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United States v. Moore

United States District Court, Third Circuit

April 30, 2013

UNITED STATES OF AMERICA
v.
GARY EUGENE MOORE, Defendant.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

The pro se defendant, Gary Eugene Moore, has filed the following motions: (1) a motion (Doc. 48) under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence under Amendment 750 to the sentencing guidelines; (2) a motion (Doc. 49) for summary judgment under Fed.R.Civ.P. 56(a) on his 3582(c)(2) motion; and (3) a motion (Doc. 50) submitting an additional reason why his sentence should be reduced.[1]

II. Background

On March 9, 2005, Defendant was named in a two-count indictment. Count I charged him with possessing, carrying, and using a firearm and ammunition during, in relation to, and in furtherance of the distribution of cocaine base on March 4, 2005, in violation of 18 U.S.C. § 924(c). Count II charged him with possession with intent to distribute and the distribution of fifty grams and more of cocaine base on March 4, 2005, in violation of 21 U.S.C. § 841(a)(1).

In May 2005, Defendant executed a written plea agreement in which he agreed to plead guilty to a one-count felony information charging him with a section 841(a)(1) violation, possession with intent to distribute cocaine base, also known as "crack cocaine, " on March 4, 2005. (Doc. 20, plea agreement § 1). As part of the bargain, the government agreed to move for a departure below the guideline range under U.S.S.G. § 5K1.1 if it believed Defendant had provided substantial assistance. ( Id. § 13). The felony information was filed on May 18, 2005, and Defendant pled guilty on May 25, 2005.

A presentence report (PSR) was prepared using the sentencing guidelines in effect on November 1, 2004. The PSR set Defendant's base offense level under U.S.S.G. § 2D1.1(c) at 34, using a drug quantity of 321.2 grams of crack cocaine. This quantity was based on the amount of drugs seized from Defendant's residence. (PSR § 13). The base offense level was increased by two points under U.S.S.G. § 2D1.1(b)(1) for the involvement of a firearm in the offense ( Id. § 14), resulting in an adjusted offense level of 36. ( Id. § 18). Three points were then deducted under U.S.S.G. § 3E1.1(b) for acceptance of responsibility, leaving Defendant with a total offense level of 33.[2] Defendant's criminal history category was VI, established either by way of his fifteen criminal history points, or by way of U.S.S.G. § 4B1.1(b) because he was a career criminal. (PSR § 37). This resulted in a guideline range of 235 to 293 months, narrowed to 235 to 240 months because the statutory maximum sentence was 240 months. ( Id. § 50).

At sentencing on August 29, 2005, the parties had no objections to the PSR. The government did not move for a reduction based on substantial assistance. (Doc. 35, sentencing minutes). Defendant was sentenced to 199 months, a downward departure from the low end of the range of about 16%. He was also sentenced to three years of supervised release. He took no direct appeal, nor did he file a motion under 28 U.S.C. § 2255.

On February 3, 2009, Defendant filed a counseled motion for a reduction in his sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 706 to the sentencing guidelines. Amendment 706 generally reduced the base offense level for crack cocaine offenses by two levels. Application of Amendment 706 reduced Defendant's base offense level from 34 to 32. With the adjustment for the involvement of the firearm and the adjustment for acceptance of responsibility, the total offense level was reduced to 31. With a criminal history category of VI, Defendant had a guideline range of 188 to 235 months. On March 30, 2009, Defendant's sentence was reduced to 156 months, a comparable reduction to the one granted from the low end of the original sentencing range. (Doc. 41).

On November 7, 2011, Defendant filed a pro se motion seeking a reduction in his sentence under Amendment 750 to the sentencing guidelines. On the same day, counsel was appointed to represent Defendant on the motion, pursuant to this court's standing order. On November 14, 2011, we denied the November 7 motion without prejudice to the filing of a counseled motion seeking a reduction under Amendment 750. On June 13, 2012, we granted counsel's motion to withdraw because Defendant wanted to represent himself in seeking a sentence reduction.

Defendant then filed the three motions currently pending.

III. Discussion

The United States Sentencing Commission has authority to amend the guidelines, 28 U.S.C. § 994(o), and to provide that any amendment has retroactive effect. Id., § 994(u). Under 18 U.S.C. § 3582(c)(2), a defendant can seek the benefit of a retroactive amendment by a motion to modify his sentence. Any sentence reduction must take into account "the factors set forth in 18 U.S.C. § 3553(a) to the extent that they are ...


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