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United States of America v. Neil Moses

January 27, 2012

UNITED STATES OF AMERICA
v.
NEIL MOSES



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before this Court is Petitioner Neil Moses' ("Moses") pro se Motion to Reduce Sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on a recent amendment to the Sentencing Guidelines which lowered the base levels applicable to cocaine base ("crack") offenses. For the reasons set forth below, this Motion is denied.

I. PROCEDURAL AND FACTUAL HISTORY

Moses and co-defendant Jermaine Whitfield were indicted in August 2000. A superseding indictment was filed on October 4, 2000, charging Moses with two counts of distribution of crack cocaine, one count of possession with the intent to distribute crack cocaine, and one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846. The charges stemmed from an undercover drug operation which utilized a government informant, Joseph Goff, and a Kell transmitter to tape record certain conversations that occurred during the controlled drug buys.

Goff, in the company of undercover Officer Brown, purchased crack cocaine from Moses on June 20 and July 7, 2000, outside of a residence at 2554 Sheridan Street, Philadelphia, where Dermont Cheeseboro, Moses' cousin, and Cheeseboro's girlfriend, Carmen Brown, lived. On July 13, 200, Goff and Officer Brown arranged for the purchase of a quarter pound of crack from Moses. While they waited with Moses outside the Sheridan residence, Whitfield arrived with the crack and entered the home. Once he was inside, Whitfield observed the police arrest Moses. Although Whitfield tried to hide the crack, it was discovered during a consensual search of the residence.

On May 15, 2001, the jury returned a verdict of guilty on all four counts. The Probation Office determined that Moses' offenses involved approximately 205.5 grams of crack. (PSR ¶¶ 21-23.) This quantity of crack resulted in a base offense level of 34. Moses was in criminal history category IV, and his guideline range was 210 to 262 months. Nevertheless, because Moses faced a mandatory minimum sentence of 240 months, his guideline range was 240 to 260 months. On October 1, 2001, this Court sentenced Moses and imposed the mandatory minimum sentence of 240 months imprisonment. Petitioner appealed the judgment, and the United States Court of Appeals for the Third Circuit affirmed the judgment on February 26, 2003. United States v. Moses, 58 Fed. Appx. 549 (3d Cir. 2003). On November 19, 2004, Moses filed a pro se Motion to Vacate and Correct Sentence pursuant to 28 U.S.C. § 2255. We denied this Motion in a Memorandum Opinion dated June 30, 2005. United States v. Moses, No. 00-54, 2005 WL 1532477, at *1 (E.D. Pa. June 30, 2005). Moses appealed this decision to the Court of Appeals who denied a Certificate of Appealability on February 2, 2009. Moses filed the instant Motion on November 21, 2011.

II. DISCUSSION

Moses claims that he is eligible for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a recent amendment to the Sentencing Guidelines. However, Moses is not eligible for a sentence reduction because he was sentenced to the statutory mandatory minimum penalty, and the retroactive guideline amendment does not affect the mandatory minimum sentence.

Section 3582(c)(2) provides:

[I]n 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 their 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).

In Section 1B1.10 of the Guidelines*fn1 , the Sentencing Commission has identified the amendments which may be applied retroactively pursuant to this authority, and articulated the proper procedure for implementing the amendment in a concluded case. The version of Section 1B1.10 applicable in this case became effective on November 1, 2011 (the date on which the retroactive amendment Moses seeks to apply is effective), and states in relevant part:

(1) In General.- In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subdivision

(c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of ...


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