Summary
In Fraley, the court retroactively amended defendant Fraley's PSR to remove a two-level firearm enhancement because the record demonstrated that the district court and the government “clear[ly]” intended that Fraley would be eligible for a credit of up to one year off her sentence upon successful completion of the RDAP program.
Summary of this case from United States v. PierceOpinion
CRIMINAL ACTION NO. 05-188-KSF, (Civil Action No. 07-18-KSF).
June 27, 2007
OPINION AND ORDER
This matter is before the Court on the Motion [DE #15] of the defendant, Becky L. Fraley, pro se, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct her sentence imposed in this action on March 27, 2006. The United States filed its response noting that it has no objection to Fraley's motion. The matter was referred to the Magistrate Judge who, on June 7, 2007, issued Proposed Findings of Fact and Recommendation that the motion should be granted to the extent that Fraley's presentence report be amended to remove the 2-point enhancement in her offense level for possession of a dangerous weapon. [DE # 157]. Neither the United States nor the defendant have filed objections, and the time for filing same has passed.
On December 21, 2005, Fraley entered her guilty plea to a two-count Information charging that on or about April 11, 2005 and May 23, 2005, Fraley and others conspired to knowingly and intentionally manufacture methamphetamine, a Schedule II controlled substance, a violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. She was subsequently sentenced to 36 months imprisonment, to be followed by a three-year term of supervised release. At the time of sentencing, the district court made the following recommendation to the Bureau of Prisons:
It is recommended that the defendant be designated to the Federal Prison Camp at Alderson, West Virginia, so that she can participate in the intensive drug education and treatment program. It is recommended that she be permitted to participate as soon as possible so that she may then be sent back to the camp facility at Lexington, Kentucky.
Fraley filed her § 2255 motion on the grounds that as a result of a 2-point enhancement contained in her presentence report for possession of a gun, she has been denied credit for time off her sentence, pursuant to 18 U.S.C. § 3621(e), upon completion of the Bureau of Prison's Residential Drug Abuse Treatment Program ("RDAP"). The United States has no objection to Fraley's motion and acknowledges that it was the government's intent, as well as the court's intent during sentencing, that Fraley be eligible for early release upon completion of the RDAP.
Reviewing Fraley's motion, the Magistrate Judge first determined that the district court has authority under 28 U.S.C. § 2255 to remove the gun enhancement from Fraley's presentence report based upon Hickerson v. Willingham, 2006 WL 3422186 (D.Conn. Nov. 28, 2006). Then, the Magistrate Judge reviewed the transcript of Fraley's sentencing hearing and determined that it was clearly the district court's intent that upon completion of the RDAP, Fraley should be eligible for credit on her sentence pursuant to 18 U.S.C. § 3621(e). The BOP, however, is precluded by its regulations from permitting Fraley any credit on her sentence as a result of the 2-point gun enhancement in her presentence report. Accordingly, the Magistrate Judge recommended that Fraley's § 2255 motion be granted to the extent that her presentence report be amended to remove the 2-point enhancement in her offense level for possession of a dangerous weapon.
The Court, upon de novo review of this matter, agrees with the Magistrate Judge's recommendation. Accordingly, Fraley's § 2255 motion will be granted, and her presentence report shall be amended to remove the 2-point enhancement in her offense level for possession of a dangerous weapon.
The Court, being otherwise fully and sufficiently advised, HEREBY ORDERS:
(1) The Magistrate Judge's proposed findings of fact and recommendation [DE #21] are ADOPTED as and for the opinion of the Court;
(2) Defendant's motion to vacate, correct or set aside her sentence [DE #15] is GRANTED to the extent that her presentence report be amended to remove the 2-point enhancement in her offense level for possession of a dangerous weapon;
(3) The Clerk is DIRECTED to SERVE a copy of this Opinion Order on the United States Probation Office;
(4) The United States Probation Office shall FILE under seal an amended presentence report in accordance with this Opinion Order WITHIN 30 DAYS, and shall TENDER a copy to the appropriate Bureau of Prisons personnel; and
(5) Judgment will be entered contemporaneously with this opinion and order in favor of the defendant, Becky L. Fraley.