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United States v. McDowell

United States District Court, E.D. Oklahoma

April 24, 2017



          James H. Payne United States District Judge.

         Before the Court is Defendant David Lewis McDowell's pro se motion, in which he asks the Court to reduce his criminal history points on his Presentence Investigation Report (“PSR”) and to change his “severity category.” (Doc. No. 116). Specifically, Defendant seeks a change to pages 9-10 of the PSR to reflect that as of July 19, 2015, fifteen years have passed “on the ‘charge' of ‘Robbery.'” Based on this proposed change to the PSR, Defendant requests a three-point reduction in his criminal history score and a reduction of the severity category from “moderate to low.” The Government opposes Defendant's request. (Doc. No. 118). On November 30, 2015, Defendant filed a Reply brief, which raises new issues pertaining to his sentencing. (Doc. No. 119). On March 17, 2016, Defendant filed a “Motion to Add or Amend, ” in which he reiterates his request for a reduction of his criminal history points based on the age of the robbery charge. (Doc. No. 121). On June 20, 2016, Defendant filed another amendment to his Motion, in which he requests examination of his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 122). For the reasons stated below, Defendant's requests are DENIED.


         A Grand Jury indicted Defendant on April 9, 2013, charging him with ten counts of wire fraud in violation of 18 U.S.C. § 1343 and seven counts of money laundering in violation of 18 U.S.C. § 1957. (Doc. No. 2 (Indictment)). On March 24, 2014, pursuant to a written plea agreement, Defendant entered a guilty plea to Count 12 of the Indictment, a money laundering charge for conduct that took place on October 27, 2008. (Doc. Nos. 2, 80). Under the plea agreement, Defendant waived his appellate and post-conviction rights, including the right to collaterally attack his sentence. (Doc. No. 83). The Government agreed to dismiss the remaining counts against Defendant prior to sentencing. (Doc. No. 104). The United States Probation Office prepared a PSR as to Defendant, which was filed with the Court. On October 29, 2014, the Court sentenced Defendant to 51 months imprisonment on Count 12 of the Indictment. (Doc. No. 105).


         I. Reduction of Defendant's Sentence

         A. Authority to Reexamine Defendant's Sentence

         Defendant seeks modification of his sentence. As a threshold matter, Defendant has provided no authority under which the Court may reexamine his sentence. “A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization.” United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (quotation omitted). Defendant's request for sentencing relief is not a direct appeal or a collateral attack under 28 U.S.C. § 2255.[1] Therefore, his motion depends on 18 U.S.C. § 3582(c) or Federal Rule of Criminal Procedure 36, neither of which is available here.

         Section 3582(c) “provides three avenues through which the court may ‘modify a term of imprisonment once it has been imposed.'” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir.1996) (quoting 18 U.S.C. § 3582(c)). “A court may modify a sentence: (1) in certain circumstances ‘upon motion of the Director of the Bureau of Prisons'; (2) ‘to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure'; or (3) ‘upon motion of the defendant or the Director of the Bureau of Prisons, ' or on the court's own motion in cases where the applicable sentencing range ‘has subsequently been lowered by the Sentencing Commission.'” Id. at 947-48 (quoting § 3582(c)(1)(A), (c)(1)(B), (c)(2)). Avenues one and three clearly do not apply here. Avenue two depends on Rule 35. Rule 35(a) provides: “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Defendant brings this motion long after the fourteen-day period laid out in Rule 35(a), making this provision inapplicable. Rule 35(b) provides for a reduction upon motion of the government, which has not been made here. Accordingly, Section 3582(c) and Rule 35 do not apply to Defendant's motion.[2]

         Rule 36 is equally inapplicable. Rule 36 provides: “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” While “Rule 36 gives the court authority to correct clerical-type errors, ” it “does not authorize substantive sentencing modification.” Blackwell, 81 F.3d at 948-49. Because Defendant seeks a substantive modification of his sentence, Rule 36 does not authorize a sentence reduction here.

         B. Merits of Defendant's Requests

         Even if Defendant were eligible for reexamination of his sentence, his requests would nonetheless be denied on the merits. The Court addresses each of Defendant's arguments below.

         1. 1983 Robbery Conviction

         In his motion, Defendant requests a reduction of his criminal history score, as stated on the PSR. In support of his request for a change to the PSR, Defendant points to his 1983 conviction for robbery, for which he received a ten-year suspended sentence. (PSR at 9-10). Defendant's suspended sentence was later revoked, and he was incarcerated until July 19, 2000, based on the revocation and parole violations. (PSR at 10). Based on the 1983 robbery count and subsequent incarceration, Defendant received three criminal history points on ...

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