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United States v. Smith

United States District Court, Tenth Circuit

December 13, 2013




This matter is before the Court on Defendant Kevin D. Smith's pro se Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2). (Doc. # 76.)


On July 26, 1995, Mr. Kevin Smith pleaded guilty to conspiring to possess more than 50 grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, and money laundering, in violation of 18 U.S.C. § 1956. The court accepted his plea under Federal Rule of Criminal Procedure 11(e)(1)(C) (current version at Fed. R. Crim. P. 11(c)(1)(C)). (Doc. # 8.) As a part of the plea, he also agreed to plead guilty to first degree murder in state court. (Doc. # 22 at 2.) On October 4, 1995, he was sentenced by a federal district court judge to life imprisonment. (Doc. # 15.) In its statement of reasons for the sentence, the court adopted the factual findings and guideline applications of the presentence investigation report ("PSR"). (Doc. # 16 at 4.)

The PSR placed Mr. Smith in criminal history category VI and assigned him a total offense level of 39. It offered two bases for determining that VI was the proper criminal history category. First, Mr. Smith was a career offender under U.S.S.G. § 4B1.1. (Doc. # 75 at 9.) Second, his past offenses generated 16 criminal history points, which exceeds the 13 points required for category VI in the sentencing table. ( Id. at 17-18.) See also United States Sentencing Manual ("U.S.S.G.") § 5A.

The PSR's calculation of Mr. Smith's offense level started with the Guideline provision covering cocaine base offenses, U.S.S.G. § 2D1.1. (Doc. # 75 at 7.) In 1995, that provision assigned Mr. Smith a base offense level of 38 because the amount of cocaine base involved in the conspiracy offense exceeded 1.5 kilograms. ( Id. ) See also U.S.S.G. § 2D1.1(c)(1) (1994). From there, Mr. Smith's offense level was increased by four levels: two because the offense involved possession of a dangerous weapon, see § 2D1.1(b) (1994), and two for his managerial role in the conspiracy, see § 3B1.1(c). (Doc. # 75 at 7.) The resulting adjusted offense level of 42 was applied to Mr. Smith because it exceeded the adjusted offense level assigned to Mr. Smith's other offense for money laundering. ( Id. at 8.) See also U.S.S.G. § 3D1.3. Additionally, despite Mr. Smith's career offender status, the 42 offense level calculated from § 2D1.1 was applicable because it exceeded the 37 offense level produced by the career offender Guideline.[1] (Doc. # 75 at 9.) See also U.S.S.G. § 4B1.1. The Guidelines then prescribed a three-level reduction due to Mr. Smith's acceptance of responsibility, yielding an adjusted offense level of 39. (Doc. # 75 at 7.)

In 2010, Congress enacted the Fair Sentencing Act ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372, to ameliorate the sentencing disparity between offenses involving cocaine base and those involving cocaine powder. The FSA directed the Sentencing Commission to amend the sentencing guidelines to reflect this change. United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir. 2013) In turn, the Commission increased the quantity of cocaine base necessary to trigger each base offense level in the § 2D1.1 Guideline, see U.S.S.G. app. C, amend. 748 (2011), and made that amendment permanent and retroactive. See Lucero, 713 F.3d at 1026 (citing U.S.S.G. app. C, amends. 750, 759 (2011)). The effect pertinent here was to lower the base offense level for crimes involving five kilograms of cocaine base from 38 to 36. See U.S.S.G. § 2D1.1 (2011).

In the instant motion, Mr. Smith petitions this Court to exercise its power under 18 U.S.C. § 3582(c)(2) and reduce his sentence pursuant to the Guideline amendment. (Doc. # 76.)


Mr. Smith is proceeding pro se, and therefore the Court construes his pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a reasonable reading of Mr. Smith's pleadings would entitle him to relief, his "failure to cite proper legal authorities, his confusion of legal theories, his poor syntax and sentence construction, [and] his unfamiliarity with pleading requirements" should not stand in the way. See United States v. Solarin, 2009 WL 3698529, at *2 (D. Colo. 2009) (unpublished) (citing Hall, 935 F.2d at 1110). Still, Mr. Smith bears the burden of alleging sufficient facts to entitle him to relief on a recognized legal claim. See id. (citing Hall, 935 F.2d at 1110).


Mr. Smith contends that 18 U.S.C. § 3582(c)(2) authorizes this Court to reduce his sentence because the sentence was based on a sentencing range that has subsequently been lowered pursuant to the FSA. (Doc. # 76 at 2.) However, because the amended Guidelines would not have the effect of lowering Mr. Smith's sentencing range, the Court determines that it lacks jurisdiction to resentence Mr. Smith.

Generally, federal courts lack authority to "modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). However, § 3582(c)(2) permits the Court to reduce a prisoner's sentence if it was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Additionally, any reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c)(2). According to those statements, a prisoner's sentence may be reduced only if the amendment would have "the effect of lowering the... applicable guideline range." U.S.S.G. § 1B1.10(a)(1) (2011). Finally, before reducing a sentence, the Court must "consider[] the factors set forth in 18 U.S.C. § 3553(a) to the extent they are applicable."

As a preliminary matter, this Court must decide whether Mr. Smith's sentence was "based on" a Guideline range that since has been retroactively amended. Freeman v. United States, ___ U.S. ___, ___, 131 S.Ct. 2685, 2700 (2011) (Sotomayor, J., concurring).[2] A sentence imposed pursuant to a guilty plea under Federal Rule of Criminal Procedure 11(c)(1)(C) is based on the Guidelines only if the plea agreement "expressly ...

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