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United States v. Stepney

United States District Court, N.D. California

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DOUGLAS STEPNEY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR COURT TO EXERCISE SUPERVISORY POWER AND RECALL JUDGMENT DOCKET NO. 2074

          EDWARD M. CHEN United States District Judge

         I. INTRODUCTION

         Defendant Douglas Stepney moves to recall this Court's previous judgment denying his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Docket No. 2074 (“Motion”). Stepney asks this Court to exercise its inherent supervisory power to recall its previous judgment and reduce his sentence from 262 months to 240 months, the mandatory minimum sentence for his offenses. The Court DENIES the motion.

         II. BACKGROUND

         In 2006, Douglas Stepney entered into a binding plea agreement under Federal Rule of Civil Procedure 11(c)(1)(C). Motion, Ex. A (Plea Agreement) at 8:17; Motion at 4:14. Stepney agreed to plead guilty to drug conspiracy (distributing and selling crack cocaine), aiding and abetting in a drive-by shooting, and conspiracy to use and carry firearms, for which he would receive a sentence of 23 years (276 months). Plea Agreement at 1:26-28; 2:1-12. Under the terms of the Plea Agreement, the adjusted offense level for the plea was 35. Id. at 8. At sentencing, however, this Court adopted a four-level Guideline enhancement not provided for in the agreement for Stepney's leadership role in the drug conspiracy. See Motion, Ex. E (“Transcript of Sentencing”) at 6:17-9:24. This enhancement resulted in a final adjusted offense level of 39. See id. at 9:10. That level, in turn, with Criminal History Category III, produced a guideline range of 324 to 405 months, but the Court nonetheless imposed the agreed upon sentence of 276 months.[1]Id. at 25:5-7, 25:18-22. During sentencing, Stepney's defense counsel failed to object to the “reframed” guideline calculations. Id. at 9:17. Stepney did not directly appeal this sentencing, as he had waived any right to appeal any aspect of his sentence. Motion at 3:11; Plea Agreement at 6:16-18.

         In 2007, Stepney filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, in part on the ground that he had been denied the effective assistance of counsel when his defense counsel failed to challenge the “leadership role” enhancement. Docket No. 1636. This Court denied the motion, finding because Stepney had received the agreed upon 23-year sentence, he could not have been prejudiced by any alleged deficiency. Docket No. 1790 at 5. Both Judge Patel and the Ninth Circuit denied Stepney's requests for a certificate of appealability from the order denying his § 2255 motion. Docket Nos. 1813; 1822.

         On July 16, 2015, Stepney filed a motion under 18 U.S.C. § 3582(c)(2) for a sentence modification based on retroactive Guideline Amendment 782. Docket No. 2066. Amendment 782 lowered the applicable Guideline Base Offense Level of certain drug amounts under the Guideline Section 2D.1 drug quantity table by two levels. See FCJ Federal Sentencing Guidelines Manual Amendment 782. As applied to Stepney's case, Amendment 782 reduced the base offense level by two levels. Stepney's revised guideline range, based on a final adjusted offense level of 37, Criminal History III, was 262-327 months. The Court granted Stepney's motion and reduced his sentence by 14 months to 262 months, the bottom of the revised range. Docket No. 2070.

         On December 21, 2016, Stepney filed the instant motion to recall the Court's judgment denying his earlier motion under 28 U.S.C. § 2255. Docket No. 2074. Stepney argues that the Court committed reversible procedural error at sentencing by adopting an enhancement under the Sentencing Guidelines that was not part of the plea agreement without giving him the chance to withdraw from the agreement. Absent this error, Stepney contends, he would have been eligible for a sentence reduction beyond the one he already received as a result of a retroactive Guidelines Amendment. Mr. Stepney argues that a reversible procedural error occurred at sentencing with the addition of the leadership enhancement, and that absent the error, he would have been eligible for a larger reduction in his sentence. Specifically, he argues that had the Court not added the leadership enhancement, his adjusted offense level, after the reduction to which he was entitled under Amendment 782, would have been only 33, with a corresponding guidelines range of 168-210 months. Accordingly, Stepney asks this Court to exercise its inherent supervisory power to recall its previous judgment and reduce his sentence from 262 months to 240 months, the mandatory minimum sentence for his felony offenses.

         III. DISCUSSION

         Generally, a federal court may not resentence a defendant once a term has been imposed. Dillon v. United States, 560 U.S. 817, 819 (2010). As the Ninth Circuit has explained, “[d]istrict courts do not have inherent power to resentence defendants at any time; their authority to do so must flow from either the court of appeals mandate under 28 U.S.C. § 2106 (1982) or from Federal Rule of Criminal Procedure 35.” United States v. Stump, 914 F.2d 170, 172 (9th Cir. 1990) (quotation marks omitted).[2] There are two exceptions to this general rule relevant here: First, 18 U.S.C. § 3582(c)(2) permits a court to reduce a sentence “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).” See United States v. Hicks, 472 F.3d 1167, 1170 (9th Cir. 2007) abrogated by Dillon v. United States, 560 U.S. 817 (2010). Second, a sentenced may be modified where a defendant prevails in a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Neither of these exceptions is applicable in this case.

         A. 28 U.S.C. Section 2255

         First, as explained above, Stepney has already unsuccessfully challenged his sentencing under § 2255. Under § 2255(h), a defendant may not bring a second or successive § 2255 motion without leave from the Court of Appeals. Stepney has not obtained such leave, nor could he, as it is only available upon a showing of newly discovered evidence “sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty, ” or where there is “a new rule of constitutional law, made retroactive to case on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h). Here, Mr. Stepney was denied a certificate of appealability for his first § 2255 motion, and has failed to obtain leave of the Ninth Circuit for this motion. Opposition at 2:8-9. Accordingly, no relief is available under § 2255.

         B. 18 U.S.C. Section 3852(c)(2)

         Nor may the Court resentence Stepney under 18 U.S.C. § 3582(c)(2). That provision permits a court to reduce a sentence where a defendant was sentenced under a U.S.S.G. range that has been subsequently lowered. As the Supreme Court has explained, this authority is narrow. Section 3582(c)(2) “does not authorize a resentencing”, but rather “permits a sentence reduction within the narrow bounds established by the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 831 (2010). Dillon squarely held that a Court may not, under § 3582(c)(2), correct unrelated mistakes in an original sentence. Id. That is precisely what Stepney seeks here. Stepney already sought and obtained the two-level reduction in his sentence available under ยง 3582(c)(2) for a sentence modification based on ...


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