dkt. #39].) Defendant now accepts that under 18 U.S.C. § 3582(c)1 and U.S.S.G. §
1B1.10,2 “the Court is only authorized to reduce the term of imprisonment imposed and not other
components of the sentencing order.” (Def.’s Mot. for Reconsideration at 2.) But he now argues
that the only way to comply with this limitation is to impose a sentence where the number of
months running concurrently is the same as the original sentence – i.e., 34 months. In support of
his position, defendant relies on the language of 18 U.S.C. § 3584, specifically the fact that in a
case where multiple terms of imprisonment are imposed at different times, as in the present case,
1
Section 3582(c)(2) 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).
2
Section 1B1.10 of the Sentencing Guidelines provides, inter alia, that “proceedings
under 18 U.S.C. 3582(c)(2) and this policy statement do not constitute a full resentencing of the
defendant.” U.S.S.G. § 1B1.10(a)(3). Rather,
[i]n determining whether, and to what extent, a reduction in the defendant's term
of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is
warranted, the court shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the guidelines listed in
subsection (c) had been in effect at the time the defendant was sentenced. In
making such determination, the court shall substitute only the amendments listed
in subsection (c) for the corresponding guideline provisions that were applied
when the defendant was sentenced and shall leave all other guideline application
decisions unaffected.
U.S.S.G. § 1B1.10(b)(1) (emphasis added).
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the terms “run consecutively unless the court orders that the terms are to run concurrently.” Id. §
3584(a). Accordingly, defendant argues, “the statement by the Court in the June 26, 2007
judgment and commitment that 60 months were to run consecutively was meaningless” and
“[w]hat had meaning was that 34 months of the sentence was to be served concurrent with the
sentence in 05-cr-260.” (Def.’s Mot. for Reconsideration at 2.)
Defendant’s argument is creative, but not persuasive. It is apparent from the record that
the original sentence’s structure was based on the Court’s desire to ensure that 60 months – the
mandatory statutory minimum – be served consecutively to the sentence defendant was already
serving and that the remainder of the sentence – whatever that might be – be served concurrently.
It is not within the Court’s authority to revisit that decision now. See, e.g., United States v.
Dunn, Criminal Action No. 91-243-01, slip op. at 4 (D.D.C., Nov. 12, 2009).
Accordingly, it is hereby
ORDERED that defendant’s motion for reconsideration [dkt. #39] is DENIED; it is
further
ORDERED that defendant’s motion for leave to proceed on appeal in forma pauperis is
GRANTED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 21, 2010
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