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United States v. Lewis

United States District Court, D. Colorado

March 23, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent
v.
2. JENNIFER JO LEWIS, Defendant-Movant.

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 AND DENYING MOTION FOR RECONSIDERATION 18 U.S.C. § 3742(e), POST SENTENCING REHABILITATION PROGRAMMING

          William J. Martinez United States District Judge.

         This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 184[1]) and Motion for Reconsideration 18 U.S.C. § 3742(e) Post Sentencing Rehabilitation Programming (ECF No. 183) filed pro se by the Defendant-Movant, Jennifer Jo Lewis, on December 18, 2017. As directed by the Court, the Plaintiff-Respondent (“Respondent”) has filed a response to the motions (ECF No. 187) and Ms. Lewis has utilized the opportunity provided by the Court to submit a reply (ECF No. 189). Following a review of the pending matters and pertinent materials contained within the record, the Court denies the motions.

         I. BACKGROUND

         On August 18, 2015, an Indictment was filed with this Court against Ms. Lewis and a co-defendant. (ECF No. 1). Ms. Lewis was charged in two counts of the Indictment:

1. Count 1, which alleged that on or about July 23, 2015, Ms. Lewis and her co-defendant knowingly and intentionally possessed with the intent to distribute more than 50 grams of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii). (Id. at 1).
2. Count 4, which alleged that on or about July 23, 2015, Ms. Lewis, being an unlawful user of a controlled substance, as defined in 18 U.S.C. § 802, did knowingly possess a firearm and ammunition, in and affecting interstate commerce, in violation of 18 U.S.C. § 922(g)(3). (Id. at 2).

         Pursuant to a written plea agreement (ECF No. 76), on June 9, 2016, Ms. Lewis pleaded guilty to Count 1 of the Indictment (ECF No. 75). As part of the plea arrangement, the Government agreed to file a motion to dismiss Count 4 of the Indictment. (ECF No. 76 at 1). As noted in the Plea Agreement, the maximum penalty range to which Ms. Lewis was subject for the violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii) was 10 years to life imprisonment; no more than 10 million dollar fine, or both; not more than five years supervised release; $100 special assessment fee. (Id. at 3).

         A Presentence Investigation Report and Sentencing Statement (“PSR”) for Ms. Lewis was ordered by the Court. (ECF No. 75). The PSR was prepared and revised by the U.S. Probation Office for the Court's reference at sentencing. (ECF Nos. 118 and 119). Based on a total offense level of 31 and criminal history category of I, the PSR calculated the Guidelines imprisonment range to be 108 months to 135 months. (ECF No. 118 at 15). However, the statutorily authorized minimum sentence pursuant to 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii) is 10 years. Therefore, the Guideline range for Ms. Lewis was 120 months to 135 months, with the PSR recommending the minimum period of imprisonment allowed by statute as 120 months. (ECF 118-1 at 2). By motion, Ms. Lewis requested the Court impose a below-statutory guideline sentence of 48-months pursuant to 18 U.S.C. § 3553(a). (ECF No. 115).

         Ms. Lewis was sentenced on November 30, 2016. Considering all relevant factors in the record before the Court, to include Ms. Lewis' motion for a variant sentence which was granted in part, a term of imprisonment of 56 months was imposed. (ECF No. 134). The Judgment in a Criminal Case was entered on December 5, 2016. (ECF No. 135). Ms. Lewis did not file a direct appeal.

         Acting pro se, Ms. Lewis filed her Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”) (ECF No. 184) and her Motion for Reconsideration 18 U.S.C. § 3742(e) Post Sentencing Rehabilitation Programming (“Motion for Reconsideration”) (ECF No. 183) on December 18, 2017.

         II. Standard of Review

         The provisions of 28 U.S.C. § 2255 allow a prisoner in federal custody to collaterally attack a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion is not a substitute for a direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).

         The Court must construe the § 2255 Motion and Motion for Reconsideration liberally because Ms. Lewis is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10thCir. 1991). However, the court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         III. Analysis

         A. Ms. Lewis' Motion For Reconsideration

         Ms. Lewis moves the Court for reconsideration of her sentence pursuant to 18 U.S.C. § 3742(e) on the grounds that she has been rehabilitated. (ECF No. 183). She asserts she is entitled to relief under Pepper v. United States, 562 U.S. 476 (2011). Upon review of the authorities cited by Ms. Lewis, the Court finds that such relief is not available.

         The provisions of 18 U.S.C. § 3742(e) establish the factors to be considered in the limited review of a sentence by courts of appeals, but does not expand the authority of the district courts to review sentences. See 18 U.S.C. § 3742(e) (“Upon review of the record, the court of appeals shall determine . . .”) (emphasis added). Ms. Lewis cites the Supreme Court's opinion in Pepper v. United States, ostensibly arguing she “could be considered for a reduction of sentence, ” because in Pepper a downward variance was based on the Defendant's “lack of history of violence and [ ] Post-Sentencing Rehabilitation.” (ECF No. 183). However, the case principally relied on by Ms. Lewis is distinguishable from her case.

         The posture of the case in Pepper involved a district court's resentencing of a defendant after the court of appeals had reviewed the prior sentence and remanded the matter to the district court. In that case, the Supreme Court held that evidence of post-sentencing rehabilitation is relevant and may support a downward variance “when a defendant's sentence has been set aside on appeal and [her] case remanded for resentencing.” Id., 562 U.S. at 490-91. In this case, however, the United States Court of Appeals for the Tenth Circuit has not reviewed Ms. Lewis' sentence. Ms. Lewis is not before this Court on remand for resentencing and therefore, this Court does not have authority to revisit her sentence. The holding of Pepper and the provisions of 18 U.S.C. § 3742 are inapplicable in this case.

         Liberally construing the motion as a notice of appeal pursuant to Rule 4(b) of the Rules of Appellate Procedure, such a notice would be untimely. Fed. R. App. P. 4. Ms. Lewis was sentenced on November 30, 2016. Under Rule 4(b), a notice of appeal must be filed within 14 days after the entry of the judgment for the order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). As previously indicated, the Judgment in a Criminal Case was entered on December 5, 2016. (ECF No. ...


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