Opinion
Case No. 98-40017-001-JAR
May 13, 2003
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO MODIFY
This matter is before the Court on Petitioner/Defendant Matthew W. Headley's pro se Motion to Modify Term of Imprisonment (Doc.84) filed May 11, 2003. The government has not filed a response in this matter. After consideration of the record, as well as defendant's arguments and the applicable law, the Court is prepared to rule.
Defendant brings his motion under 18 U.S.C. § 3582(c) which allows for modification of an imposed term of imprisonment only under narrow circumstances, including:
(2) 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 they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Defendant argues that "Amendment 9, which became effective November 1, 2000," ensured that a defendant is not "double counted" or punished twice for the same conduct as he was. Defendant refers to an amendment, found at U.S.S.G. § 2K2.4, Application Note 4 which states, "[i]f a sentence under this guideline [§ 2K2.4] is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense." This guideline prohibits a five level enhancement of the offense level for a robbery, for using or brandishing a firearm during the robbery, if the defendant is also sentenced to a § 924(c) firearms charge for use of the weapon during the same robbery.
Specifically, Defendant contends, he was sentenced on December 16, 1998 by the Honorable Dale E. Saffels and that his sentence included a five level enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(c) for brandishing, possessing or displaying a firearm, and which constituted double counting because he was also sentenced on a count of 18 U.S.C. § 924(c).
This case has been reassigned to the undersigned judge, because the Honorable Dale E. Saffels passed away in 2002.
The Court's review of the record reveals that there was no double counting. Defendant was sentenced on four counts:
Count 1: Robbery, in violation of 18 U.S.C. § 1951;
Count 3: Robbery, in violation of 18 U.S.C. § 1951;
Count 4: Use of a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c); and
Count 5: Conspiracy to Obstruct, Delay and Affect Commerce by Armed Robbery, in violation of 18 U.S.C. § 1951.
On Count 1, relating to a robbery on January 7, 1998, the sentence was enhanced by a five point increase in the base offense level, for brandishing a firearm, as U.S.S.G. § 2B3.1(b)(2)(C) allows. Although in Count 2 there was a corresponding § 924(c) charge using a firearm in the same January 7, 1998 robbery, Count 2 was dismissed, so there was no double counting. Defendant was also sentenced on Count 3, for a robbery occurring on January 19, 1998, but this sentence was not enhanced, because he was also sentenced on Count 4, the corresponding § 924(c) conviction for using a firearm during the Count 3 robbery. Thus, there was no double counting with respect to those counts. Finally, Count 5, which related to a separate robbery on January 19, 1998 had a corresponding gun charge in Count 6. But, Count 5 was grouped with Count 3 for sentencing purposes, and the corresponding gun charge in Count 6 was dismissed. So, there was no double counting with respect to Counts 5 and 6.
Thus, Defendant's sentence included no double counting or dual punishment for the same offense conduct. He was sentenced appropriately in all respects.
IT IS THEREFORE ORDERED that Defendant's Motion to Modify Imprisonment is DENIED.